Pavelka v. Pavelka

166 Wis. 471 | Wis. | 1918

KeewiN, J.

As a result of divorce proceedings the defendant John E. Pavelka had conveyed an undivided half of the eighty acres in question to the plaintiff, his former wife. He then conveyed his remaining half to William S. Hatton, his brother-in-law, who instituted partition proceedings under which the eighty acres were sold as a unit to A. V. McDowell, defendant, wife of John E. Pavelka’s attorney, W. A. McDowell. A. V. McDowell immediately quitclaimed one forty to John E. Pavelka, who conveyed by warranty deed to one Fligal, a third party, within three days after sale.

The court below found that the premises sold for so small a price as to constitute a fraud upon tbe plaintiff, and ordered conveyance of the remaining forty to the plaintiff upon condition of her refunding to defendant what she had received from the proceeds of sale, and giving the defendant John E. Pavellea the alternative of paying compensation in money to equalize the result of the sale in keeping the forty, and held that McDowell had no interest in the premises as against the plaintiff.

It appears clearly from the findings and evidence that the amount bid at the sale in the partition suit was grossly inadequate, but it is insisted by appellants that the mere inadequacy of price bid at the sale was not sufficient to set aside the sale in the absence of fraud, and that in the instant case there was no fraud practiced on the plaintiff.

There is evidence that the property was worth between $1,600 and $2,000, and the court below found that it was worth at least $1,200 and was sold for $480.07. There are many circumstances in the case aside from the inadequacy of. price which indicate that the sale, as found by the court below, operated as a fraud upon the plaintiff, and we do not see that this court would be justified in setting aside such finding. John Paul L. Co. v. Neumeister, 106 Wis. 243, 82 N. W. 144, and cases cited.

Complaint is made by appellants that the court below was not warranted in finding, that the two forties were of equal value, and that the plaintiff was an ignorant woman of foreign extraction and unacquainted with her rights in the matter and had a right to expect that a reasonable sum' would be bid by her former husband and the other parties, if they bid in the property. We think this finding is supported by sufficient evidence.

The vital question upon this appeal is whether justice was done by the corrrt below in settling the rights of the parties as it did, and whether any prejudicial error was committed.

It is contended that the plaintiff, by accepting the amount of money received as tbe proceeds of the sale, viz. $160.17, paid into court for her benefit as her portion of proceeds of sale, waived the right of appeal and was, therefore, estopped from taking an appeal or questioning the judgment.

Some authorities are cited upon this proposition, but we do not regard them controlling. The mere fact that part of wliat plaintiff was entitled to was paid into court and received by her did not estop her from appealing and receiving what in fact she was entitled to over and above the amount she had received. Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935; Meaders v. Gray, 60 Miss. 400; Erwin v. Lowry, 7 How. (U. S.) 172; Tarleton v. Goldthwaite’s Heirs, 23 Ala. 346; Hornish v. Peck, 53 Iowa, 157, 1 N. W. 641, 4 N. W. 898; Mellen v. Mellen, 137 N. Y. 606, 33 N. E. 545.

Charles Eligal, to whom the north forty acres was sold after partition suit, was named as a defendant in this action, but was not served with process and did not appear.

The court is of opinion that the disposition made of the case in the court below was just and equitable, and we see no reason for disturbing it.

By the Court. — Judgment affirmed.