PREQUEL TO HOMESTEAD.

• Author: Simmons, Thomas E.

1. INTRODUCTION 328 II. DISCUSSION 332 A. The Purpose and Objectives of the Right 332 B. The Origins, Nature, and Construction of the Right 337 C. Homestead: A Contemporary Statutory Overview 340 1. Protected Property 340 2. Protected Persons 342 3. Exemption Exception Creditors 344 a. Local and Federal Taxes 344 b. Support Claims 345 c. Preexisting Liens and Voluntary Sales 346 d. Other Non-Applicable Exceptions in Context 349 e. Mechanics' Liens 353 4. Married with Children Rights 355 a. Homestead Veto 357 b. Homestead Descent 361 D. A Homestead History: An Assessment and a Look Back 363 1. Pre-Constitutional Legislative History (1861-1889) 363 2. Constitutional History (1883-1889) 368 a. The 1883 Constitutional Convention 369 b. The 1885 Constitutional Convention 370 c. The 1889 Constitutional Convention 376 d. Two Failed Attempts at Constitutional Homestead Revision 378 III. CONCLUSION 379 IV. APPENDIX 382 A. 1862 Territorial Homestead Statutes 382 B. 1877 Territorial Homestead Statutes 385 C. 1877 Territorial Homestead Probate Provisions 388 "The State ought to see to it that every family may be covered by a roof.... " (1) I. INTRODUCTION

   South Dakota's homestead laws have long been a lively topic of litigation. Dozens of South Dakota Supreme Court and pre-statehood Dakota Territory Supreme Court decisions touch on our homestead laws in some substantive way. (2) One may add to this a significant assortment of federal decisions construing South Dakota homestead laws, including decisions by bankruptcy courts. (3) By virtue of this case law count alone, the significance of homestead laws should be clear. (4)

   The homestead exemption protects shelter as a fundamental human need, but it also defines that protection in terms of a "family," broadly conceived. (5) The basic requisites for shelter are unchanged since 1862 (conceding advancements in engineering and design), but the evolution of the idea of a family has been more dynamic. (6) The state constitutional framework for homestead laws, meanwhile, has remained static. The 1889 state constitutional homestead provision reads today just as it did when it was enacted upon South Dakota's statehood. (7) My aims in this article are to situate that provision in its historical context and to outline the contemporary statutory framework which defines and limits the application of the homestead exemption, along with two additional homestead characteristics dealing with inheritance and spousal conveyances. (8)

   First, however, a few preliminaries. The term "homestead" in a legal context can prove slippery. (9) It typically refers to the extent and contours of the exemption from creditor claims that state law defines, alongside the two additional characteristics just mentioned. (10) The term "homestead" can also refer to the parcel of realty which enjoys the exemption; this second definition overlaps to a large degree with the popular meaning of the term--that place where the home is. (11) Homestead in the exemption sense of the word is a privilege or bundle of defined rights and limitations in regards to certain realty. (12) When the context is otherwise unavailing, I will endeavor to call the exemption the homestead right or privilege and the res "homestead property." (13) The term can be used to describe the requirement that both spouses join a conveyance of the homestead property--what I will label the "homestead veto." (14) Finally, the homestead enjoys certain inheritance characteristics which I will call the "homestead descent." (15)

   The term homestead in regards to real property tax assessments is outside the scope of this article, as is the term homestead in connection with "homesteaders;" settlers and pioneers who satisfied the federal requisites of "proving up a claim." (16)

   This article discusses the history and scope of South Dakota's homestead laws in a state constitutional context alongside an exploration of current statutory protections for a family's dwelling. Personal property exemptions will not be considered, except to the extent necessary to situate and explicate the contours of homestead protections. (17) Bankruptcy and its particulars fall outside the scope of this article. Real property tax discounts for an owner-occupied property--sometimes referred to as a homestead--will similarly be ignored. (18)

   In the discussion which follows, I first provide an outline of contemporary homestead laws' purposes and aims. (19) A history of homestead laws as a lens for examining other societal trends (such as consumer protection laws) would be a worthy endeavor. History gives context. Moreover, the South Dakota Supreme Court has been particularly sensitive to historical context in construing the extent of constitutional homestead protections. (20) In particular, the two unsuccessful attempts to modify our State Constitutional homestead law (in 1893 and 1975; rejected by the voters, respectively, in 1894 and 1976) could no doubt be unearthed by scholars and make use of a wide array of primary source material. (21) While a historical component of the discussion which follows is necessary, I have elected to narrow the focus of this inquiry to the constitutional birth of homestead law contrasted against current homestead rules. (22) Historical developments will be considered to the extent necessary to accomplish that aim. In sum, after outlining the underlying aims and origins of homestead laws, I will present two capsules: the first, an examination of contemporary homestead protections; and the second, a roughly thirty-year legislative chronology leading up to the enactment of the 1889 South Dakota Constitutional provision recognizing homestead exemption rights. Finally, in a to-be-published continuation of this article, I intend to undertake a summary of South Dakota constitutional homestead jurisprudence from 1889 onwards.

2. DISCUSSION

   1. THE PURPOSE AND OBJECTIVES OF THE RIGHT

      The basic thrust of homestead rights is to secure a family's shelter against financial misfortune. This aim is achieved by suspending otherwise available creditor remedies against the home. (23) Furthermore, homestead laws try to provide some degree of protection to the marital relationship. This goal is advanced by retracting the right of unilateral alienation.

      Several related objectives are bundled in the justification for the former aspect of homestead laws; protecting the family's home. First, homestead protections seek to ensure a basic human necessity--shelter against the elements. Abraham Maslow identified safety as a basic human requirement for survival. (24) Maslow's point was not that individuals can die from exposure, but rather that the most basic human needs motivate and explain human behavior. His hierarchy also categorized needs that motivate behavior only after more basic needs are fulfilled. (25) Shelter is one of the more fundamental needs. Homestead, in this context, can be construed almost as a kind of human rights legislation. To the extent that families are saved from having their home sold by their creditors, the homestead exemption also serves to lessen the burdens on government and communities caused by homelessness. (26) Widespread property vacancies which result from excessive foreclosures can strain government services such as law enforcement. (27) The thwarting of basic needs like safety and shelter may lead to increased criminality. (28)

      More than merely shelter, however, the term "homestead," in a popular sense, resonates with additional values. The maxim, "one's home is one's castle" comes to mind. (29) The aim of protecting a family's home is broader than merely the necessity of shelter. As Maslow recognized, humans prefer "some kind of undisrupted routine or rhythm." (30) They need "a predictable, orderly world." (31) Routine and predictability are advanced with homestead protections, and so is the privacy that comes with home ownership. A "homestead" imparts a greater sum than merely "shelter." This greater sum, which imparts both security and the autonomy that comes from the reservation of a personal space, finds protection in the law from interference from creditors in homestead laws. Earlier in history, full participation in political life was reserved to men who owned property (typically their home); a requirement which might suggest a thinking that the level of self-realization required for responsible decision making often accompanied the ownership of one's home. (32)

      This expansive and varied set of values that can be discerned in the justifications for homestead laws also finds expression in protecting the personal space of a home from government intrusions in the Fourth Amendment and from private intrusions in burglary law and self-defense recognitions. (33) Burglary criminalizes not just theft from a dwelling, but nonconsensual intrusion into it. (34) The right to repel home intruders even with the use of deadly force further cements the walls of one's castle.

      More basically, homestead exemption laws protect a family's home from creditors. The exemption effectively bars a creditor's right to a forced sale of the homestead property. (35) As a consequence (or perhaps an additional aim), the availability of "easy credit" is reduced. (36) Indirectly, homestead laws serve other societal utilities as well. By providing creditor protections as an incident to home ownership, home ownership is encouraged. (37) Increasing the incidence of home ownership relative to leaseholds is incentivized by means of attractive asset protection features associated with one's personal residence, though one doubts that any empirical evidence would necessarily demonstrate a causative relationship between the two. (38) Nevertheless, one stated justification for homestead exemptions is to encourage home ownership and, thereby, the benefits which accrue from a higher incidence of owners rather than renters. (39) Another justification cited by the courts is...