State v. Weide
| Decision Date | 02 April 1912 |
| Citation | 135 N.W. 696,29 S.D. 109 |
| Parties | STATE ex rel. DILLMAN v. WEIDE et al., Trustees of Town of Revillo. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Grant County; C. X. Seward, Judge.
Action by the State, on the relation of J. A. Dillman, to prohibit B. Weide and others, trustees of town of Revillo, from submitting the question of granting permits for the sale of intoxicating liquors to the voters at the general election. From an order granting a peremptory writ prohibiting further proceedings, entered upon the sustaining of a demurrer to the defendants' answer, defendants appeal. Reversed and remanded.
Thos L. Bouck, for appellants.
Geo. S Rix, for respondent.
Appeal from the circuit court of Grant county. A petition was filed in the office of the clerk of the incorporated town of Revillo, purporting to be signed by 28 qualified voters requesting the submission at the next general municipal election of the question of granting permits for the sale of intoxicating liquors within the municipality for the then ensuing year. This proceeding was instituted to prohibit the trustees and clerk from submitting said question to the voters as demanded in the petition, and alleging that said officers were without jurisdiction for the reason that the petition was not signed by 25 legal freeholder voters of the town, and that seven of the persons who signed said petition were not freeholders and therefore not qualified to sign said petition. An alternative writ of prohibition was issued, to which defendants made return and answer, admitting that 3 of the persons who had signed the petition were not freeholders, but denying the allegations of plaintiff as to the other 4 persons named, and alleging that the petition was signed by 25 legal freeholder voters. It is further alleged in the answer that 24 of the signers of said petition were owners of the absolute fee to lands within said town, and that one Hans Helgeson, was a legal freeholder voter, and had a legal freehold estate and interest in lot 5, block 3, of said town by virtue of a contract of sale thereof, entered into between said Hans Helgeson and one Chloe Dillman on the 26th day of October, 1910, whereby the said Chloe Dillman, in consideration of the sum of $80, agreed to convey by warranty deed the fee-simple title to said lot to said Hans Helgeson on the 1st day of November, 1911, and that Helgeson under and by virtue of said contract had paid $40 of the consideration for said lot, and had made all payments and done all things required under and by virtue of said contract, and had been put in quiet and peaceable possession thereof since the date of said contract, had paid all taxes and assessments thereon since said contract was made, was holding the same in good faith, and was financially able to pay, and would pay, the balance of the purchase price for said lot and secure a warranty deed therefor on the 1st of November, 1911; that the said Chloe Dillman at the time said contract was made was the owner in fee of said lot; that said contract was acknowledged so as to entitle it to record, and on the 1st day of November, 1910, was duly recorded in the register of deeds office of said county. To this answer plaintiff demurred on the ground that it did not state a defense. An order was made by the trial court sustaining the demurrer upon the specific ground that Helgeson was not a legal freeholder voter.
Defendants elected to stand upon the answer, and appeal from a judgment granting a peremptory writ prohibiting further proceedings on the submission at said election of the question of selling intoxicating liquors. The sole question presented is whether Helgeson was a legal freeholder voter, and qualified to sign the petition. It is conceded that, if Helgeson was not a freeholder, the village trustees had no jurisdiction in the premises, and were not authorized to submit the question to a vote.
Section 1, c. 166, of the Session Laws of 1903, provides as follows: "At the annual municipal election held in any township, town or city in this state for general municipal purposes, the question of granting permits to sell intoxicating liquors within the corporate limits of such township, town or city shall be submitted to the legal voters thereof upon petition signed by twenty-five (25) legal freeholder voters of such township, town or city, to be filed with the clerk or auditor of such township, town or city thirty days before election, which petition shall state that a vote is desired upon such question." It is conceded that Helgeson was a qualified legal voter of the village of Revillo, but respondent's contention is that upon the facts above set forth he was not a freeholder. If the contract above referred to vested in Helgeson a freehold estate, he was qualified as a signer of the petition. Section 241 of the Civil Code provides: Section 245: "Estates of inheritance and for life are called estates of freehold; estates for years are chattels real; and estates at will are chattel interests, but are not liable as such to sale on execution." Any estate in real property (except an estate for years and an estate at will) which may descend as real estate upon the decease of the holder of such estate is a "freehold" as defined by section 245, Civil Code, supra. The statute defining the qualifications of a signer of a petition makes any "freeolder" of the township, town, or city competent as a signer. What constitutes a "freeholder" within the meaning of this statute? Can the statute by any possible or reasonable construction be made to mean anything else than that the holder of a freehold estate as defined by section 245 is a competent signer? Can it be made to mean anything else than that the holder of an estate which may pass as real property by inheritance, or the holder of an estate for life, in real property, is a "freeholder"? Section 2444, Civil Code, says: "Whenever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears." Section 245, supra, defines a "freehold estate," and it seems too plain for discussion that any person who holds a life estate or an estate in real property which may be inherited as real property is a "freeholder." State v. Kokomo, 108 Ind. 76, 8 N.E. 718. Under this statute, it is wholly immaterial that a life estate limited upon his own life cannot descend to the heirs of the holder of the estate because the estate determines upon his death. The statute in effect declares that the holder of a life estate may sell and transfer his estate, and that the transferee would become a "freeholder" by reason of acquiring the freehold estate. Respondent's argument, founded upon the supposed illogical results which might follow from a contract to purchase a life estate, is without convincing force under the plain provisions of the statute which declare that a life estate limited upon the life of the holder is a freehold, as well as an estate limited upon the life of a third person. A considerable amount of very technical logic is expended upon the words "inheritable estate" and "equitable conversion," and the remarkable conclusion is reached that the holder of a contract for the purchase of a life estate limited upon his own life could not be a freeholder because his own heirs could not inherit the estate which by its conditions terminates upon his death. But the fact that his own particular heirs may not inherit the estate is not decisive of the inheritable quality of the estate itself. The holder of a life estate, whether the estate be limited upon his own life or upon the life of another, may alien the estate, and, if the purchaser dies before the person on whose life the estate is limited, the heirs of the purchaser will inherit the remaining life estate. Respondent by the same sort of logic might easily demonstrate that the holder of an estate in fee simple absolute does not possess an "inheritable estate" when forsooth it happens that the owner of the estate is without heirs to inherit. It seems clear that any estate which may pass by inheritance, whether it be held as a life estate or in fee simple absolute is an "inheritable estate," even though the class of persons who may take the estate be limited by the terms of the tenure or by the provisions of the laws of inheritance.
Respondent's argument appears to ignore the fact that an "equitable estate" in real property is as truly an inheritable estate as is a legal estate or an estate held in fee simple absolute, and that the true test as to whether the estate is inheritable and hence a freehold does not depend upon the class of persons who may inherit, but upon the question whether the estate itself is capable of passing by inheritance. That a life estate whether for the life of the owner or of another person may pass by inheritance to the heirs of the grantee of the holder of the life estate is so well settled that a citation of authorities is unnecessary. And, should doubt exist as to respondent's conclusions upon the doctrine of equitable conversion and inheritable estates as applied to life estates, it may be noted that our own statute conclusively settles any question as to the freehold character of both classes of life estates. Section 245, C. C., declares that a life estate is a freehold, and section 246 declares that an estate during the life of a third person is also a freehold estate. In either case the...
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