Wisner v. Pavlin

#23904-a-JKM

2006 SD 64

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

DENNIS F. WISNER, Plaintiff and Appellee,

v.

ETHEL M. PAVLIN, Defendant and Appellant,

and

CorTrust Bank, NA., Defendant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GENE PAUL KEAN
Judge

* * * *

CHARLES L. DOROTHY of
Dorothy Law Firm, P.C. Attorney for plaintiff
Sioux Falls, South Dakota and appellee.

MICHAEL A. HAUCK of
Bangs, McCullen, Butler,
Foye & Simmons Attorneys for defendant
Sioux Falls, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON APRIL 24, 2006

OPINION FILED 07/19/06
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MEIERHENRY, Justice.

[¶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.

FACTUAL AND PROCEDURAL BACKGROUND

[¶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

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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.

DECISION

[¶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 NW2d 400, 403 (SD 1991) (quoting In re Clouse’s Estate, 63

SD 147, 150-51, 257 NW 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.

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Id. (quoting Clouse’s Estate, 63 SD at 150-51, 257 NW at 108). Therefore, the

homestead interest “depends entirely upon the constitutional and statutory

provisions.” State ex rel. Bottum v. Knudtson, 65 SD 547, 276 NW 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 NW2d 452,

453; see also 40 AmJur2d Homestead § 4 (1999) (stating that “the primary purpose

of homestead provisions is to place the property designated as a homestead out of

reach of creditors while it is occupied as a home or, as otherwise stated, to secure to

a debtor and his family necessary shelter from creditors”). This Court jealously

guards the homestead exemptions guaranteed in both our constitution and statutes.

Davis, 2004 SD 70, ¶4, 681 NW2d at 453. With those principles in mind, we turn to

Ethel’s issues on appeal.

Validity of Deed

[¶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

1. In several cases, we have explained the nature of joint tenancies:

A joint tenancy exists when the four unities of time, title,
interest, and possession are present. Destruction of one of the
four unities terminates a joint tenancy and converts it into a
tenancy in common. Under South Dakota law, a joint tenant
(continued . . .)
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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 NW2d 22, 27 (“[C]onstruing a statute entails answering a

question of law; thus, we review the trial court’s statutory interpretation de novo.”).

[¶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.”

_____________________
(. . . continued)
with right of survivorship has the right to unilaterally terminate
the joint tenancy at any time without the knowledge or consent
of the other joint tenants.

In re Hoffman, 2002 SD 129, ¶9, 653 NW2d 94, 98 (citations omitted).

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[¶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 P2d 258

(ColoCtApp 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, 188 P2d 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

2. The relevant statute states:

If the owner of [homestead] property . . . or the spouse of such owner
records in the office of the county clerk and recorder of the county
where the property is situate an instrument in writing . . . stating that
the owner or the owner’s spouse is homesteading such property . . .
then the signature of both spouses to convey or encumber such
property shall be required.

CRS 38-41-202(4).

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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 NW2d 410, 413 (citations omitted); see also 40 AmJur2d Homestead

§ 3 (“[h]omestead law is purely statutory”). 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.

Propriety of Partition

[¶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

3. In South Dakota, a statute authorizes actions for partition:

When several cotenants hold and are in possession of real
property as partners, joint tenants, or tenants in common, in
which one or more of them have an estate of inheritance or for
life or lives or for years, an action may be brought by one or
more of such persons for a partition thereof according to the
respective rights of the persons interested therein and for a sale
of such property or a part thereof, if it appear that a partition
cannot be made without great prejudice to the owners.
(continued . . .)
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Ethel’s homestead interest 4 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 defined, so long as it continues to possess the
character of a homestead is exempt from judicial sale, from

_____________________
(. . . continued)

SDCL 21-45-1.

4. The parties do not challenge the trial court’s conclusion that Ethel has a
homestead interest in the property. By way of background, however, we note
that the South Dakota Constitution mandates the enactment of statutes
which protect a debtor’s homestead right. See SD Const. art XXI, § 4. In that
regard, the Legislature adopted statutes which are now set forth in SDCL
Chapter 43-31. The first statute in that chapter states in part:

The homestead of every family, resident in this state, as
hereinafter defined, so long as it continues to possess the
character of a homestead is exempt from judicial sale, from
judgment lien, and from all mesne or final process from any
court, to the extent and as provided by statute.

SDCL 43-31-1. For purposes of the homestead laws, SDCL 43-31-14 defines
“family.” It states:

A widow or widower, though without children, while continuing
to occupy the homestead used as such at the time of the death of
the husband or wife, or any family, whether consisting of one or
more persons in actual occupancy of a homestead as defined in
this code, shall be deemed and held to be a family within the
meaning of the laws of this state relating to homesteads.

SDCL 34-31-14 (emphasis added).

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judgment lien, and from all mesne or final process from any
court, to the extent and as provided by statute.

Ethel argues that a partition sale constitutes a “judicial sale” under SDCL 43-31-1

and therefore violates the South Dakota Constitution. The relevant constitutional

provision, however, states that “[t]he 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 . . . .” SD Const art. XXI, § 4 (emphasis added). In this case, we

are not presented with the competing interests of a debtor and a creditor. Because

Ethel does not assert her homestead interest against a creditor, the policy of

homestead protection established by our constitution and statutes is not implicated.

See In re Davis, 2004 SD 70, ¶4, 681 NW2d at 454 (recognizing that the purpose of

homestead legislation is to protect “the security of the home and family against the

claims of creditors”). Therefore, we need not determine whether a partition sale

constitutes a “forced sale” or a “judicial sale,” and we proceed to determine whether

Ethel may assert her homestead interest against a cotenant.

[¶13.] None of our previous decisions directly address the effect of one

cotenant’s homestead interest on another cotenant’s right of partition outside the

context of a marriage. In Wells v. Sweeney, 16 SD 489, 94 NW 394 (1903), however,

the Court considered an action for partition of a spousal homestead. In Wells, a

husband and wife established a homestead on a quarter section of land. Id. at 394.

When the wife died, the husband and two children received equal interests in the

property, but only the husband continued to reside on the land. Id. He then sought

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to partition the property, but the Court refused. Id. at 395. The Court noted that

the relevant statute provided:

Upon the death of either husband or wife the survivor may
continue to possess and occupy the whole homestead until it is
otherwise disposed of according to law; and upon the death of
both husband and wife the children may continue to possess and
occupy the whole homestead until the youngest child becomes of
age.

Id. (emphasis added). Because the statute granted a surviving spouse a homestead

interest in the entire homestead, the Court reasoned that “during the lifetime of the

surviving husband, wife, or any minor child, the homestead cannot be partitioned

among the heirs at law, except by consent of all the parties interested in the same.”

Id. According to the Court,

“If the heirs are not entitled to a partition of the homestead
during the lifetime of the surviving husband or wife or minor
children who actually occupy the same as a homestead, it would
seem to necessarily follow that such survivor would not be
entitled to a partition of the same so long as he or she occupied
the same as a homestead.”

Id.

[¶14.] Subsequent to Wells, the case of Johnson v. Hendrickson considered an

action for partition among cotenants, one of which held a homestead interest in the

subject property. 71 SD 394, 24 NW2d 914 (1946). In that case, the defendant

cotenant did not assert his homestead interest to completely avoid partition; rather,

he argued that his homestead interest required partition-in-kind, rather than

partition by sale. Id. at 401, 24 NW2d at 918. When considering that argument, we

stated:

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The rule as stated in Thorn v. Thorn, 14 Iowa 49, [1862 WL 264
(1862)], and approved in Smith v. Wright, 195 Minn 589, 263
NW 903 [(1935)], is that:

The homestead right is derived alone from the
statute, but cannot be claimed and enforced by one
tenant in common to the detriment of his co-
tenants. Hence if he should happen to have erected
and occupied a homestead on a piece of land which
could not be partitioned without great prejudice to
his co-tenants, it would have to be sold, but in that
event the court would see that the value of the
homestead and improvements, distinct from the
land, would be secured to the party at whose
expense and labor they had been made.

Johnson, 71 SD at 401, 24 NW2d at 918. In light of that statement, the Court

determined that partition by sale was appropriate. Id.

[¶15.] Wells and Johnson lead us to conclude that partition is not precluded

here. Wells does not preclude partition in this case because it involved a spousal

homestead created by statute. Ethel is not a widowed spouse, and Dennis does not

seek partition based on his status as an heir. Further, Johnson suggests that

Ethel’s homestead interest must give way to the right of partition. Courts of other

jurisdictions recognize the same principle. See, e.g., Squibb v. Squibb, 190 Cal App

2d 766, 12 Cal Rptr 346 (CalCtApp 1961) (“The law is now clear that a statutory

homestead interest does not deprive the co-tenant of the right to have the common

property partitioned and sold and that the homestead right of the co-tenant in his

interest in the common property is no bar to a suit for that purpose.”); Thorn, 14

Iowa 49, 1862 WL 264 at 4 (“The homestead right is derived alone from the statute,

but cannot be claimed and enforced by one tenant in common to the detriment of his

co-tenants.”); Banner v. Welch, 115 Kan 868, 225 P 98, 100 (1924) (“The rule is well

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settled that, when two or more parties buy real property, and become owners

thereof as tenants in common, one of them cannot, as against his cotenant, establish

a homestead upon the whole.”); Solomon v. Solomon, 187 Miss 22, 192 So 10 (1939)

(“occupation of the property . . . as a homestead did not enlarge [an] interest therein

against . . . cotenants, and it was at all times . . . subject to partition at the suit of

[the] cotenants”); Sayers v. Pyland, 139 Tex 57, 161 SW2d 769 (1942) (“[W]hile one

tenant in common may acquire homestead rights in the common property, the

rights so acquired are not superior to the rights and remedies of the other joint

owners.”); see also Annotation, Homestead right of cotenant as affecting partition,

140 ALR 1170 (“The cases uniformly hold or assume . . . that the homestead rights

of a cotenant, or of his spouse or family, in respect of his interest in the common

property are not a bar to partition.”). Decisions to the contrary, like Wells, rely on

specific statutory or constitutional provisions which prohibit the partition of a

homestead under certain factual circumstances. See, e.g., Henderson v. Henderson,

212 Ark 31, 204 SW2d 911 (1947) (constitutional provision prevented partition of

widow’s homestead).

[¶16.] It stands to reason that Ethel’s homestead interest can only attach to

the property interest which she holds—that is, her undivided one-half interest in

the home. Cf. Chambliss v. Derrick, 216 Ala 49, 112 So 330, 332 (1927) (stating

that a widow’s homestead interest “attached only to such right and title as was

owned by her husband at the time of his death”); Squibb, 190 CalApp2d at 769, 12

CalRptr 346 (“The homestead claimant acquires only such rights of occupancy as he

had before the creation of the homestead”); Banner, 115 Kan 868, 225 P at 100 (“All

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[a cotenant] can do is to establish a homestead as to creditors upon his separable

interest or title.”); Solomon, 187 Miss 22, 192 So at 10 (noting that the cotenant’s

homestead interest only applied to the interest owned—in that case, a three-fifths

undivided interest in the property); Sayers, 139 Tex at 64, 161 SW2d at 773 (“It is

also a well-recognized principle of law that one’s homestead right in property can

never rise any higher than the right, title, or interest he owns in the property

attempted to be impressed with a homestead right.”). The occupation of the

property by a cotenant as a homestead does not and cannot enlarge his interest as

against his cotenants. Id.

[¶17.] Additionally, we have stated that the homestead interest is a privilege

established by statute. Estate of Mathison, 468 NW2d at 403; see also 40 AmJur2d

Homesteads § 2 (“Homestead rights did not exist under the common law. They are,

it seems, peculiar to America, and exist by virtue of statute or constitutional

provision.”). While the right of partition is also established by statute, SDCL 21-45-

1, it is designated a right, as opposed to a privilege. See Braaten v. Braaten, 278

NW2d 448, 450-51 (SD 1979) (noting that “a partition proceeding is a matter of right

as an incident of common ownership,” but recognizing that the right of partition is

subject to “the inherent jurisdiction [of the court] to adjust all the equities in respect

to the property” and also “may be modified, limited, or waived by agreement of the

cotentants”). As the Alabama Supreme Court explained,

Partition of lands held by tenants in common is a matter of
right, regardless of the inconvenience resulting to joint owners.
. . . In other words, the right of partition [in kind or in sale] is of
right. Joint ownership is not compulsory.

Chambliss, 216 Ala 49, 112 So at 332 (emphasis added).

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[¶18.] Ethel argues that this case is distinguishable from cases which state

that the homestead interest of a cotenant in common property is no bar to another

cotenant’s suit for partition. According to Ethel, those cases considered a

homestead right arising after the parties became cotenants. Because Ethel’s

homestead interest arose prior to the creation of her cotenancy with Dennis, she

asks us to find that the general rule does not apply here. In support of this

argument, Ethel cites the decision of the Texas Supreme Court in Sayers v. Pyland,

139 Tex at 57, 161 SW2d at 769. In her brief to this Court, Ethel argues that

Sayers makes clear that the general rule—that a cotenant cannot assert homestead

rights over another cotenant’s right of partition—“applies only when the parties

acquire ownership of the subject property as cotenants and one of them

subsequently attempts to impress the property with a homestead.” (Emphasis in

original). A close reading of Sayers, however, reveals that it considered only the

general rule, not an exception for previously established homestead rights.

[¶19.] In Sayers, Pyland conveyed a one-half undivided interest in property to

Williams. Id. at 59, 161 SW2d at 770. At the same time, however, the interest

which Pyland retained became subject to a lien and a note held by Sayers. Id.

When Sayers sued to recover on the note and foreclose on the entire property

because of the lien, Pyland asserted his homestead interest in the entire property as

a defense. Id. at 60, 161 SW2d at 770-71. Pyland argued that prior to Williams

becoming a joint owner, Pyland held a homestead interest in the entire parcel. Id.

at 65, 161 SW2d at 773. The court found, however, that Pyland voluntarily

subordinated his right by the conveyance. Id. The Sayers court reasoned:

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It is true that in this instance Pyland’s homestead right had
attached to the property prior to the time Williams became a
joint owner therein; but the record discloses that after they had
acquired their homestead right therein, Pyland and wife, in the
matter provided by law for the sale of a homestead, conveyed to
Williams an undivided one-half interest in the property, and
thereby voluntarily subordinated their homestead right to all
the rights and obligations appertaining to the relation of tenants
in common. Consequently they thereafter stood in the same
position as if their homestead right in the property had been
acquired after the parties had become tenants in common in the
property.

Id. Under that reasoning, the court found that Pyland’s homestead interest arose

after the lien attached to his interest in property, and therefore the one-half

undivided interest in the property was subject to the lien. Id.

[¶20.] Ethel argues that the above quoted language of Sayers indicates that

the time a homestead interest is established determines whether it is subject to the

rights of a joint tenancy. Ethel’s argument, however, is misplaced. First, the court

in Sayers found that the original homestead interest was lost. Therefore, it did not

consider a homestead interest established prior to a cotenancy, and any language

which suggests that such a right deserves greater deference is dicta. Second, Sayers

did not consider the partition rights of a cotenant; it considered the rights of a

creditor. Thus, it cannot be interpreted as establishing a distinction between

homestead interests that arise prior to and after the creation of a joint tenancy. 5

5. In her reply brief, Ethel also criticizes the footnote in the trial court’s
memorandum opinion which noted “[o]ther state cases precluding the claim of
a homestead exemption against a tenant in common include: First Huntsville
Properties Co. v. Laster, 797 SW2d 151, 153 (TexCtApp 1990) [(Laster I)]
(‘The homestead right of one cotenant may not prejudice the rights of other
cotenants[’]) . . . .” Ethel correctly points out that the Laster I decision was
appealed to the Texas Supreme Court, which criticized the court of appeals’
(continued . . .)
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[¶21.] Our only decision in this area, Johnson, indicates that a homestead

interest must give way to a cotenant’s right of partition. We are not aware of and

Ethel has not presented any case which parts with that general rule simply because

the homestead interest arose before the cotenancy was established. 6 Courts have

widely recognized the general rule that homestead interests exist subject to the

rights of a cotenant and that the homestead interests exists only to the extent of an

owner’s interest. Further, our prior cases establish that homestead is a privilege,

not a right, under South Dakota law. In light of these well established principles,

the paucity of authority for the distinction, and the facts of this case, we decline to

hold that the rights of a cotenancy are subject to previously established homestead

interests.

_____________________
(. . . continued)
reliance on Sayers. See Laster v. First Huntsville Props. Co., 826 SW2d 125,
131 n3 (Tex 1992) (Laster II). The court’s statement in Laster II, however,
actually militates against relying on Sayers in this case. It stated:

It is not necessarily to address the question of which right in the
residence, as between [ex-wife]’s homestead interest and [ex-husband’s
creditor]’s right of partition, is paramount. The court of appeals
misconstrued Sayers v. Pyland when it determined that the Sayers
court stated that a cotenant’s right to partition was paramount to
another cotenant’s homestead right because that case rested its
holding on the fact that the homestead right had been voluntarily
subordinated to another cotenant’s rights.

Id. (emphasis added). Further, any reliance on Texas cases is questionable
because, “[i]n Texas, the homestead right constitutes an estate in land.” Id.
at 129.

6. We note that Ethel’s homestead interest arose after she and Francis acquired
joint interests in the property. Although the nature of the interest is
different, Dennis derived his interest from Francis. The parties did not argue
those facts, however, and we need not decide their significance.

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[¶22.] We conclude that Ethel’s homestead interest is subject to Dennis’ right

of partition. While the result of this case may seem harsh, the equities of the

situation are not without importance. We have recognized that the right of

partition is subject to a balancing of the equities. Braaten, 278 NW2d at 450-51.

Similarly, the Alabama Supreme Court recognized the significance of a court’s

equitable powers in the context of a widow who held a homestead interest after the

death of her husband:

The homestead right of the widow is, however, a favored one,
and, in making partition or sale for division at the instance of
tenants in common of her deceased husband, her homestead
will, in equity, be preserved to her intact, the home itself rather
than money in lieu of it, if this can be done without sacrifice to
the rights of such tenants in common to have partition of the
property.

If, as here, the widow’s homestead covers an undivided
half interest in the property, and it is capable of equitable
division into two equal parts, this will be done, and the court
then proceed to sell for division the portion allotted to
complainants and their fellow tenants entitled to share in the
portion allotted to them on such division.

Chambliss, 216 Ala 49, 112 So at 332. We are persuaded that such equitable

consideration of a homestead interest is appropriate in an action for partition.

Therefore, while a homestead interest will not prevent partition, it is certainly

relevant to the determination of the appropriate partition.

[¶23.] Therefore, we find that a cotenant’s homestead interest exists subject

to the right of partition which inures to a cotenancy. As stated by the Minnesota

Supreme Court, the opposite conclusion “would at times result in great injustice;

whereas the law, as we view it, permits the rights of all parties to be protected.”

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Smith, 195 Minn at 593, 263 NW at 905. The trial court did not err when it ordered

partition of the property.

[¶24.] Affirmed.

[¶25.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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