Somers v. Somers
| Decision Date | 20 June 1911 |
| Citation | 131 N.W. 1091,27 S.D. 500 |
| Parties | SOMERS v. SOMERS et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lyman County; Frank B. Smith, Judge.
Action by Lafayette Somers against Peolia L. Somers and another. From a judgment for plaintiff, defendants appeal. Reversed.
Preston & Wagner, for appellants.
James Brown, for respondent.
This is an action by the plaintiff, the father of the defendants seeking to quiet title, as against said defendants, in and to an undivided one-third interest in certain land in Brule county, and also seeking to be adjudged the holder of a life estate in the whole of said land; the plaintiff claiming as the heir of, and as the husband of, the former owner of said land, the defendants claiming title as the grantees of such former owner. The cause was tried to the court without a jury. The court made findings of fact and conclusions of law in favor of the plaintiff, except that it found against his claim of life estate in said lands. Judgment entered upon such findings, and, a new trial having been denied, the defendants have appealed from such judgment and order denying a new trial.
No question is raised upon the pleadings. There is ample evidence to sustain the following facts found by the trial court: The plaintiff about the year 1881 made homestead entry of the land in question, and received patent thereon in 1883. In 1885, by full warranty deed, he conveyed said land to his wife, at which time plaintiff together with his wife and their minor children were living on said premises, among said minor children being the two defendants herein. Plaintiff and his wife lived upon said premises from their entry thereon until the year 1888, when, owing to a family quarrel, the plaintiff left said land, leaving his family thereon, and has never returned thereto or in any manner contributed to the support of his family. About the year 1899 the wife entered a homestead filing on another tract of land and made final proof thereon in the year 1904, remaining upon the land in controversy more or less all of the time after entry and up to final proof. After final proof she returned to and lived continuously upon the land in controversy. After plaintiff left his family, he lived by himself at different places in South Dakota, and for some 15 years prior to this suit lived in Chamberlain. In February, 1908, while the land in controversy was occupied by the mother of these defendants she executed to them a warranty deed of said premises with the usual covenants therein, except with a covenant that the deed was not to be delivered or go into effect until her death. This deed was left in escrow to be delivered to the grantees upon the grantor's death, and, said grantor having died in March, 1909, the deed was then delivered to the grantees and they placed the same of record. This deed was not signed by the plaintiff, and he did not in any manner concur in the attempted conveyance of said premises to the defendants. During all the time hereinbefore mentioned, the plaintiff was the husband of the party who executed the deed to the defendants, such marriage being dissolved only by the death of the wife.
The appellants complain of the refusal of the court to make certain further findings, and we are satisfied that the evidence fully warranted a finding to the effect that the desertion and abandonment of his family by the plaintiff was without any justifiable cause whatsoever, and the appellants were clearly entitled to such a finding if the same was material. The trial court found that the mother and children after their abandonment by plaintiff "continued to reside on the land in question as their homestead" until the death of the mother; and further found that the deed to defendants was executed "while the land was occupied as the family homestead." While the assignments of error are not as specific as they might be, yet we think they fairly raise the question of the correctness of these findings to the effect that the land in controversy was occupied as and remained the homestead of the mother until her death; and, if such findings are not supported by the evidence, a new trial must be granted.
It seems to be the theory of the appellants that a finding to the effect that the respondent's abandonment of the home and family was without cause would be material, in that it would support their contention that respondent was estopped, by his wrongdoing, from questioning the validity of the deed under which appellants claim title to the land. From the reading of their brief, it clearly appears that appellants have confounded the question of forfeiture of homestead right with that of estoppel to question validity of deed executed by spouse.
There is no question but that the trial court rightly held respondent had forfeited all homestead rights in and to the premises; but, to support such holding, the court should have made a finding to the effect that the husband's abandonment was wrongful. Murphy v. Renner, 99 Minn. 348, 109 N.W. 593, 8 L. R. A. (N. S.) 565, 116 Am. St. Rep. 418; Coe v. Nelson (Tenn. Ch. App.) 59 S.W. 170; Dickman v. Birkhauser, 16 Neb. 686, 21 N.W. 396.
Yet, if the wife had died without conveying the lands in question by deed or will, the respondent would, in spite of all his wrongdoing, have succeeded under the statute to the one-third of her property, and he therefore so succeeds if the deed left by her was a nullity. The question presented is not whether respondent has forfeited his claim to a homestead in the land in question, but whether he is estopped from alleging the invalidity of his wife's deed; such invalidity being based on lack of his signature.
It must be remembered that the statute of this state ), requiring the spouse to join in the execution of a deed to a homestead, does not in any manner confer upon such spouse any estate in said land (21 Cyc. 460, State v. Toomey [S. D.] 129 N.W. 563), but simply burdens this tract of land with a quality or condition by virtue of which it is impossible for the owner to make a valid deed without the spouse joining in the execution thereof.
To create an estoppel, there must have been some act or conduct upon the part of the party to be estopped, which has in some manner misled the party in whose favor the estoppel is sought and has caused such party to part with something of value or do some other act relying upon the conduct of the party to be estopped, thus creating a condition that would make it inequitable to allow the guilty party to claim what would otherwise be his legal rights. To illustrate, if A. had been seeking to buy the premises in question, and respondent, knowing the same, had by word or act allowed A. to believe that he had no interest in said premises and that the owner thereof was a single woman, and A., relying upon such acts or representations, took a deed to said premises executed by the wife only, the respondent might be held estopped from questioning the validity of the deed. It cannot, however, be claimed that the grantees in this deed were in any way misled into taking a deed executed by their mother only, relying upon the fact that she was a single person, because it is undisputed that they were fully advised of all the facts herein. It will therefore be seen that, no matter how wrongful the conduct of the plaintiff in abandoning his home, a finding in relation thereto is immaterial in this case, in so far as any question of estoppel is concerned.
Appellants however, contend that, inasmuch as the respondent had abandoned his home and family, and this abandonment was, as they claim and as the evidence clearly shows, wrongful and sufficient to effect a forfeiture of any homestead right he otherwise would have had in the homestead owned and possessed by his wife, she had the...
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