Scheiner v. Arnold, 142 Wis. 564

Scheiner v. Arnold

142 Wis. 564 | Wis. | 1910

KeRwttt, J.

Two grounds of demurrer are stated: (1) Want of facts sufficient to constitute a cause of action; and (2) that the alleged counterclaim is not pleadable as a counterclaim. Referring first to the latter ground, the majority of the members of the court are of opinion that if sufficient facts were stated showing that the defendant John' G. Arnold was entitled to relief by virtue of a claim as tenant in common, such counterclaim could be pleaded in the action. Ward v. Ward’s Heirs, 40 W. Va. 611, 21 S. E. 746, 29 L. R. A. 456, and note. But the court is of opinion that the *569demurrer was properly sustained for want of facts sufficient to constitute a cause of action. As will be seen from an examination of tbe counterclaim set up in tbe statement of facts, it is based upon a claim made by tbe defendant John C. Arnold to tbe effect tbat during tbe time tbat be and Agnes Arnold were husband and wife they lived upon tbe premises and conducted a business tbereon, and tbat be made certain improvements on tbe real estate, tbe title to wbicb was in bis wife, and tbat said defendant was under tbe impression tbat be and bis wife were joint owners of tbe property, and tbat be paid tbe taxes and paid off a mortgage on tbe property, and tbat sucb expenditures were made during tbe life of said Agnes, bis wife, and tbat tbe premises were greatly enhanced by said defendant John 0. Arnold in excess of tbe amounts paid and expended tbereon by him. Tbe claim of said defendant, therefore, is based upon tbe fact tbat be paid off a lien and expended other moneys for tbe benefit of bis wife’s property during her life and supposed be was a joint owner. ‘These alleged facts constitute no claim, legal or equitable, against tbe real estate in question. Money expended by a husband upon bis wife’s real estate is presumed to be expended for her benefit. 21 Cyc. 1426; 14 Am. & Eng. Ency. of Law (1st ed.) 579, 625; Selover v. Selover, 62 N. J. Eq. 761, 48 Atl. 522; Wright v. Hood, 49 Wis. 235, 5 N. W. 488; Clark v. North, 131 Wis. 599, 111 N. W. 681. Nor does tbe alleged fact tbat said defendant was under tbe impression tbat be was a joint owner raise any right, legal or equitable, in bis favor and against the property of bis former wife. So, too, tbe mere fact tbat be paid off a mortgage on tbe property creates no right in bis favor in tbe real estate. No facts are pleaded in any way tending to show tbat by agreement or otherwise tbe said defendant was to be reimbursed for any moneys expended; nor are any facts alleged tending to show tbat he was to be subrogated to tbe rights of tbe mortgagee under tbe mortgage wbicb it is alleged be paid.

Many eases are cited by appellant involving tbe rights of *570parties in partition suits, but such cases are not applicable here, because during the life of Agnes Arnold said defendant had no interest, legal or equitable, in her property under the allegations of the counterclaim; therefore the counterclaim states no cause of action. It follows that the order sustaining the demurrer must be affirmed.

By the Court. — It is so ordered.