167 Wis. 255 | Wis. | 1918
It is argued by counsel for appellant tbat there is no authority under tbe law of this state in a divorce action to charge tbe separate estate of tbe wife, not derived mediately or immediately from tbe husband, with a lien in favor of the husband, or vest tbe husband with the title to any portion thereof. This contention as stated may be conceded.
Tbe inquiry here is whether tbe property was derived mediately or immediately from tbe husband. Tbe question
Sec. 2372, Stats., provides: “No judgment . . . shall in any way affect the right of a wife to the possession and control of hér separate property, . . .■ except as provided in this chapter; and nothing contained in this chapter shall authorize the court to divest any party of his title in any real estate further than is expressly provided herein.”
It is conceded that there was evidence sufficient to justify the judgment of divorce, and that the only question here is as to the division of property. The subject of divorce and distribution of property in divorce proceedings is regulated by statute in this state, and the right of distribution in this case must be found in the statutes. Bacon v. Bacon, 43 Wis. 197; Brenger v. Brenger, 142 Wis. 26, 125 N. W. 109; Martin v. Martin, 112 Wis. 314, 87 N. W. 232, 88 N. W. 215.
It is argued by counsel for appellant that the land to which the plaintiff had title at the time of divorce was not derived either mediately or immediately from the defendant. It is true that proceeds of property owned by plaintiff and aggregating a considerable amount, as shown by the findings and the evidence, went into the original purchase of this land. But it is also true that the estate of plaintiff was, through the money and labor of the defendant, largely enhanced in value, and the question arises whether under the statutes such property so obtained by the wife can be said to be “derived from the husband.”
It is contended that the money and labor advanced, furnished, and contributed by defendant cannot be considered property derived from the husband, and Martin v. Remington, 100 Wis. 540, 76 N. W. 614; Frackelton v. Frackelton, 103 Wis. 673, 79 N. W. 750, and other cases are cited in
This may be conceded, but it does not reach the situation here. The property may be the property of the wife and yet be derived from the husband so as to-bring it within the operation of the statute. The estate which may be derived from the husband clearly includes property the title to which is in the wife. Martin v. Remington, supra, does not fall within the provisions of the statute at all. It was not a case of division of property between husband and wife in a divorce proceeding. Nor was it a case where the wife derived property from her husband. On the contrary, it appears that the money put into the property was the separate estate of the wife and the title taken in the name of the husband. The court held that a trust resulted in favor of the wife, hence the property, being the separate estate of the wife, could not be reached- by the husband’s creditors. A careful examination of the case will show it has no bearing upon the ease at bar.
Frackelton v. Frackelton, supra, is strongly relied upon by appellant. The case is clearly not in point, as a quotation from the opinion will show. The court said:
“We do not regard this homestead as having been derived, mediately or immediately, from the husband. The evidence shows that he never had title, legal or equitable. It is true that the title was in the husband’s father, and that while in that condition the husband built a house upon it, but this fact alone gave him no title nor interest in it, and the evidence fails to show any binding agreement of any kind by which the father even agreed that the husband should have any interest. When the father conveyed the property to the wife he conveyed his own property, and thus there is no way in which it can be said that the title came from the husband. Furthermore, the evidence conclusively shows that the wife has paid from her own earnings in taxes upon the property,*262 and in interest upon- the first mortgages, more than the cost of the house. Within the rule laid down in Gallagher v. Gallagher, 89 Wis. 461, 61 N. W. 1104, we are forced to the conclusion that this homestead was not property derived from the husband.”
In Houghton v. Milburn, 54 Wis. 554, 11 N. W. 517, 12 N. W. 23, it was held that where a sum of money was paid to a husband and wife, in consideration of which they covenanted to support and maintain one X. during the remainder of her natural life, the wife’s interest in the sum so paid is her separate estate and she is liable upon the covenant as well as her husband.
In Krouskop v. Shontz, 51 Wis. 204, 8 N. W. 241, the husband and wife, engaged in business of carrying on a farm belonging to the wife, purchased goods for the use of themselves and family on credit of the separate estate of the wife, and it was held that the wife and husband became liable for such .goods in an action at law, and that the rights, powers,' and remedies given to married women by statute included legal power to do such acts, make contracts, etc.
In Dayton v. Walsh, 47 Wis. 113, 2 N. W. 65, where a married woman bought a farm from a stranger on credit, giving her notes for the purchase price secured by mortgage on the property, and her husband lived with her on the farm, carried on the business in her name and as her agent without any agreement for compensation for his services, the transaction being in good faith, it was held that the crops raised upon the farm belonged to the wife and were not subject to sale for the husband’s debts.
In Feller v. Alden, 23 Wis. 301, the wife owned land as her separate estate, and cultivated the same by means of the labor of her husband and minor children, and it was held that the legal title to the products was in the wife and could not be taken under execution against the husband. It is said, however, in that case that whether a court, in a proper proceeding in equity, would not apportion the proceeds with
Scheiner v. Arnold, 142 Wis. 564, 126 N. W. 17, is relied upon. That was an- action for partition, brought after tbe wife’s death, hence tbe divorce statute now under consideration bad no application. There it was properly held that money expended by tbe busband- upon tbe wife’s property in making permanent improvements which enhanced tbe value of tbe land, and payment of an incumbrance, gave tbe busband no claim in a partition suit after tbe wife’s death. Tbe contributions made by tbe busband to tbe wife’s separate estate became her separate estate, but nevertheless was “derived from her busband.”
Tbe theory of our divorce statutes is to provide for an equitable division of tbe property of tbe parties, not only tbe. property of tbe busband, but such property of tbe wife as she shall have derived either “mediately or immediately” from tbe busband. Frackelton v. Frackelton, 103 Wis. 673, 79 N. W. 750; Gauger v. Gauger, 157 Wis. 630, 147 N. W. 1075.
Tbe fact that tbe advances made by tbe busband in money and labor, and which largely added to tbe value of tbe wife’s separate estate, became her separate property does not save it from tbe operation of tbe statute. Tbe aim of tbe statute is to secure an equitable division of property, and in accomplishing this purpose tbe estate of tbe wife derived from tbe busband is subject to division as well as tbe property of tbe busband. Gauger v. Gauger, supra. Tbe statute is broad and covers property of every kind and description. It is not confined to specific property, tbe title to which has been transferred to tbe wife, but covers all estate “derived” from tbe busband. Money and labor put into tbe wife’s property
It is insisted by appellant that the agreement of February 12, 1916, referred to in the statement of the case, was obtained through duress and was against public policy and void. The court below held that this agreement was valid, but that, independent of the agreement, the provisions of it relating to the property rights of the parties were a just and equitable division of the property of the parties.
Considerable evidence was taken in the case relating to the separate estate of the plaintiff and the property derived by her from her husband, and the court found and concluded that in case it should be determined upon appeal that the agreement as to division of property is not valid, instead of said agreement constituting a division of the property, as a complete division of property of the parties the plaintiff should pay to the defendant the sum of $2,766.66 as his lhare of the property, and that all right, title, and interest of the property be awarded the plaintiff, subject to such payment.
Agreements similar to the one set out in the statement of the case are not favored, and the court is of opinion that said agreement is void. The court, therefore, rests its decision upon the finding, supported by the evidence, that the distribution of property made in this case, based upon the evidence given, independent of the alleged agreement, was a reasonable and just division of property between the parties and should be sustained.
The following part of the judgment is also complained of:
“It is further ordered and adjudged that in case it should be determined upon appeal from this court that the said agreement, as to the division of the property of the parties to this action, is not valid, that instead of said agreement constituting a division of the property, then as a complete division of the property of the parties to this action the plaintiff*265 shall pay to the defendant the sum of $2,766.66 as his share of the property of the parties to this action; that all right, title, and interest to the property of the parties, real and personal, be awarded to the plaintiff, subject to such payment.”
The contention under this head is that the court had no authority to direct the wife to pay a sum of money to the defendant and make payment thereof her personal liability, and Gallagher v. Gallagher, 89 Wis. 461, 61 N. W. 1104, is relied upon. But in the Gallagher Case the court directed the issuance of execution against the wife in case of failure to pay the amount ordered paid, and this court held it had no power to do so. In the instant case all the property is conveyed to the wife, subject to the payment of the amount found on division of property to belong to the defendant, and no personal liability is adjudged against the plaintiff. We therefore see no objection to the form of the judgment.
We are of opinion upon the evidence and record before us that the division of property was fair, equitable, and just, therefore that the judgment should be affirmed.
By the Court. — Judgment affirmed.
