Myrick v. Bill

• Decision Date: 24 February 1888
• Citation: 37 N.W. 369,5 Dak. 167
• Parties: Myrick v. Bill et al.
• Court: South Dakota Supreme Court

37 N.W. 369

5 Dak. 167

Myrick

v.Bill et al.

Supreme Court of the Territory of Dakota.

February 24, 1888.

Appeal from district court, Stutsman county.

Action of claim and delivery, by Nathan Myrick against Rose A. Bill and Wilber W. Bill. Judgment for plaintiff, and defendants appeal.

Francis, J., dissenting.W. E. Dodge, for appellant. White & Hewit, for respondents.

SPENCER, J.

This was an action of claim and delivery to recover two frame buildings used as a dwelling and store, and claimed by the plaintiff to be his property by virtue of a certain bill of sale alleged to have been executed to him October 19, 1878, by one Harvey C. Miller, the then owner. The defendants deny that plaintiff is the owner, or entitled to the possession, of said buildings, and allege that at the time of the execution of said bill of sale said defendant Rose A. Bill was the wife of said Harvey C. Miller; that said buildings, and the land on which they stood, was the homestead of said defendant and her family at such time; and that she neither signed nor consented nor had knowledge of the execution of such bill of sale. After the close of the evidence upon the trial, certain questions of fact were submitted to the jury, which, with their answers, so far as they are material to the question we propose to consider, are as follows: “ First. When was the bill of sale in question executed? Answer. October 20, 1878. Second. Did the defendant Rose A. Bill and her then husband occupy the dwelling in controversy as their home from the spring of 1878 to the spring of 1879? A. They did. Third. Was the store in controversy used, during the time from the spring of 1878 to the spring of 1879, in direct connection with said dwelling-house, in the prosecution of said Miller's ordinary business? A. It was. Fourth. Has the defendant Rose A. Bill occupied said premises as her home since the spring of 1879? A. She has. Fifth. Did said Harvey C. Miller have the correspondence with a representative of the land department of the Northern Pacific R. R. Co. testified to by Mr. Bill in this case? A. Yes, he had.” [From this correspondence it appears that in the latter part of September, or early in October, 1878, and before the execution of the bill of sale in controversy, said Miller wrote the agents or commissioners of the land department of the Northern Pacific Railroad Company in regard to purchasing lot 1 in block No. 24, upon which the buildings in controversy were located. He received a reply that the lot could be had for $25. Miller then wrote that he was anxious to obtain the two lots, and would forward the money at any time, and desired to know when they would forward the deed. That the persons representing the railroad company then wrote assuring him he could have the lot at that price, and that they would send a man up in a short time to settle for the purchase.] In the course of the trial, it was admitted by the counsel for the respective parties in open court, and entered in the minutes, “that lots one and two in block twenty-four, being the land upon which said buildings stood, as described in the pleadings, were contiguous lots, and did not exceed one acre in extent, and were within the town plat of the original town of Jamestown, D. T.; that the defendant Rose A. Bill did not sign or consent to the bill of sale in question; that the title to said land was in the Northern Pacific Railroad Company until May 14, 1879, and that said company conveyed said land to Harvey C. Miller by a good and sufficient deed of conveyance on the day last aforesaid; and that both buildings in controversy were situated on lot one in block twenty-four of the original town of Jamestown; and that the defendant Rose A. Bill was in the year 1877, and from that time until May, 1879, the lawful wife of said Harvey C. Miller.”

Without stopping to consider the question whether, under the homestead laws of this territory, anything more than actual possession and occupation of the land on which the house is...