Charnley v. Charnley , 148 Wis. 416 ( 1912 )

Siebecker, J.

Tbe plaintiff appeals from those parts of' tbe judgment establishing tbe interest of each of tbe parties in tbe farm and mailing tbe final division and distribution of tbe real and personal property of tbe defendant. Tbe evidence set out in tbe foregoing statement of facts is without, dispute as to tbe amount each party contributed to tbe purchase of tbe real estate at Wauwatosa and as to tbe fact tbat. tbe wife contributed from earnings to tbe improvement of this property and of tbe farm in Sauk county, to which she held tbe exclusive title. Under tbe evidence we are persuaded tbat tbe sum of $900, which tbe court awarded ber as; and for ber interest in tbe Sauk county farm, is not a sufficient amount to restore to ber tbe just share she has in tbe farm. Tbe facts plainly establish tbat ber interest therein exceeds tbat amount. Since she has title to tbe whole thereof, the pertinent inquiry is, What part of this farm so held by ber did she derive from ber husband? It is clear tbat he-contributed tbe purchase price for one acre of tbe Wauwatosa-borne and tbat be contributed part of tbe means to make the improvements thereon. Tbe proceeds of tbe sale of tbe property were invested in tbe Sauk county farm, upon which tbe parties resided, and which they maintained and improved by their combined efforts and contributions. It appears tbat tbe defendant paid a mortgage on tbe farm, amounting to-$666, out of an inheritance. In view of tbe facts of tbe case it cannot be said tbat more than one half of tbe value of this-, farm, so held by tbe plaintiff, was derived from tbe defendant. Hence bis interest therein and tbe personalty, valued at $1,400, amount to about $3,100. Under tbe judgment of distribution of bis estate tbe court awarded him $2,500, to be-paid to him in instalments of $25 per month, with interest on the unpaid portion, and charged the wife’s entire estate with a lien to secure its payment. It is obvious that the plaintiff will be unable to negotiate a mortgage loan on the premises to pay ■defendant this sum. Nor is>it probable that she could borrow such a sum by mortgaging the personalty with the real ■estate. Should she succeed in doing so, in all probability she would be unable to pay the taxes, the interest on the loan, and the annual expense for upkeep. In such an event her, property, including her separate estate, would be absorbed to meet the obligation imposed by this judgment. Under the circumstances we cannot approve this division of the defendant’s estate as equitable between the parties. We are of the opinion that the trial court awarded the defendant too large an amount, that the defendant should receive no more than $1,500 in addition to the .payments plaintiff has actually made on the judgment to this date, February 20, 1912, and that the judgment should be modified accordingly. Laws of 1909, ch. 323; Laws of 1911, eh. 239. This will enable the plaintiff to obtain the amount to be. paid the defendant and thus make the final distribution of the defendant’s property as determined by the judgment of the court.

By the Court. — It is so ordered. Neither party is to recover costs on this appeal. The respondent is to pay the clerk’s fees in this court.