64 Wis. 301 | Wis. | 1885
The respondent, the plaintiff in the circuit court, became .owner of an undivided half of the main premises on the 14th day of May, and of the additional six inches on the 25th day of August, 1814, and on the 3d day of July, 1815, he and his wife conveyed the main premises, and on the 19th day of November, 1811, the additional six inches, to his son, Thomas 0. Jones, without any valuable consideration, but of natural love and affection, and by way of advancement out of the estate of said plaintiff of the sum of $5,000, but subject to a mortgage on the main premises, then outstanding, of an unpaid balance of $1,500, at ten per cent, interest from May 14, 1815, which the said Thomas assumed to pay. It was understood and verbally agreed between the plaintiff and wife and the said Thomas, at the time of the execution of said deeds, that the plaintiff and wife, and each of them, should retain the possession of said premises, and have the rents, issues, and profits thereof during their natural lives, and the life of each of them, notwithstanding the covenants of said deeds.
At the time of the execution of the last-mentioned deed of the additional six inches of land, the plaintiff, for certain reasons hereafter to be noticed, demanded a settlement of their affairs of said Thomas, and it was then agreed that Thomas should give the plaintiff his note for the sum of $2,500, to become due ten years after date, with interest at eight per cent., payable annually, and secure the same by mortgage on the whole of said premises, which at that time was done accordingly. For more than one year before the 13th day of March, 1880, there had been a promise and contract of marriage between the said Thomas O. Jones and the defendant Amanda L. Jones to the knowledge of the
On the 3d day of May, 1881, Thomas 0. Jones died; leaving the defendant Amcmda L. Jones his only heir at law, but by his last will and testament, which was admitted to probate on the 19th day of July thereafter, he devised to said defendant Amamela one third of all his property, real and personal, in lieu of her dower, and the other two thirds thereof to his father, the said plaintiff. The personal estate of said Thomas did not exceed in value, over exemptions, the sum of $3,000, and the allowances to creditors and for expenses, etc., amounted to the sum of over $8,000, and the value of the premises so conveyed was $6,000, and the annual rental value thereof was $560. On the 20th day of April, 1882, the defendant, Amemela L. Jones, filed in the county court her written election to take the provisions made by law, instead of the provisions made for her in said will. On the 19th day of July, 1881, the day when said will was admitted to probate, one Price Lewis was duly appointed the executor thereof, and afterwards claimed said premises as apart of the estate of the said Thomas 0. Jones,
The above are substantially the facts proved and found by the circuit court. As conclusions of law the circuit court found substantially that the said defendant Amanda L. Jones was entitled to dower as the widow of said Thomas, in said premises, subject to both of said mortgages, and the interest thereon until the present time, and was also entitled to one third of the rents and profits thereof, deducting the taxes, insurance, and reasonable repairs, from the time of serving her answer in the cause. It was also found that the $1,500 mortgage had been paid by the plaintiff, and that neither said mortgage nor the $2,500 mortgage was canceled by or had merged in the legal estate conveyed to the plaintiff by the deed of March 13, 1880.
Exceptions were filed by both parties to the findings, so far as they were unfavorable to their respective claims in the suit.
The learned counsel of the respondent contends that by virtue of the statute (secs. 2870, 2875, and 3070, R. S.)he may avail himself in this court of any exceptions taken by him to the findings of fact or conclusions of law, for the purpose of obtaining a reversal or modification of the judgment so far as it is adverse to the respondent, and therefore claims that the findings or conclusions of law that the said defendant Ama/nda L. Jones is entitled to dower in said premises, and that she is entitled to any rents and profits thereof in any share, or for any time, are erroneous. These provisions have been construed by this court in recent cases to allow the respondent to make available his exceptions only for the
In view of this rule we do not feel called upon to review the findings of facts and conclusions of law which give to the defendant Amanda dower in said premises, and one. third of the rents and profits thereof since the service of her answer herein, notwithstanding the deed of her husband, Thomas, to his father, the plaintiff, on the day of the marriage, but before its consummation. But we may say that the facts and circumstances of the transaction'lead to the irresistible conclusion that both Thomas and his father intended by that deed to defraud the defendant Amanda of her prospective inchoate right of dower in the premises. The plaintiff knew of the contract of marriage' to be consummated upon that day, and both he and Thomas made haste, just before such consummation, and so near -to it as to preclude the possibility of her discovering it before the marriage, to thus defraud her of her prospective right/ That deed -was clearly voluntary, and, as stated' in- the finding, was made for the purpose of putting the title back in the father. It was kept from record, and the fact of its' existence carefully concealed from the defendant for a long time, and Thomas made his will devising to the defendant one third of his real as well as personal estate in-lieu of her
■ "We have said this much, and perhaps too much, upon this question, not really opened for review on this appeal, out of deference to the learned counsel on both sides, it having been discussed in both briefs. We think the circuit court was clearly right in not giving effect to the deed of March 13, 1880, made under such circumstances, as against the defendant’s right of dower in the premises. That deed being void as to the defendant’s right of dower, and the deeds of the plaintiff and wife to Thomas being absolute, with full covenants and without reservation, the defendant
The only other important question in this case is whether the first mortgage, the balance of which was $1,500, and which was outstanding on the main premises when the first deed of 1875 was executed to Thomas C. Jones, and the payment of which he assumed, is still outstanding and unpaid, or whether, if paid and discharged by the plaintiff, he was subrogated to the rights of the mortgagee or as-signee, and held the same as a valid lien on said premises at the time of the death of said Thomas C. Jones. That mortgage was given by the plaintiff and one Evans, the owner of an undivided half of the premises, to one Peter Bertholf, in 1874, and was assigned to the National Bank of Watertown, March 20, 1879, and paid by the plaintiff, and discharged of record in January, 1880. The deed of the plaintiff to Thomas C. Jones in 1875 was for an undivided half of the main premises, on which there was a large brick block. Afterwards the plaintiff obtained title to an additional six inches of land adjoining the same. It seems that the deed of 1875 was not delivered or recorded until in 1877, when the said Thomas obtained the possession of the same and placed it upon record. The testimony of one of the witnesses, the daughter of the plaintiff, was, in effect, that when the plaintiff ascertained that said deed had been recorded he was dissatisfied and said to Thomas: “We
There is no direct evidence of what the consideration of that mortgage was. The inference, however, appears to us irresistible that that mortgage was intended to be the result of a. final settlement between the plaintiff and Thomas of all their affairs, including the assumption by Thomas of the payment, of the $1,500 mortgage, and that there was a ratification of the delivery and registration of said deed with such assumption discharged. The presumed value of the additional six inches was $100, and the consideration of the deed of -.18Y5 remained uhchanged in respect to an advancement of $5,000 and natural love and affection. What other possible consideration was there for the $2,500 mortgage except the $1,500 mortgage and ten per cent, interest accrued thereon? There was nothing else apparent that could have been the subject of settlement. In confirmation of this'view the plaintiff afterwards voluntarily paid said mortgage and had the same discharged of record. We think that the circuit court ought to have found the defendant Ama/nda L. Jones entitled to dower in said premises subject only to the $2,500 mortgage, the only real or apparent incumbrance upon the same at the time of the death of said Thomas C. Jones.
' It was contended by the learned counsel of the appellant that both of said mortgages merged in the legal title which the plaintiff obtained by the deed of March 13,1880. That
The findings and conclusions of law have not been specially referred to, and the order of argument of counsel has not been very closely followed; but the substantial facts have been considered, and such conclusions reached in respect to the rights of the parties as seem consonant with law and equity. We hold, then, (1) that the deed of Thomas 0. Jones to the plaintiff of March 13, 1880, was executed in fraud of the defendant’s right of dower in said premises, and that she is entitled to dower therein notwithstanding said deed; (2) that the defendant Amanda L. Jones is en
By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded with direction to render judgment in accordance with this opinion.