Morgan v. Beuthein
| Decision Date | 17 May 1898 |
| Citation | 75 N.W. 204,10 S.D. 650 |
| Parties | MORGAN et al. v. BEUTHEIN et al. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Hutchinson county; E. G. Smith, Judge.
Action by Fred A. Morgan and another against Martin Beuthein and another. From a judgment for defendants, plaintiffs appeal. Affirmed.
W. J Hooper, for appellants. M. T. Halphide, for respondents.
This is an action to foreclose a lien for material furnished for the erection of buildings on property claimed and occupied as a homestead. Judgment for the defendants and the plaintiffs appealed.
The defendant Beuthein filed a separate answer, alleging that the lumber and material for which the plaintiffs sought to enforce a lien were furnished to his co-defendant, Lamaack who was the head of a family, and who claimed, and with his family occupied, the premises as a homestead; that the homestead did not embrace to exceed 160 acres in extent, and did not exceed in value $5,000; and that subsequently the said Lamaack sold and conveyed said premises to this defendant. Beuthein demanded judgment that the action be dismissed as to him, and that said claim be declared not to be a lien upon said premises. To this answer the plaintiffs interposed a demurrer upon the ground that the answer did not state facts sufficient to constitute a defense. The demurrer was overruled, and, the plaintiffs electing to stand on their demurrer, judgment was rendered for Beuthein, dismissing the action as to him Lamaack did not appear in the action. The only error assigned is that the court erred in overruling the demurrer.
The plaintiffs contend that the answer was insufficient by reason of the omission of certain technical averments, but their contention is without merit, and we are clearly of the opinion that the answer is sufficient in form. This court held, in Fallihee v. Wittmayer, 70 N.W. 642, that the homestead is exempt from sale for a mechanic's lien. The learned counsel for plaintiffs challenges the correctness of this decision, but, upon review of that question, we are fully satisfied with the decision, and we do not deem it necessary to further consider that question.
This case presents the further question as to whether or not the grantee of the owner of the homestead holds the property free of any lien for the material so furnished, and used by the owner of the homestead. We are clearly of the opinion that being exempt while owned and occupied as a homestead by the party ordering the material, it is equally exempt after the sale of the homestead. The decisions are irreconcilably in conflict upon this question, but they depend so largely upon the statutes of the states in which they are made that any attempt to review them would be useless labor.
The plaintiffs contend that the homestead is a personal privilege that continues only so long as the property is used and occupied as a homestead, and that when the party disposes of his homestead the lien may be enforced. We cannot concur in this view. The whole theory upon which such an exemption of the homestead is based is opposed to this contention. The...
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