O'Neill v. Bennett
| Decision Date | 01 March 1926 |
| Docket Number | 5425. |
| Citation | 207 N.W. 543,49 S.D. 524 |
| Parties | O'NEILL v. BENNETT et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Sanborn County; Frank B. Smith, Judge.
Action by Annie L. O'Neill against Joseph Bennett and others, in which defendants filed a cross-complaint and Robert O'Neill was brought in as an additional defendant. From the judgment, plaintiff and defendant Robert O'Neill appeal. Remanded, with instructions to modify judgment, and as so modified, judgment affirmed.
H. G Giddings, of Mitchell, for appellants.
T. J Spangler, of Mitchell, for respondents.
Annie O'Neill, the plaintiff herein, and the wife of Robert O'Neill, now one of the defendants, brought her action alleging the purchase by her husband in 1916 of a quarter section of land in Sanborn county, upon which she and her husband and family took up their residence in 1917 with the intention of making the same their permanent residence and homestead; that on March 10, 1919, she executed a location, claim, and description of homestead, describing said land, and caused the same to be recorded in the office of the register of deeds of Sanborn county, on March 10, 1919, at 9 o'clock a. m.; that thereafter, and on the afternoon of March 10, 1919, plaintiff's husband, Robert O'Neill, executed and delivered a warranty deed purporting to convey said land to the defendant Johnson, in which deed plaintiff refused to join, and at which time said Johnson knew said land was a homestead, and knew plaintiff refused to join in a conveyance thereof; that the defendant Johnson subsequently deeded said land to defendant Bennett, who had knowledge of all the facts, and that the defendant Nelson claimed the right to occupy said land as the tenant of Bennett; that on March 20, 1919, plaintiff's husband, Robert O'Neill, executed and delivered a warranty deed conveying said premises to plaintiff; and plaintiff asked that the pretended deed of March 10th from Robert O'Neill to defendant Johnson be determined null and void, and that fee title to said land be quieted in plaintiff against all claims or liens of the defendants or any of them. To this complaint the defendants answered, setting up title in the defendant Johnson by virtue of the deed of March 10, 1919, from Robert O'Neill, alleging that Bennett had no interest in the premises, but that defendant Nelson was entitled to occupy the same as the tenant of defendant Johnson, and alleging that said premises were not in fact the homestead of the O'Neills at the time of the conveyance thereof by Robert O'Neill to Johnson on March 10, and praying that the title to said premises be quieted in the defendant Johnson. Upon a trial of the case, the court found that said premises were not, at the time of conveyance to Johnson, the homestead of Robert O'Neill or Annie O'Neill, or either of them, that title to said premises passed to the defendant Johnson by virtue of the deed from Robert O'Neill on March 10, and entered judgment holding the defendant Johnson to be the absolute owner in fee of the premises, and quieting title thereto in him against the plaintiff, Annie O'Neill.
Thereupon the plaintiff, Annie O'Neill, appealed to this court, and the judgment of the lower court was reversed, and it was determined by this court, and has become the law of this case, that the quarter section in question was in fact the O'Neill homestead, and that the same had not been abandoned as such homestead, and that the deed from Robert O'Neill to defendant Johnson, on March 10th, passed no title to the premises. O'Neill v. Bennett et al., 181 N.W. 97, 43 S.D. 569.
After the case was returned to the circuit court on remand from the former appeal, the defendants were granted leave to bring in plaintiff's husband, Robert O'Neill, as an additional defendant, and were further granted leave to amend their answer. The amended answer is substantially the same as the original answer, but with this addition to the allegations of the counterclaim and cross-complaint; namely, that the defendant Johnson has paid to the defendant Robert O'Neill on the purchase price of said land the sum of $10,000, no part of which has ever been repaid, and that the premises in question exceed the value of $5,000, and are of the reasonable value of $20,000, and that the pretended deed from Robert O'Neill to Annie O'Neill on March 10th was given without any consideration and with fraudulent intent. The prayer is the same as that of the original answer-namely, that title to the premises be quieted in the defendant Johnson- but with the added alternative prayer that, if plaintiff, Annie O'Neill, should prevail in this action, then that the defendant Johnson should have and recover from Robert O'Neill the said sum of $10,000 and interest, and that said money judgment against Robert O'Neill should be adjudged a first lien upon the premises in question as to all excess value of said premises over and above the homestead allowance of $5,000. Demurrer interposed by plaintiff to the amended answer was overruled, whereupon two separate replies were filed.
The defendant Robert O'Neill admitted the receipt of $7,700 from the defendant Johnson, but alleged said payment was made with full knowledge and notice that the premises were a homestead, and that the wife refused to join in a conveyance thereof, and that very shortly after such payment the same was tendered back to defendant Johnson, who refused to accept it, and further pleading in abatement that the said Johnson had previously commenced an action in circuit court in Sanborn county against him (the said Rober O'Neill) and others, to recover said sum of $7,700, being the same identical debt upon which the said Johnson now sought to recover from him (Robert O'Neill) by the amended answer and cross-complaint in this action. The plaintiff replied to the allegations of the amended answer substantially as she had previously done, and specifically alleged that she paid to Robert O'Neill full value for said premises by him conveyed to her on March 20th, and alleged the existence of certain mortgages upon said premises which were first liens thereon at the time of the purchase by Robert O'Neill and had so continued.
The case was tried upon the issues so joined and the learned trial judge made findings and conclusions and entered judgment decreeing the plaintiff, Annie O'Neill, to be the owner in fee simple of the premises in question decreeing that the defendant Johnson have and recover from the...
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