Jones v. Jones, 71 Wis. 513

Jones v. Jones

71 Wis. 513 | Wis. | 1888

Oassoday, J.

The learned counsel for the plaintiff is undoubtedly correct in claiming that the judgment on the former appeal was reversed on the sole ground that the widow’s dower had been adjudged subject to the $1,500 mortgage as well as the $2,500 mortgage, when it should only have been subject to the latter mortgage. That appeal was by the widow alone, and, although in form from the whole judgment, yet in substance only from that part of the judgment against her. Her counsel merely asked for a modification of the judgment. As indicated, the decision on that appeal only related to her rights under the statutes. Technically, the mandate of the court should in form have *519limited such reversal to such particular part of the judgment; but it is manifest from the opinion and the status of ■the record at the time that the decision of this court was necessarily confined to such particular part of the judgment. The result is that that part of the judgment adjudging costs to the plaintiff against the executor as such, and payable out of the estate, was not before us nor considered on that appeal, and hence remained as though no such appeal had been'taken.

1. Error is now assigned because such costs are omitted from what is termed “an entirely new judgment,” and which may fairly be regarded as such in form. But such new judgment recites the first trial, the making and filing of the findings of fact and conclusions of law, the judgment entered thereon, the appeal by the widow, the reversal, and the mandate thereon, and then orders and adjudges as indicated. This is a case in equity; and, in harmony with the old practice in such cases, it would have been competent to add to the original judgment or decree; and, as that part of the original judgment between the plaintiff and the-estate remained unreversed, it would seem that nothing was left to the trial court but to modify the judgment as indicated. True, such new judgment does not in form purport to be such further or additional judgment, as it should have done, yet, in view of the status of the record, we think it must in substance be so regarded. Thus regarding it, the judgment of the plaintiff against the estate for costs remains as before.

2. Error is assigned because the court adjudged that the widow was entitled to recover, by reason of her dower, as damages for withholding her share of the rents and profits from August 18, 1882, to the entry of the final judgment, ■September 21, 1886, the sum of $269.92. On the trial it was found, and in the original judgment it was adjudged, that the annual rental value of the premises was $560, and *520that the plaintiff had received the rents since July 3, 1875, and had always paid the taxes, insurance, and repairs. It was also found and adjudged in said original judgment, in effect, that in any accounting for rents received by the plaintiff after August 18, 1882, he was entitled to have deducted from the gross receipts of said rents all sums paid for taxes, insurance, and reasonable repairs; but there was. no finding or determination as to the amount of such taxes, insurance, or repairs. Since there could be no final determination of the matters in controversy without first ascertaining the amount of such taxes, insurance, and repairs, it is manifest that the original judgment was not a final-judgment. This being so, the determination of such amounts was necessarily open for the trial court upon the filing of the remittitur on the former appeal. Accordingly the court properly took testimony as to such amounts. True, the court made no findings thereon; but, if the judgment is supported by the evidence, such want of findings is no ground for reversal. Wilkinson v. Wilkinson, 59 Wis. 560; White v. Magann, 65 Wis. 86; Pier v. Prouty, 67 Wis. 223. In support of the contention that the amount so allowed wás too large, it is claimed that the plaintiff was entitled to interest at eight per cent, on the $2,500 mortgage from November 19, 1877, to August 18, 1882, as well as since. But we do not think the plaintiff was entitled to such interest during the time he received such rents and profits without being held liable to account therefor,— especially as they were much more annually than such interest. With this view of the question suggested, and without going into details, we must hold that the evidence was sufficient to support the allowance to the widow of $269.92 as damages for withholding dower prior to the final judgment. That she was entitled to a money judgment for that amount there can be no question. The statutes expressly authorize such damages for such withholding. Secs. *2175, 2176, R. S.; *521Munger v. Perkins, 62 Wis. 499. Such right to recover damages is not limited to cases in which the husband died seized of the lands, but extends to the alienee of the husband, or one who has become vested of his title by operation of law. Hid. So the mere fact that the husband, prior to his marriage, conveyed to his father, in fraud of the dower rights of this widow, does not take the case out of the operation of the rule stated.

3. This brings us to the question whether it was error to adjudge the widow entitled to have her dower admeasured to her in this action by way of a money recovery, and to fix the amount thereof, in addition to the damages named, at $828.85. The amount cannot be claimed to be objectionable if there was any authority to so fix it. The subject of such authority has elicited much discussion and a contrariety of opinion in the past. We have no disposition to renew the old discussion. It is said by Mr. Story that, “ as dower is a strictly legal right, it might seem at first view that the proper remedy belonged to courts of common law. . . . But the result of the various decisions upon this subject is that courts of equity will now entertain a general concurrent jurisdiction with courts of law in the assignment of dower in all cases.” 1 Story’s Eq. Jur. § 624; Pom. Eq. Jur. §§ 185, 1382. This is especially true where, as in this state, the two jurisdictions are combined in the same court, and the statutes expressly authorize a plaintiff to “ unite in the same complaint several causes of action, whether they be such as were formerly denominated legal or equitable, or both” (sec. 2641, E. S.), and to counterclaim a similar cause' of action (secs. 2655, 2656). This seems to be the view of courts in other states having similar statutes. Van Name v. Van Name, 23 How. Pr. 247; Brown v. Brown, 31 How. Pr. 481; Townsend v. Townsend, 2 Sandf. 711; Starry v. Starry, 21 Iowa, 254; Thomas v. Thomas, 35 N. W. Rep. (Iowa), 693. The extent of such jurisdiction, and *522whether such right of the widow must be confined to a third of the net annual use of the property, or, in case it is converted into money, to such third of the annual income therefrom, or a definite amount in gross, seems to depend largely upon the policy of local statutes and the equitable rights of parties in each particular case. In this state there seems to be no statutory impediment to allowing such amouht in gross in a proper case. As already observed, the statutes expressly authorize the recovery of a money judgment for damages for withholding dower. So, in case of a forced sale of premises subject to dower in an action of partition, such right and interest is barred in the premises and transferred to the proceeds. Secs. 3102, 3119-3121, R. S. The same is true respecting any surplus on foreclosure sale of land, where the widow would otherwise be endowed. Secs. 2161, 2165; Hawley v. Bradford, 9 Paige, 200; Campbell v. Erving, 43 How. Pr. 258. So, where there is a dower right in lands of infants which have been sold by proceedings in court, the widow may have a gross sum in lieu of such dower. Sec. 3514, R. S. The same is true where lands subject to such dower right are sold for the payment of debts. Sec. 3885, R. S.

The facts in the record present a- case peculiarly justifying a broad exercise of equitable jurisdiction. The premises consist of an undivided one-half of a building or block. Manifest^, there can be no actual partition, or setting off a portion of the premises for the use of the widow. - The only way of making a partition, therefore, would be by a forced sale of the premises and an equitable distribution of the proceeds. The husband did not die seized of the land. Neither the mortgage nor the deed was given by him to the plaintiff during coverture. Both were made before marriage. The widow’s right of dower was not a right apparent at law upon the death of the husband. It was only established by an adjudication upon evidence aliunde *523the deed, showing that it was made on the eve of marriage and as a fraud upon her rights as such proposed wife. Having been thus established in equity at the suit of such fraudulent grantee to extinguish her right as a cloud upon the title, it would seem peculiarly fitting that a complete determination of the rights of all the parties should be made in the same action, unless forbidden by some settled rule of law. As observed, there seems to be no statutory impediment. On the contrary, it seems to be the general policy of the statutes cited, not only to allow a money judgment by way of damages for withholding dower, but, on the distribution of estates subject to dower, to allow, with her consent, a gross sum in lieu, of dower. The rules applicable to the trial court contemplate that whenever a party, as tenant in dower, is entitled to the interest or income of any sum, she may accept a gross sum in lieu of such annual interest or income for life, and that the same shall be estimated according to the then value of an annuity of six per cent., as shown by the annuity tables therein mentioned. Circuit Court Rule XXXII. That a widow entitled to dower may in equity have a gross sum in lieu of dower, where the property has been actually sold and converted into money, would seem to be elementary. 1 Washb. Real. Prop. marg. pp. 243-250, subd. 25-27; 3 Pom. Eq. Jur. §§ 1382,1383; 2-Scrib. Dower, ch. 24, pp. 653-697, and cases there cited, as well as those in briefs of counsel. The same would seem to be true where the property is held in trust, and sold by the trustee, who bids in the property for his own benefit, and the widow acquiesces in such purchase. Ibid. It is said, in effect, in these authorities, that in certain cases a gross sum may be accepted and allowed as compensation in lieu of dower, without any sale being made. In the case at bar the plaintiff controverted the defendant’s right of dower, and insisted that he had the absolute title to the premises by virtue of the deed given in *524fraud of her rights. This being so, he certainly stands in no more favorable position in equity than he would in respect to the fund had the premises been actually sold and converted into money. In other words, the plaintiff, having wrongfully withheld the widow’s dower, under the peculiar circumstances stated, is, as a participant in such fraud, es-topped from now disclaiming his acquisition of such absolute title, and responding in damages for the value of such dower in gross thus converted.

4. In equitable actions, costs may be allowed or not to any party, in the discretion of the court- and, when such discretion has. not been abused by the trial court, its judgment as to costs will not be disturbed. Portz v. Schantz, 70 Wis. 497. We cannot say there was any abuse in allowing costs to the widow. On the contrary, we think it was eminently just.

By the Court.— The judgment of the circuit court is affirmed. >