Warne v. Warne
| Decision Date | 01 February 1916 |
| Docket Number | 3759 |
| Citation | 36 S.D. 573,156 N.W. 60 |
| Parties | ADA L. WARNE, Plaintiff and respondent, v. RODELL C. WARNE, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Davison County, SD
#3759--Affirmed
W. M. Herbert, Spangler & Haney
Attorneys for Appellant.
Charles F. Tym, Edward E. Wagner
Attorneys for Respondent.
Opinion filed February 1, 1916
By a modified judgment granting plaintiff a divorce from defendant, the trial court set apart to plaintiff the homestead and other real property, the title to which stood in plaintiff's name, and further adjudged:
"That the following described real property be, and the same is hereby set apart to the plaintiff absolutely and for her sole use and benefit for the support and maintenance of herself and minor children, to-wit: ... Lots 5 and 6, in block 15, in Gleeson's addition to said city, and the defendant is ordered and commanded to forthwith execute and deliver to the plaintiff a deed conveying the title to said lots 5 and 6, in block 15, in Gleeson's addition to said city of Mitchell, to plaintiff so as to fully vest the title thereof in her."
The title to these lots stood in the name of defendant. From the portion of the judgment above recited the defendant has appealed. The only question presented by the appeal is, as stated by appellant:
"Whether the circuit court has authority in an action for divorce to transfer, or compel the transfer of, title to real property other than the homestead."
The basis of appellants argument is that, under the provisions of sections 92 and 93 Civil Code, the court is without power to transfer the title to any real estate other than the homestead, and cases are cited in support thereof, viz., those noted in 1 R.C.L. 926, and in 5 Ann. Cas. 464.
Sections 92 and 93 of our Rev. Civ. Code read as follows:
Appellant insists that a proper construction of section 92 did not warrant the judgment, and that the provision of section 93 which authorizes the transfer of the homestead excludes the power of the court to assign other real estate to the wife, upon the principle, expressio unius est exclusio alterius. We have exhaustively investigated all the cases to which our attention has been called and many others bearing upon the subject of allowance or alimony to the wife, together with the statutes of many of the states, and we think we are safe in saying that the above sections of our statute are different from those of any other state in the Union. As shown by the proposed Field Code, these sections were taken partially from the revised statutes of New York.
They were adopted by the territory of Dakota in 1866 and by California in 1872. In the latter state, however, certain other sections of previously enacted statutes were added which expressly mentioned the division of property between husband and wife. North Dakota had our sections for a time, but they have since been amended. We agree with the prevailing doctrine that the authority for the judgment in this case must be found in the statutes. Simpson v. Simpson, 80 Cal. 237, 22 Pac. 167; Powell v. Campbell, 20 Nev. 232, 20 Pac. 156, 2 L.R.A. 615, 19 Am.St.Rep. 350.
We do not agree that the specific reference to the homestead in section 93, C.C., necessarily excludes the power of the court to assign other property than the homestead. The first sentence of section 93 was taken verbatim from the Field Code. The remaining portion first appeared in the Revised Civ. Code of 1877, together with the first sentence, as section 74. At that time chapter 38 of the Pol. Code 1877, provided (section 1) that the homestead should be "exempt from judicial sale, from judgment lien, and from mesne or final process issued out of any court." Section 3 of said chapter provided that a conveyance of the homestead should be of no validity unless both husband and wife concurred in and signed the same joint instrument. Because of these provisions, it might well have been doubted whether a court would have the power to assign the homestead even if the then section 73 (now section 92) of the Civ. Code had specifically authorized a division of the property. We think that in making reference to the homestead in the then section 74 (now section 93) it was clearly the legislative intent to do away with any uncertainty as to the power of the court to assign the homestead, and that it was not the intention of the Legislature to thereby imply that property other than the homestead could not be assigned to the wife. We shall therefore try to arrive at the meaning of section 92, C.C., as though there were no reference to a homestead in section 93.
It is to be noticed that section 92 makes no reference to either real or personal property, nor does it mention "money," as does section 90, C.C. The language is that the court may do two things: (a) Compel the husband to provide for the maintenance of the children; (b) compel him to make a suitable allowance to the wife. This power of the court is broad and comprehensive. It is not restricted in terms as to kind of property nor as to method or means. Suppose the husband's property consisted of a small home and a good milk-producing cow. Would it be claimed that the court might not assign the cow for the partial support of the wife and children? Could the court only award the wife a sum of money equal to the value of the cow, make that a lien upon the cow and order the cow to be sold in extinguishment of the lien? The logical...
To continue reading
Request your trial