WPHTINíG, P. J.
Christina Ernst died possessed of the legal title to a tract of land in this state. She left surviving her, her husband, Alfred Ernst, five children by a prior marriage, and two idhildren by her marriage with Ernst. The guardian of the husband brings this action against the executor of the estate of Christina Ernst and against all of her children except one, who joined as plaintiff; and such guardian seeks to have it adjudged that this land was trust property, th,e property of Jacob Ernst, title to which was held' in trust b}r Christina Ernst. The judgment of the trial court was in favor of the guardian and against all the defendants and the coplaintiff. From such judgment and an order denying a new trial all the defendants appealed.
[1, 2] The only assignment of error for our consideration is that “the allegations of the fourth paragraph of the finding’s of fact and conclusions of law are not sustained ,by the evidence * *■ * in that, * * *” anld then follows therein a statement of those facts which appellants contend are established by the evidence. We deem this an opportune time to call attention to the error in this form of assignment. This assignment properly raises but one question — the sufficiency of the' evidence to support the fourth paragraph of findings; but appellants, instead of 'calling attention to some finding or findings unsupported by the evidence and! points ing out wherein the evidence fails to support it, set forth therein many other facts which, they assert were establish by the evidence. If appellants considered that certain facts, .which they 'believed to be established by tire evidence and which w'ere not in the court’s findings, were 'material, they should have sought further findings; and then, in case the trial court .failed to make such further findings., they should have assigned as error the failure of the court to make the findings- askeidl. Appellants cannot fail to [166] ask for findings and then cure such failure by1 assigning insufficiency of evidence to support the findings made.
[3] An assignment that conclusions of law are unsupported by the evidence is improper (Norbeck, etc., v. Nielson, 39 S. D. 410, 164 N. W. 1033). — it being an attempt to disregard that upon ■which the conclusion© are 'based, tire findings' of fact. No matter if the evidence is such as would support findings which in turn would support the conclusions, yet, if the trial court makes erroneous findings or fails, to find on certain material matters, the conclusions cannot stand when attacked because of the insufficiency of the findings. Upon the other hand, if the findings are ample to support the conclusions, but such findings, are not supported by the evidence, or there was error in refusing to make certain further and additional1 findings asked for, so that, under the findings as they should have been entered, the conclusion made would have been erroneous, the only correct methods of preserving the record anld presenting the errors are not by assigning the insufficiency of the evidence to support the conclusions, but, in the one case, by assigning insufficiency of the evidence to support the erroneous findings and, in the other case, by assigning error of the court in refusing the findings requested
[4] The facts which appellants claim were established by the evidence, .but which were not found by thle trial court, are not properly before u®, but, a© appellants have treated their assignment as giving this court the right to determine what facts were established by the evidence and then to say what the rights- of the parties were in the light of the facts so established, and respondent has met them on the issues as thus presented, raising no question as to the insufficiency of the assignment to present the matters1 discussed, we have examined sudli evidence with a view of determining the correctness of the judgment.
Resolving all issues of fact, as we must, in favor of respondent, except where the clear preponderance of the evidence supports appellants’ claim in relation thereto, -we find the material facts to be as follows:
When Alfred Ernst married 'Christina, her children were quite small. They became -a part of the family, the boys staying at 'home and helping there, the girls, as they grew up, working part of the time away from home, but their earnings being collected [167] and retained by their mother. Alfred Ernst was, if not at time of such marriage, at least soon thereafer, and) afterwards remained, mentally incompetent to manage his business affairs, though physically able to perform manual labor. The result of this condition was that the wife assumed full control of all their business affairs. At time of their marriage each had1 little, if any, property. iShe rented farms and 'handled1 all moneys received therefrom. She finally purchased a relinquishment to a tract of government land in Nebraska, entry was made thereon in the name of the husband, and patent issued therefor to the husband as grantee. This land was afterwardte sold, the proceeds thereof being taken by the wife. These parties came to this state and purchased) the land involved in this action, paying for same with a part of the proceeds of the land that they had sold. The wife attended to this purchase, and took the deed in her name without the husbandis knowledge. Several years before she died he learned that the deed ran to her.
[5] It is disclosed by the evidence that the wife and mother left a will wherein she attempted to devise an undivided one-third of this land to her five dhildren by 'her first marriage, a life estate in the remaining two-third's to her husband, and such two-thirds, subject to such life estate, equally among all her children. It also appears that, as a settlement of trouble "growing out of the situation presented by the provisions of this will, Alfred Ernst and all seven of the children entered into a written agreement, whereby it -was agreed that, regardless of the will, Alfred Ernst should have a life estate in all the land, the remainder to go to all seven of Christina Ernst’s 'children, share and share alike. It is to he regretted that this agreement cannot be enforced, as it is undoubtedly, under the facts of this case, most fair and equitable. But owing to the incompetency of Alfred Ernst such agreement had no binding force as against him. This cause must be determined exactly as though this action were one brought on behalf of Alfred Ernst against his wife — her death, the will, and the attempted settlement do not affect the rights of Alfred Ernst.
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WPHTINíG, P. J.
Christina Ernst died possessed of the legal title to a tract of land in this state. She left surviving her, her husband, Alfred Ernst, five children by a prior marriage, and two idhildren by her marriage with Ernst. The guardian of the husband brings this action against the executor of the estate of Christina Ernst and against all of her children except one, who joined as plaintiff; and such guardian seeks to have it adjudged that this land was trust property, th,e property of Jacob Ernst, title to which was held' in trust b}r Christina Ernst. The judgment of the trial court was in favor of the guardian and against all the defendants and the coplaintiff. From such judgment and an order denying a new trial all the defendants appealed.
[1, 2] The only assignment of error for our consideration is that “the allegations of the fourth paragraph of the finding’s of fact and conclusions of law are not sustained ,by the evidence * *■ * in that, * * *” anld then follows therein a statement of those facts which appellants contend are established by the evidence. We deem this an opportune time to call attention to the error in this form of assignment. This assignment properly raises but one question — the sufficiency of the' evidence to support the fourth paragraph of findings; but appellants, instead of 'calling attention to some finding or findings unsupported by the evidence and! points ing out wherein the evidence fails to support it, set forth therein many other facts which, they assert were establish by the evidence. If appellants considered that certain facts, .which they 'believed to be established by tire evidence and which w'ere not in the court’s findings, were 'material, they should have sought further findings; and then, in case the trial court .failed to make such further findings., they should have assigned as error the failure of the court to make the findings- askeidl. Appellants cannot fail to [166] ask for findings and then cure such failure by1 assigning insufficiency of evidence to support the findings made.
[3] An assignment that conclusions of law are unsupported by the evidence is improper (Norbeck, etc., v. Nielson, 39 S. D. 410, 164 N. W. 1033). — it being an attempt to disregard that upon ■which the conclusion© are 'based, tire findings' of fact. No matter if the evidence is such as would support findings which in turn would support the conclusions, yet, if the trial court makes erroneous findings or fails, to find on certain material matters, the conclusions cannot stand when attacked because of the insufficiency of the findings. Upon the other hand, if the findings are ample to support the conclusions, but such findings, are not supported by the evidence, or there was error in refusing to make certain further and additional1 findings asked for, so that, under the findings as they should have been entered, the conclusion made would have been erroneous, the only correct methods of preserving the record anld presenting the errors are not by assigning the insufficiency of the evidence to support the conclusions, but, in the one case, by assigning insufficiency of the evidence to support the erroneous findings and, in the other case, by assigning error of the court in refusing the findings requested
[4] The facts which appellants claim were established by the evidence, .but which were not found by thle trial court, are not properly before u®, but, a© appellants have treated their assignment as giving this court the right to determine what facts were established by the evidence and then to say what the rights- of the parties were in the light of the facts so established, and respondent has met them on the issues as thus presented, raising no question as to the insufficiency of the assignment to present the matters1 discussed, we have examined sudli evidence with a view of determining the correctness of the judgment.
Resolving all issues of fact, as we must, in favor of respondent, except where the clear preponderance of the evidence supports appellants’ claim in relation thereto, -we find the material facts to be as follows:
When Alfred Ernst married 'Christina, her children were quite small. They became -a part of the family, the boys staying at 'home and helping there, the girls, as they grew up, working part of the time away from home, but their earnings being collected [167] and retained by their mother. Alfred Ernst was, if not at time of such marriage, at least soon thereafer, and) afterwards remained, mentally incompetent to manage his business affairs, though physically able to perform manual labor. The result of this condition was that the wife assumed full control of all their business affairs. At time of their marriage each had1 little, if any, property. iShe rented farms and 'handled1 all moneys received therefrom. She finally purchased a relinquishment to a tract of government land in Nebraska, entry was made thereon in the name of the husband, and patent issued therefor to the husband as grantee. This land was afterwardte sold, the proceeds thereof being taken by the wife. These parties came to this state and purchased) the land involved in this action, paying for same with a part of the proceeds of the land that they had sold. The wife attended to this purchase, and took the deed in her name without the husbandis knowledge. Several years before she died he learned that the deed ran to her.
[5] It is disclosed by the evidence that the wife and mother left a will wherein she attempted to devise an undivided one-third of this land to her five dhildren by 'her first marriage, a life estate in the remaining two-third's to her husband, and such two-thirds, subject to such life estate, equally among all her children. It also appears that, as a settlement of trouble "growing out of the situation presented by the provisions of this will, Alfred Ernst and all seven of the children entered into a written agreement, whereby it -was agreed that, regardless of the will, Alfred Ernst should have a life estate in all the land, the remainder to go to all seven of Christina Ernst’s 'children, share and share alike. It is to he regretted that this agreement cannot be enforced, as it is undoubtedly, under the facts of this case, most fair and equitable. But owing to the incompetency of Alfred Ernst such agreement had no binding force as against him. This cause must be determined exactly as though this action were one brought on behalf of Alfred Ernst against his wife — her death, the will, and the attempted settlement do not affect the rights of Alfred Ernst.
[6, ] It is not for the judiciary to attempt to right any injustice that has its origin solely in statutory law®. Thus it matters not what our views may he as to the wisdom or justice of those laws which declare the husband to be the head of the family and recognize him as the sole and exclusive owner of that which has [168] been acquired through the joint efforts of husband and wife. Under existing laws the Nebraska land1 was- the sole propert}^ of the husband, as much so as if acquired by him prior to- his marriage. The question presented upon1 this appeal is no dliffe-rent, except as it is affected by the husband's incompetency, than would be presented if this land ha-d been entered and patented in the wife's name, an-dl the husband had1 assumed the management thereof, and such land had been sold and- .he had taken the proceeds thereof and! without the knowledge or .consent of his wife 'had invested such proceeds in other land1 taking title in himself. Would any one question the legal right of the wife to -have such land declared trust property of which she was the real owner? 'Clearly not.
The judgment and order appealed from are affirmed.