January 22, 1985
Mr. Craig Kennedy
Yankton County State's Attorney
Post Office Box 203
Yankton, South Dakota 57078
OFFICIAL OPINION NO. 85-01
Homestead exemption
Dear Mr. Kennedy:
Your predecessor has requested an official opinion based on the following fact situation:
FACTS:
Yankton County has recorded liens which it seeks to enforce against a specific tract of real property situated in Yankton County. The liens are claimed for reimbursement of county assistance, care at Human Services Center, and ambulance service, all furnished to a local resident who is now deceased. The particular property is conceded to have been the homestead of the decedent and his wife, as defined by SDCL 21-19, during the lifetime of the decedent. The property was owned in joint tenancy by the decedent and his wife. During the lifetime of the decedent the owners entered into a contract for deed in which they agreed to sell the property in consideration of certain payments by the buyers. The buyers are now in position to pay the balance due on the contract.
On the basis of that fact situation the following questions have been asked:
QUESTIONS:
1. Are the claimed liens of the county an exception to the homestead exemption?
2. Does the homestead exemption extend to the proceeds of the sale of the property which constituted the homestead of the decedent?
Not specifically included in the factual situation submitted is whether the wife joined with the now deceased joint tenant in executing the contract for deed, and whether the surviving wife is continuing to occupy the property as a homestead. For the purpose of this opinion it is assumed the wife joined in the contract for deed, and that the surviving wife continues to claim and occupy the property as a homestead.
The questions asked involve interpretation and application of the provisions contained in each of the following chapters of the South Dakota Codified Laws:
1. SDCL Chapter 21-19, Claim of Homestead and Personal Property Exemptions.
2. SDCL 43-31, Homestead Exemption.
3. SDCL 43-45, Personal Property Exempt from Process.
4. SDCL 28-13, County Poor Relief.
5. SDCL 28-14, Reimbursement of County Poor Relief.
6. SDCL 27A-13, Cost of Care in State Facilities.
7. SDCL 34-11, Ambulance Service.
8. SDCL 44-13, Ambulance Service Liens.
Numerous decisions of the South Dakota Supreme Court and numerous official opinions of the Attorney General, all of which are noted as annotations to one or more of the above-mentioned code references, served to clarify and explain the relationship between county liens and homestead rights up to the amendment of Section 39.1702 of the South Dakota Code of 1939, by Chapter 209 of the session laws of 1953. Section 39.1702 of the Code of 1939 is the direct predecessor statute to SDCL 28-14-5, which is as follows:
Whenever any county within this state shall become obligated to, and does pay for the care, support, and maintenance, and burial expenses of any poor person as defined in § 28-14-3, the county in such cases shall have a lien upon all the property, both real and personal, including joint tenancy and homestead interests belonging to the poor person, or to be thereafter acquired by the poor person, or in which the poor person has any interest, for all sums of money expended therefor by any county, such lien to become effective as between the county and the poor person and other persons having actual knowledge of such payments to the poor person, immediately upon the payment made by any county, to or for the benefit of such poor person, and each additional payment made for such poor person shall be added to the amount of the lien.
SDCL 28-14-5 and its predecessor statute have not changed in any substantial way since passage of Chapter 209, S.L. of 1953 (the source reference which appears as an annotation in the bound code volume, Chapter 237, S.L. 1963, is, in fact, a source for the present SDCL 28-14-6, which contains subject matter previously part of the Section 39.1702 of the 1939 code). There has been an almost complete absence of decisions and opinions interpreting the subject matter of SDCL 28-14-5 since the amendment of the predecessor statute in 1953. Prior to 1953 Section 39.1702 was as follows:
Whenever any county within this state shall become obligated to, and does pay for the care, support, and maintenance, and burial expenses of any poor person as defined herein, the county in such cases shall have a lien upon all the property, real and personal, except property absolutely exempt from seizure and sale, of such poor person for all sums of money expended therefor by any county, such lien to become effective immediately upon the payment made by any county, and each additional payment made for such poor person shall be added to the amount of the lien. If any poor person receiving benefits from the county be a married person, the lien therein established shall also be a lien upon all the property, real and personal, except on property absolutely exempt from seizure and sale, of the husband or wife of such poor person as the case may be.
The 1953 amendment included the following language:
'Including joint tenancy and homestead interests belonging to the poor person, or to be hereafter acquired by the poor person, or in which the poor person has any interest.'
The 1953 amendment omitted the following language previously contained in Section 39.1702:
'Except property absolutely exempt from seizure and sale.'
'Homestead rights do not exist under common law. They are, it seems, peculiar to America, and are dependent upon constitutional or statutory provisions.' 40 Am.Jur.2d 117, Homestead, Section 2.
'Subject to constitutional limitations, the legislative branch of government has the plenary power to create rights of homestead.' 40 Am.Jur.2d 120, Homestead, Section 7.
The language of SDCL 28-14-5 clearly purports to create a lien on property of a poor person who receives care, support and maintenance from the county. The language of SDCL 43-45-3 purports to exempt a homestead from 'attachment or mesne process, and from levy and sale on execution, and from any other final process issued from any court.' Two rules of statutory interpretation are applicable to this clear-cut conflict between the two statutes. The 1953 amendment, which purported to create an exception to the absolute exemption of a homestead, took precedence over the exemption because it was the most recent enactment. That precedence continues, notwithstanding the fact that SDCL 43-45-3 has been re-enacted in its previous form through successive adoptions by the Legislature of the South Dakota Codified Laws, for the reason that SDCL 28-14-15 was simultaneously re-enacted and no change of priorities occurred. The rule of construction that requires the more specific to take precedence over the more general also dictates that SDCL 28-14-5 prevails, to the extent that it is in conflict, over SDCL 43-45-3. SDCL 28-14-5 is specific in that it presumes to create an exception as to only one class of creditor, counties who have made certain payments, whereas SDCL 43-45-3 presumes to apply to all creditors.
SDCL 44-13-1, enacted in 1969, presumes to create a lien in favor of a county providing ambulance service under the provisions of SDCL 34-11-1, against property of any person receiving such ambulance service, and further provides that such lien shall extend to homestead interests. The same rules of statutory construction apply to such lien as to the provisions contained in SDCL 28-14-5.
SDCL 27A-13-6, 27A-13-16 and 27A-13-31 provide for reimbursement of a county for payments made for the care of an indigent poor person in the South Dakota Human Services Center, and for collection through a civil suit, and that a judgment obtained in such a suit is a lien on the real property of the patient and may be collected as other liens. For the reason that the eligibility for poor relief is the basis of the payment by the county under the provisions of SDCL 27A-13-6, the term 'collected as other liens,' contained in SDCL 27A-13-31, may be regarded as equating such liens with other poor relief liens.
For the above and foregoing reasons, it is my opinion that the answer to question one is:
'Yes, the claimed liens of the county are an exception to the homestead exemption.'
and as to question TWO, the answer is:
'Yes, but only to the extent that the sale price exceeds the county liens and not in excess of thirty thousand dollars.'
Respectfully submitted,
Mark V. Meierhenry
Attorney General
