#### JENSEN, Respondent, v. GRIFFIN et al, Appellants.

(168 N. W. 764).

(File No. 3875.

Opinion filed Sept. 3, 1918.

Rehearing denied November 4, 1918).

1. Homesteads — New Homestead — Mechanic’s Lien or, Notice to of Homestead Claim — Intention to Occnpy Premises, Insufficient Findings Re.

In a suit to enforce a mechanic’s lien, against premises claimed by defendants as a homestead, trial court having found that defendants husband and wife never communicated with parties furnishing labor and material for the house in question, the fact that the house was being erected for their dwelling, that the first knowledge said claimants had that defendants intended to so occupy the house was about the time of its completion, and that defendants never after contracting for the house announced, or so conducted themselves as to give the public the impression that they were erecting same as their dwelling to be occupied iby them as a home, the court not finding any fact or circumstance in connection therewith that would suggest to the claimants the fact that defendants intended to occupy same as a home, or to put contractors upon inquiry, held, that said findings did not follow the conditions laid down in the former opinion (32 S. D. 613), that the new findings are merely of evidentiary matters not conclusive of the fact as to when and by whom the intention was formed to occupy the new premises as a home; that being the important issue.

2. Same — Materialmens’ Claim — Intention to Erect House for Non-homestead Purposes, Effect Re Liens — Rule—Estoppel, Burden of Proof re.

If at time of contracting for material for a new house, it was the intention of husband and wife to erect it for non-homestead purposes, then mechanic’s liens attached both to the building and the land on which it stands; but if at that time they intended that it should be their home, then the liens never attached to either building or land, unless acts of estoppel be proven, which claimant has the burden’ of showing; construing Pol. Code, Sec. 3228, providing that owner may from time to time change limits of homestead by changing m'etes and bounds, as well as record of description, or may change it entirely, but that such changes shall not prejudice conveyances or liens made or created, previously thereto.

Appeal from Circuit Court, Miner County. Hon. Arva E. Taylor, Judge.

*31Action by J. N. Jensen, against Richard Griffin and others, to enforce a mechanic’s lien. From a judgment for plaintiff, and from' an order 'denying a new trial, defendants appeal.

Reversed and remanded for further proceedings.

■See 32 S. IX 613, 144 N. W. 190.

*Farmer & Blewitt,*and *Caldwell &*Baldwin, for Appellants.

*Null & Royhl,*for Respondents.

(2) To point two of the opinion, Appellants cited:

Kingman vs. O’Callaghan, 4 S. EX 628.

QAT®S, J.

This case was formerly before this court, and the judgment of the trial court was then reversed for the reasons mentioned in the opinion reported in 32 S. D. 613, 144 N. W. 119, 50 L. R. A. (N. S.) 1128. Reference is made to that opinion for a complete understanding of the facts. A new trial was had, upon which the trial court found: the facts as: upon the former trial, but in addition thereto found the following:

“XVII. That at no time prior to the furnishing of the labor and materials for the erection of the new house did' the defendants Richard' Griffin and Beatrice A. Griffin, or either of them, communicate to the parties furnishing the labor and materials for said house the fact that said new bouse 'was being erected for the purpose of being occupied by the Griffins as their dwelling, and the first knowledge the patties now claiming mechanic’s liens had that the Griffins intended to occupy said new -house as a dwelling ■was when the Griffins moved into said new house about the time of its completion, about 'May 1, 1911.

“XVIII. That at no time prior to the making of the contract and the furnishing of the labor and material's for the said new 'house did the •Griffins, or either of them, make any announcement or so conduct themselves as to give the public the impression that they were erecting said new house as their dwelling to be occupied by them as a home, and the court does not find, any fact or circumstances connected with the erection of said house or in the ■conduct of the Griffins in connection therewith that would suggest to 'the parties furnishing the labor and materials the fact that the Griffins intended to occuipy said ho'use as a home or put such contractors upon inquiry concerning the matter.

“XIX. That the first manifestation of an intention upon the *32part of the Griffins to occupy the new house as a home -was when they moved into the 'house about -May I, 1911.”

'Conclusions of law and-' *judgment were*entered sustaining the mechanic’s liens upon the newly erected house and' .the. lot upon •which it isi situated-. From, the -judgment and order denying a new trial defendants Griffin 'and defendant McCullough. appeal'.

[1] We are of the view that the trial court failed to make a finding upon the important issue as to' when- Mr. and Mrs. Griffin formed the intention of using the new building as1 a part of the homestead. The findings made by- the trial court did not follow the conditions laid down in the former opinion. The new findings are merely finding's of evidentiary matters which might or might not aid the trial court in determining tíre important question of fact as to when and by whom the intention- was formed to occupy the new premises as -a home. As to that question there is still no finding. For the future guidance of the trial court we lay down the following rules:

[2] If at the time of contracting for the material for the new house it was the intention of both husband 'and wife to- erect it for nonhomestead purposes, then the mechanics'’ liens attached both to the 'building and the land upon which it was: situated. Chas. Betcher Co. v. Cleveland, 13 S. D. 347, 83 N. W. *366.*

If .at that time 'both* husband and wife intended that the new house should be their home, then the liens never attached to either building or land (Pol. Code § 3228), unless- acts of estoppel be proven, which respondent has the burden of showing.

The judgment and order appealed.1 from are reversed, and the cause remanded for further proceedings not inconsistent herewith.