Male v. Dahlgrin

Sedgwick, J.

This is an appeal from an order of the district court for Custer county confirming a sale of real estate upon the foreclosure of a mortgage. Before the sale an objection was filed that one of the appraisers was not a freeholder, and a motion was made in the court below to set aside the sale upon that ground. The appraiser was residing upon land which he had entered as a homestead under the act of congress. The sheriff’s return stated that the appraiser was a freeholder, but affidavits were filed tending to show that the appraiser had stated at about the time of the sale that he had not entered the land, nor resided thereon for five years, at the time of the appraisement. One witness was examined orally. He testified that he had known the appraiser for twelve or thirteen years, and was at his place *525 in April or May of 1894, and the appraiser and his family were then residing upon the homestead in question. This was a few months less than five years before the time of the appraisement, and it is insisted that there is no positive proof that the residence upon the homestead had been the full term of five years. But the witness referred to testified, among other things, that the appraiser bought the homestead right in 1890, and “I think he lived there, I am satisfied in my own mind' he lived there prior to that time [May, 1894], but I wasn’t there.” The trial court heard this evidence, and is better able to judge of the many considerations that affect the credibility of the witness and the meaning and force of his testimony. There are no facts clearly established by the written evidence that are inconsistent with the construction evidently given by the trial court to the evidence of this witness. The appraiser’s affidavit Avas filed, in Avhich he stated that he entered the land in 1893 and had lived there continuously from that time.

We think that the order appealed from is sufficiently supported by the evidence, and it is therefore

Affirmed.