Wisner v. Pavlin
| Decision Date | 19 July 2006 |
| Docket Number | No. 23904.,23904. |
| Citation | 2006 SD 64,719 N.W.2d 770 |
| Parties | Dennis F. WISNER, Plaintiff and Appellee, v. Ethel M. PAVLIN, Defendant and Appellant, and CorTrust Bank, NA., Defendant. |
| Court | South Dakota Supreme Court |
Charles L. Dorothy of Dorothy Law Firm, P.C., Sioux Falls, South Dakota, Attorney for plaintiff and appellee.
Michael A. Hauck of Bangs, McCullen, Butler, Foye & Simmons, Sioux Falls, South Dakota, Attorney for defendant and appellant.
[¶ 1.] Ethel Pavlin (Ethel) contests a court ordered partition sale of real property which she owns as a tenant in common with Dennis Wisner (Dennis). Ethel claims her homestead interest in the property prevents the partition. The trial court denied her claim and granted the partition. We affirm.
[¶ 2.] In 1999, Ethel purchased a home in Sioux Falls with Francis Wisner (Francis). Although the two were never married, Francis and Ethel held the property as joint tenants with right of survivorship. The two resided at the home together and maintained it as their principal residence. In 2002, Francis deeded his one-half undivided interest in the home to his son Dennis via quit claim deed for no consideration. Ethel did not consent to the conveyance nor sign the quit claim deed.
[¶ 3.] Francis died on September 24, 2004. Thereafter, Dennis brought this action requesting that the court order a partition sale of the property under his right as a cotenant. In response, Ethel asserted that her homestead interest precluded a partition sale. Ethel also counterclaimed against Dennis and sought a declaration that the 2002 quit claim deed was invalid since she did not join in the conveyance.
[¶ 4.] The parties stipulated to the facts as set forth above and submitted the case for the trial court's consideration. The court concluded that Francis validly transferred his interest in the property to Dennis via quit claim deed. The court agreed that Ethel has a homestead interest in the property, but the court concluded that the homestead interest did not prevent partition. Ethel appeals from the trial court's decision and presents two issues for our consideration:
ISSUES
1. Whether the trial court erred in finding that Francis validly transferred his interest to Dennis via quit claim deed, even though Ethel, as joint tenant and homestead claimant, did not consent to or join in that conveyance and did not sign the deed.
2. Whether the trial court erred in ordering a partition sale of the property in which Ethel had a homestead interest which preceded her cotenancy with Dennis.
[¶ 5.] Before addressing the issues presented by Ethel, we set forth the general principles applicable to homestead law in South Dakota. Article XXI, Section 4 of the South Dakota Constitution provides, "The right of the debtor to enjoy the comforts and necessaries of life shall be recognized by wholesome laws exempting from forced sale a homestead, the value of which shall be limited and defined by law, to all heads of families . . . ." Under the law, a homestead interest is not "an estate in land, but is a mere privilege granted by the Legislature." In re Estate of Mathison, 468 N.W.2d 400, 403 (S.D.1991) (quoting In re Clouse's Estate, 63 S.D. 147, 150-51, 257 N.W. 106, 108 (1934)) (emphasis added). As we explained:
The right of homestead is not, under the laws of this state, an estate in land, but is a mere privilege granted by the Legislature in fulfilling the constitutional mandate of section 4, art. 21, and consists of the right of occupancy given to the surviving spouse and minor children and does not pass by succession, showing clearly that when the need for protection for the family ceases, then there is no longer any reason for the homestead. The homestead exemption is therefore temporary and exists only so long as the conditions prevail under which it was allowed by the homestead law.
Id. (quoting Clouse's Estate, 63 S.D. at 150-51, 257 N.W. at 108). Therefore, the homestead interest "depends entirely upon the constitutional and statutory provisions." State ex rel. Bottum v. Knudtson, 65 S.D. 547, 276 N.W. 150, 151 (1937). The purpose of homestead legislation is to "protect the security of the home and family against the claims of creditors." In re Davis, 2004 SD 70, ¶ 4, 681 N.W.2d 452, 453; see also 40 AmJur2d Homestead § 4 (1999) (). This Court jealously guards the homestead exemptions guaranteed in both our constitution and statutes. Davis, 2004 SD 70, ¶ 4, 681 N.W.2d at 453. With those principles in mind, we turn to Ethel's issues on appeal.
[¶ 6.] We first consider whether the quit claim deed by which Francis transferred his interest to Dennis was valid. The parties agree that Francis and Ethel held the property as joint tenants with right of survivorship, and they acknowledge that if effective, the transfer of Francis' interest to Dennis via quit claim deed converted the joint tenancy between Francis and Ethel into a tenancy in common between Dennis and Ethel.1 Therefore, the issue here is whether Ethel's homestead interest in the property required her consent for the conveyance to be valid. Ethel claims that SDCL 43-31-17 mandates such a requirement. Therefore, this issue presents a question of law which we review de novo. Estate of Howe, 2004 SD 118, ¶ 16, 689 N.W.2d 22, 27 ().
[¶ 7.] Ethel relies on SDCL 43-31-17 which restricts conveyance of a homestead without a spouse's concurrence. In relevant part, the statute provides:
A conveyance or encumbrance of a homestead by its owner, if married and both husband and wife are residents of this state, is valid if both husband and wife concur in and sign or execute such conveyance or encumbrance either by joint instrument or by separate instruments.
SDCL 43-31-17. Ethel argues that this statute, in combination with her homestead interest, prevented Francis from conveying his interest in the property because Ethel did not know of, consent to, or sign the deed. Ethel asks us to parse the statute and recognize that because it applies to "[a] conveyance or encumbrance of a homestead by its owner," the consent of any and all record owners of property is required for the conveyance of a homestead to be valid. According to Ethel, the language of SDCL 43-31-17 "should be construed, based on the underlying policy of South Dakota's homestead laws, as prohibiting such transfers without the other homestead owner's consent and joinder."
[¶ 8.] To construe SDCL 43-31-17 according to Ethel's argument would be to ignore its plain meaning. The language of the statute clearly applies only to situations in which the homestead of a husband and wife is conveyed. The statute modifies "owner" with "married," and it further requires that both husband and wife be residents of this state. Thus, we cannot extend the consent requirements of SDCL 43-31-17 beyond what the Legislature has decreed, as evidenced by the language of the statute.
[¶ 9.] Ethel argues that the Colorado case of Knoche v. Morgan, 664 P.2d 258 (Colo.Ct.App.1983), supports her interpretation of SDCL 43-31-17. In Knoche, the court stated that a statute similar to SDCL 43-31-17 "renders void any attempt by one of two joint tenants of properly homesteaded property to destroy the joint tenancy by unilateral conveyance." Id. at 259. For that proposition, Knoche cited another Colorado case, Wise v. Thomas, 117 Colo. 376, 188 P.2d 444 (1947). Ethel's reliance on Knoche is flawed for one reason: she and Francis were never married. In both Knoche and Wise, the joint tenants were husband and wife. More importantly, like SDCL 43-31-17, the Colorado statute upon which Knoche and Wise rely explicitly applies only to spouses.2 Therefore, the language of Knoche suggesting that the statutory mandate applies beyond the spousal relationship is purely dicta, and we decline to rely upon it.
[¶ 10.] As we have stated, "`The homestead right depends entirely upon constitutional and statutory provisions that create them.'" Beck v. Lapsley, 1999 SD 49, ¶ 7, 593 N.W.2d 410, 413 (citations omitted); see also 40 AmJur2d Homestead § 3 (). Therefore, we are confined to the language of our statutes to determine the extent of those rights. As set forth above, the homestead interest is a privilege granted by the Legislature which wholly depends on constitutional and statutory provisions. Therefore, when construing SDCL 43-31-17, we must constrain ourselves to the dictates of the language. In light of the clarity of the statute's language, we cannot say that its consent requirement extends beyond the conveyance of a homestead by a married person. The trial court's conclusion of law in that regard was correct.
[¶ 11.] The second issue presented by Ethel is whether her homestead interest precludes a partition sale of the property. The parties acknowledge that partition is appropriate for tenancies in common.3 They disagree, however, as to the effect of Ethel's homestead interest4 on the right of partition. Like the first issue, this issue presents a question of law which we review de novo.
[¶ 12.] Ethel first argues that the partition sale violates her rights under the South Dakota Constitution to be free from a forced sale of her homestead. See SD Const art. XXI, § 4. Ethel points to SDCL 43-31-1, the statute which implements the relevant constitutional provision. SDCL 43-31-1 states:
The homestead of every family, resident in this state, as hereinafter...
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