Yellowhair v. Pratt

• Decision Date: 25 April 1921
• Docket Number: 4840.
• Citation: 182 N.W. 702,44 S.D. 136
• Parties: YELLOWHAIR v. PRATT et al.
• Court: South Dakota Supreme Court

182 N.W. 702

44 S.D. 136

YELLOWHAIR v. PRATT et al.

No. 4840.

Supreme Court of South Dakota

April 25, 1921

Appeal from Circuit Court, Charles Mix County; R. B. Tripp, Judge.

Action by Maria B. Sweeney Yellowhair against C. W. Pratt and another. From a judgment for defendants and an order denying his motion for new trial, plaintiff appeals. Reversed.

Caster & Cassidy, of Lake Andes, for appellant.

J. E Tipton and A. B. Beck, both of Geddes, for respondents.

WHITING J.

This action was brought to enjoin an execution sale of real property belonging to plaintiff. The sole question before the court was whether such land, at the time of the levy, was the homestead of plaintiff. A trial was had in May, 1917. From a judgment in favor of defendants an appeal was taken to this court. Our opinion will be found reported in 41 S.D. 190, 169 N.W. 515. Reference is made to such opinion for a statement of the facts as found by the court upon such trial. Because the trial court failed to make any finding as to the intention of plaintiff when moving off from this land and while remaining off same this court held that the judgment of the trial court must be reversed; there were not sufficient evidentiary facts found from which we would be bound to determine that the plaintiff had formed the intention of abandoning her homestead rights in the premises. A second trial was had in September, 1920. The trial court received evidence in addition to that which it had received upon the first trial, and made three findings additional to those made on the first trial. Again the trial court rendered judgment in favor of the defendants. It is from such judgment and an order denying a new trial that the present appeal has been taken.

The trial court entered no conclusion of law upon this second trial. Based upon its findings, the court should have entered a conclusion of law determining whether or not this land was the homestead of plaintiff at the time it was levied on. Under the heading of "Legal Conclusions," the trial court announced several legal propositions, which it supported by the citation of numerous authorities; and it made one or two references to the facts of the case. From these so-called "legal conclusions" we are certain that the trial court had in fact reached the conclusion that this land, at the time it was levied on, was not the homestead of plaintiff. We would not have it understood that we do not commend the trial courts in furnishing counsel or even in filing with the records of the case a statement announcing the reasons upon which they reach their conclusions and citing authorities supporting such conclusions; such a memorandum cannot but be of value to counsel in the further conduct of the case. We would however, suggest that such a statement should not take the place of, or even be incorporated into, the conclusions of law contemplated by the statute; it certainly is unfair to an appellant to be required to incorporate into its brief, as a part of the record on its appeal, that which, in effect, amounts to a brief and argument on behalf of the opposition. We have examined with much interest the authorities cited by the trial judge in his "legal conclusions," as well as certain additional authorities cited by counsel for respondents. The facts in the cases cited are so different from those in the case before us that there is no analogy, and they do not furnish us with any assistance in determining what we should hold under the facts of this case.

The cases do, however, announce certain well-established propositions concerning which there can be no dispute-propositions in perfect harmony with what we said in our former opinion in this case. The main question in all cases of this nature is the intent of the party who has ceased to occupy the homestead. No general rule can be laid down as a guide for a court in determining intent, but each case must stand upon its own facts. Actual removal without intention to return is a forfeiture of the homestead right. If one removes from homestead property without any present intention of returning, but with a mere possible, or at most probable, future purpose to do so, contingent upon the happening or not happening of a particular event, the homestead is abandoned. Long absence, while not conclusive proof of intent to abandon, is a circumstance which may indicate such an intent in absence of a showing of intent to return. The real question is: Did the party have a fixed and actual purpose or intent to return and reside on the property, and did that purpose or intent continue to exist to the time in question?

The trial court made the following "findings" in addition to those made in the former trial:

"That the home or abode of the plaintiff and her husband is still at Greenwood, in this county, where he still continues as 'barnman' in the government service, and he has no present intention of leaving that employment and moving to Geddes onto the property here involved; that he has lived some eight years at Greenwood, never lived at Geddes nor did he ever have any acquaintance or business there.

That it is now more than four years since plaintiff left the property involved, claimed as a homestead; that when she left it she rented it, and her personal property that was stored in one of the rooms has since been removed, except three articles of very slight value, which are still on the premises for her accommodation; that since her leaving and renting the place she has never had any fixed or definite purpose or intention of returning and occupying it as a home, nor has her husband had any such intent or purpose since their marriage.

That at the time of the levying of the execution involved she had abandoned the said lot 8 as a homestead, and, as

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