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CHAPTER 21-19

CLAIM OF HOMESTEAD AND PERSONAL PROPERTY EXEMPTIONS

21-19-1      Definition of terms.
21-19-2      Affidavit required to levy on homestead in excess of exemption--Contents--Filing and service of notice of levy and affidavit.
21-19-3      Notice of levy on property--Contents--Statement as to claim of exemptions.
21-19-4      Service on debtor of notice of levy.
21-19-5      Effect of levy made without notice--Time allowed for claim of exemptions--Restoration on claim of exemptions without notice of levy.
21-19-6      Court order for substitute method of making service.
21-19-7      Retention of property levied after notice to debtor.
21-19-8      Sale of perishable property seized--Retention of proceeds.
21-19-9      Time allowed for claim of exemptions--Claim by debtor's dependent.
21-19-10      Contents of claim of exemptions--Schedule of property.
21-19-11      Verification of claim required.
21-19-12      Failure to claim additional exemptions as waiver.
21-19-13      Relief from default in claiming exemptions--Effect on prior proceedings.
21-19-14      Procedure for claim exclusive except as to absolute exemptions.
21-19-15      Absolute exemptions not waived by failure to claim--Proceedings to reach homestead exceeding exemption.
21-19-16      Retention of property claimed as exempt until final determination.
21-19-17      Application and order for immediate release of items of definite value--Earnings necessary for support of debtor and family.
21-19-18      Release of exempt property on failure of creditor to answer.
21-19-19      Creditor's answer to claim of exemptions--Specification of disputed facts and valuations.
21-19-20      Disputed valuation of homestead--Demand for appraisal.
21-19-21      Appointment of appraisers.
21-19-22      Specification of items to be appraised--Undisputed valuations--Appraisal of homestead.
21-19-23      Appraisement at fair market value--Completion and filing of appraisement.
21-19-24      Hearing on appraisement--Valuations accepted unless questioned--Recitals in court order on appraisement.
21-19-25      Amendment of papers filed.
21-19-26      Order releasing exempt property--Amended claim where exemptions claimed exceed limitations.
21-19-27      Valuation of additional property to permit full benefit of exemptions--Selection and release of additional property.
21-19-28      Division and setting aside homestead exceeding limitations--Court order where division not feasible.
21-19-29      Sale of homestead--Disposition of proceeds--Postponement of sale to permit payment by debtor.
21-19-30      Stay of proceedings on appeal from order--Security required.


     21-19-1.   Definition of terms. As used in this chapter unless the context otherwise plainly requires:
             (1)      "Absolute exemptions" means property which, under chapters 43-31 and 43-45, is absolutely exempt from levy;
             (2)      "Additional exemptions" means additional property which may be claimed as exempt under chapter 43-45;
             (3)      "Claim" means a claim of exemptions as provided in this chapter;
             (4)      "Claimant" means a debtor or a dependent of debtor making claim of exemptions;
             (5)      "Court" means the court wherein the action is brought in which action the levy is made;
             (6)      "Creditor" means a person for whose benefit any such process is used;
             (7)      "Debtor" means a person on whose property levy has been made;
             (8)      "Levy" means any garnishment, attachment, or any seizure or levy whatsoever under execution or any other judicial process for the purpose of satisfying or securing the claim or demand of a creditor;
             (9)      "Officer" means a person making such levy;
             (10)      "Property" means any property whether real, personal, or mixed.

Source: SDC 1939 & Supp 1960, § 37.4901.


     21-19-2.   Affidavit required to levy on homestead in excess of exemption--Contents--Filing and service of notice of levy and affidavit. No levy shall be made on any homestead to reach the valuation thereof in excess of the homestead exemption set by subdivision 43-45-3(2), whether on attachment, execution, or other process, except as provided in this section. In the event the creditor claims such valuation exceeds such exemption he shall deliver to the officer holding the process, an affidavit, by himself or his attorney, setting forth the legal description of such homestead if real property, or the descriptive data contained on the certificate of title if a mobile home, the claim as to valuation thereof, and all encumbrances according to the affiant's best knowledge, information, and belief. If it appears from such affidavit that the value of debtor's equity exceeds such homestead exemption, the officer must file in the office of the register of deeds of the county where the homestead is situated, a notice of levy on such homestead with the said affidavit attached thereto, which notice and affidavit shall be duly recorded and shall be forthwith served upon the debtor in the same manner as provided by this code as to other notices. From the time of such filing and such service, such notice shall be effective as a levy only on the excess over and above the homestead exemption.

Source: SDC 1939, § 37.4914; SL 1957, ch 186, § 4; SL 1972, ch 233, § 2; SL 1977, ch 185, § 1; SL 1978, ch 156, § 1.


     21-19-3.   Notice of levy on property--Contents--Statement as to claim of exemptions. A notice of levy may be given by the creditor or the officer and shall set forth:
             (1)      A brief description of the process under which the levy was made, with the names of the parties to the action;
             (2)      The date of the levy and the name and official designation of the officer making the levy;
             (3)      A list of the property on which the levy was made;
             (4)      A statement that the debtor, within five days after service of the notice or within eight days after actual mailing thereof in the event of service by registered or certified mail, may claim exemptions allowed by law in addition to his absolute exemptions and that any dependent of a debtor may make such claim within five days after expiration of the period within which the debtor may make such claim, and that unless such debtor or such dependent makes such claim within such time, such failure to make such claim except as otherwise specifically provided by law, will be deemed a waiver of such additional exemptions.

Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; RC 1919, § 2667; SDC 1939 & Supp 1960, § 37.4902.


     21-19-4.   Service on debtor of notice of levy. Notice of levy under § 21-19-3 may be served upon the debtor or his attorney, or if the debtor is not represented by an attorney of record in the action or proceeding and if the debtor cannot be found within the county where the action or proceeding is pending, the notice may be served on the debtor by registered or certified mail addressed to the debtor's last known post office address.

Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; RC 1919, § 2667; SDC 1939 & Supp 1960, § 37.4902.


     21-19-5.   Effect of levy made without notice--Time allowed for claim of exemptions--Restoration on claim of exemptions without notice of levy. The notice of levy provided by § 21-19-3 shall not be essential to the validity of any levy, and any levy made without giving such notice shall be valid and shall have full force and effect except as otherwise specifically provided in this section, but the time in which a debtor or any dependent of a debtor may make claim of exemptions as provided in § 21-19-9, shall not commence to run unless and until such notice is given, and in the absence of such notice such claim may be made by such debtor or dependent at any time within ninety days of actual knowledge of such levy, or thereafter by permission of the court, if the court finds there was reasonable excuse for not making such claim within such ninety days. In the event any such claim is made in a case where no notice has been given under § 21-19-3 the court must require any property set aside to the debtor as exempt or its fair value to be restored by the creditor to the debtor.

Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; RC 1919, § 2667; SDC 1939 & Supp 1960, § 37.4902.


     21-19-6.   Court order for substitute method of making service. In any case when it fairly appears upon application to the court that it is not practicable or feasible to make service of any notice or paper on any creditor or debtor in the manner provided in this chapter, the court may make an order directing that some other manner or method of making such service be used, the method or manner so fixed to be such as the court determines and which will be most likely under the circumstances to give effective notice to the party to be served.

Source: SDC 1939 & Supp 1960, § 37.4913.


     21-19-7.   Retention of property levied after notice to debtor. Except as provided in §§ 21-19-8 and 21-19-17 the officer must retain in his possession all money and property levied upon for at least fifteen days after notice to the debtor of the levy.

Source: SDC 1939 & Supp 1960, § 37.4910.


     21-19-8.   Sale of perishable property seized--Retention of proceeds. As to perishable property either the creditor, the debtor, or the officer may make application to the court for an order for the immediate sale thereof, the procedure on such sale to be as directed by the court. If such sale of perishable property is made, the proceeds thereof must be retained by such officer until the expiration of fifteen days from the date of notice of such levy.

Source: SDC 1939 & Supp 1960, § 37.4910.


     21-19-9.   Time allowed for claim of exemptions--Claim by debtor's dependent. Whenever a debtor upon whose property a levy has been made desires to claim as exempt any of such property, he may do so at any time after the levy and within five days after notice of such levy; or within eight days after actual mailing of such notice when the service is by registered or certified mail. Such claim shall be made by filing the same with the court and service upon the creditor and officer. If the debtor does not make such claim within such time, any dependent of debtor may make such claim within five days after expiration of the period within which the debtor may make such claim.

Source: CCivP 1877, §§ 326, 329; SL 1885, ch 55, § 1; CL 1887, §§ 5130, 5133; RCCivP 1903, §§ 355, 358; RC 1919, §§ 2662, 2665; SDC 1939 & Supp 1960, § 37.4903.


     21-19-10.   Contents of claim of exemptions--Schedule of property. The claim of exemptions under § 21-19-9 shall set forth the facts relevant to such claim, and if the claimant does not reside within the county where the levy is made, must show the name and address of a person residing within such county on whom any paper may be served with the same force as if served on the claimant. Such claim shall also set forth a schedule of all of debtor's property of every kind and character, including money on hand, debts due and owing the debtor, earnings of the debtor, property held by others for the debtor's use and benefit, and all of the debtor's property rights of every kind and description with the fair value of every item of property scheduled. Encumbrances, if any, and the amounts thereof shall be disclosed as to each item of property. At the conclusion of such schedule there shall be set forth all items of property claimed as exempt whether or not levy has been made thereon and showing what items are claimed as exempt whether or not levy has been made thereon and showing what items are claimed as absolute exemptions and what items are claimed as additional exemptions.

Source: CCivP 1877, § 326; SL 1885, ch 55, § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.


     21-19-11.   Verification of claim required. The claim of exemptions under § 21-19-9 must be verified by the claimant, if available, and if not, by the agent or attorney for the claimant with statement of the reasons why the verification was not made by the claimant.

Source: CCivP 1877, § 326; SL 1885, ch 55, § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.


     21-19-12.   Failure to claim additional exemptions as waiver. Failure of a debtor or a dependent to make a claim of additional exemptions as provided in §§ 21-19-9 to 21-19-11, inclusive, shall be deemed a waiver thereof by the debtor and his dependents unless and until relief from the default is granted.

Source: SDC 1939 & Supp 1960, § 37.4904.


     21-19-13.   Relief from default in claiming exemptions--Effect on prior proceedings. Default in the making of a claim of exemptions may be relieved at any time while such levy remains in force upon notice to the creditor, and upon showing satisfactory to the court of reasonable excuse. Relief from such default shall not in any manner whatever affect the validity of any proceedings previously had except:
             (1)      As to any sales made under such levy to any person who is in effect acting for the creditor or in collusion with the creditor, property so sold shall be treated as if in the possession of the creditor;
             (2)      As to any property still in possession of the officer or in the possession of the creditor, whether through sales or otherwise or deemed in the possession of the creditor under subdivision (1) of this section; and as to proceeds of any sales other than sales specified in subdivision (1), the same shall be subject to claim of exemptions only upon such terms as the court deems just, which terms must be such that the creditor shall be reimbursed for all expenses, including reasonable attorney's fees necessarily incurred subsequent to the time when such claim for exemptions should have been made as provided in § 21-19-9.

Source: SDC 1939 & Supp 1960, § 37.4903.


     21-19-14.   Procedure for claim exclusive except as to absolute exemptions. Except as to absolute exemptions no property shall be exempt unless claimed as exempt as provided in §§ 21-19-9 to 21-19-13, inclusive.

Source: CCivP 1877, § 326; SL 1885, ch 55, § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.


     21-19-15.   Absolute exemptions not waived by failure to claim--Proceedings to reach homestead exceeding exemption. Failure to claim absolute exemptions shall not constitute a waiver, and no rights whatsoever shall be acquired through or by any levy on property absolutely exempt. But proceedings may be had as provided by this chapter to reach under levy any part of the debtor's homestead which is in excess of the homestead exemption as provided by law.

Source: SDC 1939 & Supp 1960, § 37.4904.


     21-19-16.   Retention of property claimed as exempt until final determination. If the debtor or a dependent makes claim of exemptions, the officer must retain in his possession all property claimed as exempt until final determination of such claim.

Source: SDC 1939 & Supp 1960, § 37.4910.


     21-19-17.   Application and order for immediate release of items of definite value--Earnings necessary for support of debtor and family. If claim for exemptions is made under §§ 21-19-9 to 21-19-13, inclusive, the claimant may, upon three days' notice to the creditor, apply to the court for an order for immediate release from said levy of any property claimed as exempt in said claim, as to which property the valuation is definite and fixed and not open to dispute, meaning such items as money, bank accounts, earnings owing to debtor, and similar items. Upon hearing such application the court may order the immediate release from such levy of such items if satisfied that the same are clearly within the limitations of the additional exemptions as provided by law, the amount so set aside to be charged against the total amount of additional exemptions to be allowed to the claimant. Such releases where clearly within the limitations of the additional exemptions shall always be ordered when applied for as to earnings of debtor and similar items immediately necessary for the support of debtor and his family.

Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; SL 1913, ch 228; RC 1919, § 2467; SDC 1939 & Supp 1960, § 37.4910.


     21-19-18.   Release of exempt property on failure of creditor to answer. Unless the creditor within three days of service on him of a claim under §§ 21-19-9 to 21-19-13, inclusive, files and serves on the claimant an answer to such claim, the court shall forthwith and ex parte make an order allowing the exemptions as claimed and directing the release of such exempt property from the levy.

Source: SDC 1939 & Supp 1960, § 37.4905.


     21-19-19.   Creditor's answer to claim of exemptions--Specification of disputed facts and valuations. If the creditor disputes the facts as stated in the claim or questions the valuations of property as stated in such claim, he must, within three days of service upon him of such claim, file and serve on claimant an answer thereto. Such answer must specify the alleged facts in such claim which the creditor disputes, and the items of property claimed as additional exemptions as to which the valuations alleged by the claimant are disputed by the creditor.

Source: SDC 1939 & Supp 1960, § 37.4906.


     21-19-20.   Disputed valuation of homestead--Demand for appraisal. If the debtor is the owner of a homestead as defined by law, the creditor may take issue with the valuation thereof claimed by the debtor. If the debtor owns such homestead, but has not made a claim for exemptions, or has not valued such homestead in such claim, the creditor may at any time file and serve upon the debtor a demand for appraisal of such homestead.

Source: SDC 1939 & Supp 1960, § 37.4906.


     21-19-21.   Appointment of appraisers. In such answer or such demand as the case may be the creditor must designate one appraiser. The claimant must within three days after such service file and serve upon the creditor a designation of one appraiser. The two appraisers so selected must select a third appraiser, and if they fail to agree thereon, such third appraiser must be selected by the court. If the appraiser designated by either party is unable to act the vacancy may be filled by the party who originally made such designation. If either party fails to make an appointment which he is entitled to make, the court may make such appointment. Appointment of any appraiser by the court must be on application by the debtor, claimant, or creditor, upon such notice as the court deems reasonable.

Source: CCivP 1877, § 327; CL 1887, § 5131; RCCivP 1903, § 356; RC 1919, § 2663; SDC 1939, § 37.4906.


     21-19-22.   Specification of items to be appraised--Undisputed valuations--Appraisal of homestead. Upon the three appraisers being selected the court shall make an order specifying the property to be appraised. Such order shall specify for appraisal the items of property claimed as additional exemptions as to which items the creditor disputes the valuations alleged by the claimant. As to any items of property claimed as additional exemptions as to which the creditor does not dispute the valuations alleged by the claimant, such valuations shall be accepted as a verity. If the creditor has demanded an appraisal of the homestead or has taken issue with the valuation thereof alleged by the claimant, the order shall also direct the appraisal of the homestead.

Source: SDC 1939 & Supp 1960, § 37.4907.


     21-19-23.   Appraisement at fair market value--Completion and filing of appraisement. The three appraisers must thereupon, and as soon as may be, proceed with the appraisement of the property specified in the order to be appraised, which appraisement must be at the actual fair market value of each item at the place where situated as nearly as can be determined. The appraisement when completed must be subscribed by at least two of the three appraisers which two appraisers must make oath that such appraisement was honestly and impartially made and that the values fixed represent the best judgment of such appraisers. Such appraisement must then be duly filed with the court.

Source: CCivP 1877, § 328; SL 1885, ch 55, § 2; CL 1887, § 5132; RCCivP 1903, § 357; RC 1919, § 2664; SDC 1939, § 37.4907.


     21-19-24.   Hearing on appraisement--Valuations accepted unless questioned--Recitals in court order on appraisement. Upon such appraisement being filed either the claimant or the creditor may bring such matter on for hearing upon reasonable notice to be fixed by the court. Upon such hearing the court shall determine the disputed questions of fact relevant to the debtor's right to be allowed exemptions and evidence in the form of affidavits may be received. Valuations where disputed shall be accepted as fixed by the appraisement, if the court approves the appraisement, which shall be accepted as correct, unless questioned by one of the parties in which event the party questioning the appraisement shall have the burden of showing it should not be approved. If the court disapproves the appraisement, the court shall determine from evidence offered the valuations which are in dispute. The court need not make any formal findings of fact or conclusions of law as to disputed questions, but the court's order, provided for in § 21-19-26, must recite briefly the court's findings on disputed issues.

Source: SDC 1939 & Supp 1960, § 37.4908.


     21-19-25.   Amendment of papers filed. At any time prior to final determination of any claim of exemptions, the court may, for good cause shown, allow amendments to any papers filed.

Source: SDC 1939 & Supp 1960, § 37.4911.


     21-19-26.   Order releasing exempt property--Amended claim where exemptions claimed exceed limitations. If the claimant, on the basis of facts as shown by the claim and answer and as found by the court and on the basis of the valuations as determined, has not claimed as additional exemptions any more than allowed by law, the court shall order the same set aside and released from the levy. If the additional exemptions as claimed exceed the limitations provided by law, the claimant shall be allowed to make an amended claim within the limitations provided by law.

Source: SDC 1939, § 37.4909; SL 1957, ch 186, § 3.


     21-19-27.   Valuation of additional property to permit full benefit of exemptions--Selection and release of additional property. If, to do substantial justice to the debtor with reference to allowing him to select property to the full amount of his additional exemptions as provided by law, it is necessary to fix the value of items of property not included in property originally claimed as exempt, and the parties cannot agree as to valuations, the court may determine the value of such items. If the debtor fails or refuses to make a new selection of additional exemptions, the court shall make it for him. Upon the selection being finally made the court shall order the additional exemptions set aside and released from the levy.

Source: SDC 1939, § 37.4909; SL 1957, ch 186, § 3.


     21-19-28.   Division and setting aside homestead exceeding limitations--Court order where division not feasible. If the net value of the debtor's homestead being determined is more than the homestead exemption set by subdivision 43-45-3(2), the court shall determine whether it is feasible to divide such homestead so that the debtor retains his full homestead exemption as provided by law, which division, if feasible, shall be ordered made and the order shall provide that only that portion not set aside to the debtor is subject to levy. If the court finds that such division is not feasible, the court shall make an order to the effect that only that portion of the debtor's homestead represented by the valuation of such homestead exemption plus any encumbrances is subject to levy.

Source: SL 1890, ch 86, § 1; RCCivP 1903, § 345; RC 1919, § 2658; SDC 1939, § 37.4909; SL 1957, ch 186, § 3; SL 1977, ch 185, § 2; SL 1978, ch 156, § 2.


     21-19-29.   Sale of homestead--Disposition of proceeds--Postponement of sale to permit payment by debtor. If the levy is upon execution, the order shall direct a sale in accordance with this section. If the levy is not upon execution, the order shall provide that if and when execution issues, that such sale shall be made. Such sale shall be of the entire homestead, provided the price offered at such sale exceeds the sum of the homestead exemption set by subdivision 43-45-3(2) plus the costs of sale for the equity of the debtor, and from the purchase price, the officer must pay the amount of such homestead exemption to the debtor, the balance of the sale price to be distributed as provided by law as to execution sales of nonexempt real estate. The order must further provide unless waived by the debtor that sale of the homestead be not had for sixty days, and that at any time prior to the sale the debtor may, at his option, pay to the officer the surplus of the determined valuation of said homestead over and above such homestead exemption plus all encumbrances.

Source: SL 1890, ch 86, § 1; RCCivP 1903, § 345; RC 1919, § 2658; SDC 1939, § 37.4909; SL 1957, ch 186, § 3; SL 1977, ch 185, § 3; SL 1978, ch 156, § 3.


     21-19-30.   Stay of proceedings on appeal from order--Security required. In the event of an appeal from any order in a proceeding for setting aside of exemptions the order shall be stayed only upon the court or the appellate court being satisfied that there is a substantial doubt as to the result of such appeal and upon the appellant furnishing adequate security to be approved by the court granting the stay that the order appealed from will be fully complied with in the event it is affirmed and fully protecting the respondent as to all damages of any nature whatsoever resulting from the delay. Such security may be furnished in the same undertaking as the cost bond upon appeal.

Source: CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; SL 1913, ch 228; RC 1919, § 2467; SDC 1939 & Supp 1960, § 37.4912.


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