Snodgrass v. Snodgrass

40 Kan. 494 | Kan. | 1889

The opinion of the court was delivered by

VALENTINE, J.:

The plaintiff and the defendant were husband and wife up to the time of the rendering of the judgment in this case, which was on August 1, 1887, at which time the court below granted a divorce to the plaintiff on the ground of extreme cruelty and gross neglect of duty on the part of the defendant, and at the same time made a division of the property. The plaintiff, not being satisfied with the division of the property, brings the case to this court for review ; and whether the division of the property was equitable ■or not as toward the plaintiff, is the only question now presented. There are no minor children to be taken care of by either party. It seems that on June 12, 1882, the plaintiff ■owned all the property owned by both or either. On that day he conveyed it to his wife, the real estate being worth about $6,900, and the personal property being worth about $790, total $7,690. The plaintiff at the time owed to various persons about $2,190, which his wife, the defendant, agreed to pay. Of this amount $800 was secured by a mortgage on the real estate, and another portion of the same, but how much is not shown, was secured by a chattel mortgage on the personal property. The real-estate mortgage had not yet been paid or satisfied, and at the time of the rendering of the judgment, it amounted, principal and interest, to about $1,000. Of the other debts, the defendant had paid about $916, leaving, as the court finds, of the other debts, $475 still due and unpaid, and for which the plaintiff is liable.

At the time of the rendering of this judgment, the real estate was worth about $6,900, and the personal property still remaining in the hands of the defendant was worth about $100, which still left in her hands, of the property conveyed to her by her husband, an amount worth about $7,000. If the mortgage on the real estate be deducted from this amount it would leave in her hands about $6,000 worth of the aforesaid property. And if the other debts of the husband still remaining due and unpaid should also be deducted it would leave in her hands of the property an amount worth about $5,525. Neither of the parties had any other property at that time. It would seem to us that out of the aforesaid property all the aforesaid debts should be paid, those not secured by the mortgage as well as those secured by the mortgage, and that after paying such debts the remaining property should be equitably divided between the parties; and this it would seem would give to the plaintiff a fair share of the property. Originally he owned all the property, the real estate being his homestead, and the defendant had none. She wrongfully obtained the title to all this property in herself, he executing a deed for the real estate and a bill of sale for the personal property direct to her, and it was for her fault that the divorce was granted. Soon after obtaining the title to all this property in herself, she drove her husband from the premises, an old man, houseless, homeless, moneyless, without property, and among strangers; treated him with extreme cruelty, and grossly neglected her duty as toward him. It would seem to us that, under the circumstances, she should not have more than one-half of the property; but the district court has rendered judgment otherwise, and as that court has had an opportunity of seeing the parties and the witnesses, and of hearing all the testimony orally, and has therefore had a better opportunity of knowing what would be exact justice between the parties than we have, we shall not order the judgment of that court to be modified to the extent above indicated; but still we think it should be modified to some extent. We should Divorce-judsment, modified. think that the judgment should be modified so -p ^ (jefen(jan(; js permitted to retain the aforementioned property or to have the benefit thereof, she should be required to pay all the aforementioned debts still due and unpaid; and if she cannot pay the same immediately, then that she be permitted to mortgage the real estate for an amount sufficient to pay the same, and we think the defendant should also be required to pay to the plaintiff semi-annually during his life-time, one-half of the net income of the property, taking into consideration the taxes, interest, etc., on the land. The amount to be paid would perhaps be, in accordance with the findings of the court below, about $50 every six months, and this part of the judgment of the court below might be permitted to remain. If this arrangement cannot be carried out, or if the plaintiff should fail at any time to pay the above debts, or the taxes on the land or interest, or to pay the plaintiff the amount due him, then the land should be sold, and after paying all the debts, taxes, interest, etc., then the proceeds should be equally divided between the parties.

This cause will be remanded, with the order that the judgment of the court below be modified in accordance with the views expressed in this opinion.

All the Justices concurring.