Smith v. Allmendinger , 41 S.D. 144 ( 1918 )

GATES, J.

(concurring specially). I agree with my Colleague that the evidence was insufficient to sustain a finding that the wife of A. should he estopped from claiming the homestead night in the lot and the old building. I do, however, believe that the evidence was sufficient to estop both A. and his wife from asserting a homestead interest in the new building. I therefore think the decree of the trial court should have adjudged the sale of the new dwelling and its removal from the premises >in accordance with the provisions of section 15, c. 263, Laws 1913. Jones on Liens (3d Ed.) § 1373; Rockel, Mech. Liens, § 138; Pinkerton v. Le Beau, 3 S. D. 440, 54 N. W. 97; Lamb Lbr. Co. v. Roberts, 23 S. D. 191, 121 N. W. 93; Estabrook v. Riley, 81 Iowa, 479, 46 N. W. 1072, 10 L. R. A. 33; Mahon v. Surerus, 9 N. D. 57, 81 N. W. 64; Gull River Lbr. Co. v. Briggs, 9 N. D. 485;, 84 N. W. 349; note, 62 L. R. A. 369; note, 10 L. R. A. 33; note, 2 Ann. Cas. 689.

I dissent from the portion of the opinion which asserts that plaintiff knowingly filed an untrue account as a basis for his lien.