Wells v. Sweeney

Citations

• 16 S.D. 489
• 94 N.W. 394
• 1903 S.D. LEXIS 111

Syllabus

<p>1. Oomp. Laws Dak. 1887 § 5362, providing that one or more of several co-tenants holding and being in possession of real property may bring partition, authorizes partition only when several co-tenants hold and are in possession of the property.</p> <p>2. Comp. Laws Dak. 1887.- § 5778, secures the possession and occupancy of the homestead to the surviving husband or wife, and, upon the death of both, to the children till the youngest is of age. Pol. Code, § 2463, is a verbatim copy of the above section, and sections 2464, 2465, provide that the homestead shall decend according to the law of- succession, exempt from antecedent debts of the parent; that, if it decend s to the issue of either husband or wife, it shall be held exempt from debts of such husband or wife, except as provided in the following section; and that, if there be no husband or wife surviving, and no issue, the homestead shall be liable for debts. Comp. Laws Dak. 1887, § 5763, exempts the homestead from being included in the administrator’s inventory. Held, that these provisions clearly show that it was the intention of the lawmaking power that the homestead should not be partitioned among the heirs so long as it was occupied as a homestead by the surviving husband, wife or any minor child.</p> <p>3. A surviving husband in possession of the homestead, which was owned by his deceased wife, and claiming his homestead rights therein, cannot maintain partition against the heirs of the deceased wife.</p> <p>4. The requirements of Comp. Laws Dak. 1887, § 2787, that a life tenant ' must keep the premises in repair and pay the taxes thereon, are applicable to a surviving husband, in possession of the homestead and holding it as such.</p> <p>■ 5. A surviving husband in possession of the homestead is not authorized to make permanent improvements thereon and make them a charge against the property as against the children.</p>