We are satisfied, from a perusal of the evidence, that there was sufficient evidence in the case to justify the judgment of divorce. The sole remaining question is as to the division of property.
The defendant’s counsel is entirely right in his contention that the court derives its power to pass title to lands upon a judgment of divorce entirely from the statute. Bacon v. Bacon, 48 Wis. 197. The statute provides (R. S. sec. 2364)
It was argued that the words, property derived from the husband, as used in sec. 2364, meant only property directly transferred by the husband to the wife. Under this contention, if the husband deeded to the wife a parcel of land, and while she still owned the parcel a divorce was obtained by either party, the judgment ■ of divorce might provide for a division of that land; but if the land had been sold and the proceeds invested in another parcel of land, such second parcel could not be divided. ■ Ye cannot subscribe to such a severe construction. The statute must be so construed as • to effectuate its evident purpose. The apparent purpose of' the provision under consideration is to authorize the court to • make an equitable and final division of the husband’s entire property, whether it be held in his own name or in his wife’s name, and to exclude from such division the property of the wife which has not been derived from the husband. To accomplish this purpose, urn think the test must be, not whether ■ the particular piece of property standing in the wife’s name
Applying this principle to the present case, it is quite clear that the trial court was entirely justified in transferring the title to a part of the land held in the wife’s name to the husband. The original forty acres on which the parties began to live in 1848 was the wife’s property prior to her marriage, and represented an investment of $50. The rents, issues, and profits of it, however, belonged to the husband, prior, at least, to the enactment of ch. 44, Laws of 1850.
The division made by the court seems to be fair and equitable between the parties. Certainly the defendant cannot complain, as her share is somewhat larger than the plaintiff’s. "We see no objection to the charge of $1,100 made upon the lands assigned to the wife. If the court could divest title to these lands, it manifestly -could incumber the title by subjecting it to such a charge. There is, however, no authority for that part of the judgment 'which directs an issuance of execution against the wife in case the said $1,100 is not paid within sixty days. Neither the statute nor the common law charges her with any personal liability, and this part of the judgment is erroneous and must be reversed.
By the Court. — Judgment affirmed, except that part thereof which directs the issuance of execution against the defendant, which part of the judgment is reversed. No - costs awarded to either party. The respondent must pay the fees of the clerk of this court.
Sec. 1, ch. 44, Laws of 1850, provides: “The real estate, and the rents, issues, and profits thereof, of any female now married, shall not he subject to the disposal of her husband, but shall be her sole and separate property, as if she were a single female.” — Rep.