Bartle v. Bartle

• Decision Date: 20 June 1907
• Citation: 132 Wis. 392,112 N.W. 471
• Parties: BARTLE v. BARTLE.
• Court: Wisconsin Supreme Court

132 Wis. 392

112 N.W. 471

BARTLE

v.BARTLE.

Supreme Court of Wisconsin.

June 20, 1907.

Appeal from Circuit Court, Iowa County; Geo. Clementson, Judge.

Action by Mary Bartle against Sarah Bartle. Plaintiff appeals from a judgment for defendant. Affirmed.

This is an action to charge property in the hands of defendant which came to her through her deceased husband with the payment of his debts. The action was tried in the circuit court for Iowa county, and resulted in judgment for defendant establishing her right to her portion of the proceeds of sale of the property. The court found substantially that defendant is the widow of George Bartle, deceased, who died intestate May 16, 1902; that in April, 1900, said Bartle and his brother, J. L. Bartle, were engaged in building a hotel known as “Hotel Grand,” situated in Dodgeville, Iowa county, Wis., on real estate which they then owned, and on April 28, 1900, they borrowed $1,000 from plaintiff to be used, and which was used in the construction of the Hotel Grand and gave therefor their promissory note; that for three years after March, 1902, the defendant paid one-half of the interest on said note out of the rents and profits from said hotel property; that after the death of George Bartle an administrator was appointed; that plaintiff's claims, as well as other claims, were allowed against said estate, which claims remain unpaid, except the undertaker's claims; that the administrator of George Bartle's estate has received no assets belonging to the estate, and that the personal assets of the estate are not sufficient to pay the expense of administration and debts of prior class to that of plaintiff and other claims allowed; that on the 26th day of March, 1902, George Bartle, deceased, deeded to defendant, in consideration of $1 and natural love and affection, the hotel property, which deed was witnessed, acknowledged, and recorded; that at the time the construction of the hotel was commenced George Bartle and his wife, the defendant, lived on a part of said hotel property, which was then their homestead, they owning no other homestead at that time; that shortly prior to the commencement of the construction of said hotel George Bartle and defendant had a homestead which they sold for $1,300, which sum was used in building the Hotel Grand; that for a time, while the Hotel Grand was being constructed, George Bartle and defendant lived in a rented house; that in September, 1900, George Bartle and defendant moved into the third story of said Hotel Grand, and occupied said story as their homestead with the consent of J. L. Bartle, until July 1, 1901, they having no other homestead at the time, the lower part of the hotel being otherwise occupied; that on July 1, 1901, said George Bartle and defendant moved to the second story of said Hotel Grand and kept hotel therein, and occupied said premises as their homestead, with the consent of said J. L. Bartle, until February 1, 1902; that on February 1, 1902, said George Bartle and defendant moved out of said hotel on account of ill health of George Bartle; that said hotel property on February 1, 1902, and March 26, 1902, was the homestead of George Bartle and defendant, with the implied consent of J. L. Bartle; that when George Bartle and defendant left said hotel, February 1, 1902, they moved into a rented house and continued to live there until the death of George Bartle, not having acquired any other homestead; that, when George Bartle and defendant left said hotel, they considered and claimed it to be their homestead, and left it because of ill health, and intended to return and occupy the same as a homestead when George Bartle's health would permit; that, when George Bartle and defendant left said hotel, they reserved two rooms for storage purposes and kept the key, and stored in said rooms articles of household furniture, pictures, and their marriage certificate; that there was a mortgage on said hotel property, and the interest of George Bartle was liable for half of said mortgage debt; that the interest of said George Bartle in said hotel property at the time he transferred it to defendant was about $2,800; that on March 1, 1905, defendant sold the undivided half of said hotel property, being the interest conveyed to her by said George Bartle, and received about $2,800 net proceeds therefor. The evidence shows defendant intends to invest the proceeds received from sale of the hotel property in a homestead. Plaintiff appealed from that part of the judgment which provided that plaintiff take nothing by her action so far as her complaint seeks to subject to the claim of creditors of George Bartle, deceased, any part of the moneys received by the defendant from the sale of the Hotel Grand property, and confirming the defendant in her right to the proceeds of the sale of said premises.J. P. Smelker, for appellant.

Spensley & McIlhon and T. M. Priestley, for respondent.

KERWIN, J. (after stating the facts).

The only questions for determination upon this appeal are: (1) Whether George Bartle, deceased, occupied the Hotel Grand as his homestead. (2) If he did, did he ever forfeit his homestead rights? (3) Has the plaintiff a purchase-money lien on defendant's portion of the proceeds of the hotel property, or is she entitled to subject such proceeds to the claims of creditors?

1. Counsel for appellant attacks the law respecting homestead rights in real estate held by tenants in common as it stood before it was amended by chapter 269, p. 365, Laws 1901, and contends that chapter 299, p. 408, Laws 1901, does not apply, because it went into effect after the plaintiff's debt was contracted. West v. Ward et al., 26 Wis. 579, is cited to our attention upon this point. When this case was decided, there was no statute allowing homestead rights in lands held in common, and this court, in referring to the fact that the statute made no provision in such case, said, at page 581: “The law might very reasonably provide that in such case the undivided interest should be exempt. So it might also very reasonably provide that a homestead might be claimed in any undivided interest, establishing at the same time some mode by which it should be set apart and ascertained. Perhaps such provisionswould be no more than the spirit of the constitutional provision upon this subject fairly requires. But the Legislature has done neither, and the courts cannot supply the defect, if it is one. The law, as made, provides only for a homestead to be set apart by metes and bounds out of that which is owned and occupied in severalty.” After this decision the Legislature sought to remedy the defect pointed out in West v. Ward et al., and we find in section 2983, Rev. St. 1878, the provision that “such exemption shall extend to land, not exceeding, altogether, the amount aforesaid, owned by a husband and wife jointly, or in common, and to the interest therein of a tenant in common, or two or more tenants in common having a homestead thereon, with the consent expressed or implied, of the cotenants and to any estate less than a fee held by any person by lease or otherwise.” This provision was continued in section 2983, St. 1898, and substantially in chapter 269, p. 365, Laws 1901; the latter amendment limiting the value of the homestead to $5,000. Before this amendment the co-tenant was entitled to the undivided interest for a homestead with the consent of his co-tenant, regardless of its value, and in case of sale the proceeds were exempt. There can be no doubt, therefore, that the law as it stood before 1901 as effectually protected a co-tenant's homestead right as it does since the passage of chapter 269, p. 365, Laws 1901, so we see no force in the position of counsel that the amendment of 1901 went into effect after the debt of plaintiff had been contracted. The law as it stood in section 2983, St. 1898, prior to 1901, was ample to protect a co-tenant when the occupation was with the consent express or implied of the co-tenant. West v. Ward et al., 26 Wis. 579;Phelps v. Rooney et al., 9 Wis. 70, 76 Am. Dec. 244;Upman v. Second W. B. et al., 15 Wis. 449;Harriman et al. v. Queen Ins. Co., 49 Wis. 71, 5 N. W. 12;Binzel v. Grogan, 67 Wis. 147, 29 N. W. 895;Palmer v. Hawes, 80 Wis. 474, 50 N. W. 341; 21 Cyc. 458. Moreover, in the instant case the homestead interest is of less value than $5,000; hence comes within chapter 269, p. 365, Laws 1901.

But it is insisted that the findings to the effect that George Bartle had a homestead in the hotel are not supported by the evidence. It is too well settled to admit of discussion or citation of authorities that this court cannot disturb the findings below unless against the clear preponderance of the evidence. Treseder v. Burgor, 130 Wis. 201, 109 N. W. 957;Philip Meyer Co. v. Sheboygan C. Co., 102 Wis. 535, 78 N. W. 1119;Crawford v. Christian et al., 102 Wis. 51, 78 N. W. 406;Guetzkow B. Co. v. Andrews & Co., 92 Wis. 214, 66 N. W. 119, 52 L. R. A. 209, 53 Am. St. Rep. 909. It is insisted that the evidence is conclusive that the hotel was built to rent. But the acts and declarations of George Bartle do not support this contention. As the court below found, he occupied the hotel as his dwelling and left it because of ill health, that at the time he so occupied it he had no other homestead, and had no other up to the time of his death. There is evidence that he sold the homestead he owned and put the proceeds into the hotel building; that he intended to keep the hotel as his homestead, and return to and reoccupy it as...