Frackelton v. Frackelton

The following opinion was filed July 3, 1899: ’Winslow, J. The principal question arising upon the appeal is upon that part of the judgment awarding $2,500 to the defendant and making it a lien upon the homestead. Conceding, for the moment, the power of the court to place a lien upon the homestead for the benefit of the husband, we cannot regard this part of the judgment as justifiable, viewed merely from a business point of view. [677] The plaintiff is no longer young; she is not in strong health; she has a small business, depending entirely upon, her own efforts; and she is burdened with the support of a daughter eleven years of age. The homestead is necessarily unproductive; is burdened with mortgages to the extent of $10,000 upon a total valuation of $15,000; is subject to a large annual tax charge, as well as the annual interest charge. It is entirely certain that the plaintiff would be unable to negotiate any further mortgages to pay off the $2,500 lien. Under these circumstances, it requires no very extensive business experience to appreciate that the imposition of this additional lien upon the property can mean but one .thing, namely, the enforced sale of the property to pay the various liens, and the' almost certain disappearance of any surplus. Liens amounting to more than $12,000 upon a $15,000 unproductive homestead will almost inevitably exhaust the entire property. But we do not think the court had power to divide the homestead or place a lien upon it. The sole power to do so comes from the statute (Stats. 1898, sec. 2364), which authorizes the court to divide and distribute “ so much of the estate of the wife as shall have been derived from the husband.” 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 [678] property, 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, we are forced to the conclusion that this homestead was not property derived from the husband. So, the judgment providing for a lien upon the homestead in favor of the husband cannot be sustained, and the judgment requiring the wife to pay the husband $2,500 falls with the lien, because this cannot be sustained upon any theory, except upon the theory of a division of the wife’s property derived from the husband. We find no difficulty in sustaining those parts of the judgment awarding the defendant certain pictures and personal effects in the homestead. The evidence tends to show that he contributed toward the purchase of the pictures; at least, there is no such clear evidence to the contrary that we should be warranted in reversing the findings. Nor do we think that the court abused its discretion with regard to costs. By the Court. — ■ Those portions of the judgment directing the payment of $2,500 by the plaintiff to the defendant, and the establishment and enforcement of a lien therefor upon the homestead, are reversed, with costs, and the balance of the judgment is affirmed, without costs, and the action is remanded with directions to modify the judgment in accordance with this opinion. A motion for a rehearing was denied September 26,1899.