Beranek v. Beranek

• Citation: 89 N.W. 146,113 Wis. 272
• Parties: BERANEK v. BERANEK ET AL.
• Decision Date: 18 February 1902
• Court: United States State Supreme Court of Wisconsin

113 Wis. 272

89 N.W. 146

BERANEK

v.BERANEK ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Appeal from circuit court, La Crosse county; J. J. Fruit, Judge.

Action by Mary Beranek against John Beranek and others. From a judgment for plaintiff, defendant John Beranek appeals. Reversed.

On March 23, 1897, Frank Beranek, plaintiff's husband, took a lease of a vacant lot in the city of La Crosse from the defendant John Beranek, his father. The lease was in the usual form, for a term of five years, and the rent to be paid was the taxes on the property. Very soon thereafter said defendant borrowed $500, giving a mortgage on the property leased, which, with the sum of about $260 furnished by Frank, was used in building a house on the leased premises. About June of that year, Frank moved into the house with his family, and occupied it as a homestead. Soon after moving in, Frank was taken sick. He failed to pay the taxes and was without money. In the spring of 1899 he desired to go to Denver for his health. It was then agreed that his father should repay him the $260 he had advanced to build the house, and he thereupon executed a written surrender of his lease; reciting that he was unable to comply with its terms, and that it was made upon the consideration of a return to him of the sum above mentioned. The plaintiff did not sign the paper. He thereupon rented a house in another part of the city, and sent a team to remove his household goods thereto. The plaintiff refused to move. Thereafter the defendant John Beranek began an action of unlawful detainer against Frank, and obtained a judgment for the restitution of the premises, under which plaintiff was ousted from the premises in June, 1899. Frank rented a house on Eleventh street, and moved his family thereto. Soon thereafter he went to Denver, but, not being benefited, he returned, and died at La Crosse on October 23, 1899, from consumption. In July, 1900, the plaintiff brought this action of ejectment to recover possession of the premises, and claimed $100 damages. The evidence on the trial detailed the facts as hereinbefore set forth. A jury was waived, and the court made findings, among other things, that the lot in question was Frank Beranek's homestead at the time of his death, and that he had no other dwelling place or home; that the defendant Joseph Beranek was occupying the premises as the tenant of the other defendant; that the use of the premises was worth $7 per month; that the same descended to plaintiff; and that she was entitled to judgment for the possession and $112 damages. A judgment was duly entered that the plaintiff “do have and recover of the defendants * * * the possession of the premises described in the complaint,” and the sum of $112 damages, and costs. The judgment failed to determine the nature or extent of her title, and is for the sum of $12 more damages than was demanded in the complaint. Exceptions to the findings were duly filed. Defendants requested findings to the effect that Frank Beranek rented and prepared a new home for his family, but that plaintiff refused to move, and also covering other matters deemed material to their defense. The court refused so to find, and defendants duly excepted. The defendant John Beranek takes this appeal.Higbee & Burge, for appellant.

C. L. Hood, for respondent.

BARDEEN, J. (after stating the facts).

Under our statute (section 2983, Rev. St. 1898), there can be no doubt but that a homestead may be secured in premises held undera lease. It is also true that, in so far as leased property is susceptible of being conserved as a home, it is governed by the same rules that apply to homesteads based upon property held by more enduring titles. Wap. Homest. 113. Our law has wisely provided that no alienation by a married man of his homestead, exempt by law from execution, shall be valid or of any effect without the signature of the wife to the same. Section 2203. The attempt of the defendant to justify plaintiff's removal from the premises under the proceedings for unlawful detainer alone must therefore fail, because they were based upon a written surrender made by the husband without his wife's signature. The judgment in the unlawful detainer action is not preserved in the record, but we must presume that it followed the complaint, which was put in evidence. That document shows that the ground of defendants' suit was “that the term created by said lease expired, and by act and contract of the parties was terminated, on the 17th day of May, 1899.” This shows very clearly that defendant was seeking to enforce an attempt of the husband to alienate his homestead without his wife's signature. It is said that notice to quit was served, for failure to pay rent. Had the unlawful detainer proceedings been based upon that fact, no doubt the judgment would have been binding on plaintiff, and the homestead interest would have been terminated. Assuming, however, that the judgment was based upon the invalid surrender of the lease, it cannot be allowed to accomplish a purpose which the husband could not accomplish because of his disability under the statute.

Another reason urged why the judgment in this case is unwarranted is that the undisputed evidence shows that the husband abandoned his homestead. Such evidence shows that in the spring of 1899 the husband was ill with consumption. He had no money or property except the small amount he had invested in the house on the lot in question. He desired to try a change of climate. He agreed with his father to surrender the lease upon consideration that he be repaid the sum he had contributed to build the house. He rented a house in another part of the city, but the plaintiff refused to move or to allow the household goods to be taken thereto. The intention of the husband to secure a new home, and the renting of another house for that purpose, are beyond dispute. His right to change his domicile, and to surrender and abandon his former homestead by leaving the old one and securing a new one, has been recognized and admitted in this state. This he may do in utter defiance of his wife's wishes or desires, and here we strike a somewhat curious anomaly in the law. The statute says that a husband cannot sell or mortgage his homestead without his wife's signature. Speaking of the purpose and policy of the statute, this court said in the recent case of Cumps v. Kiyo, 104 Wis. 656, 80 N. W. 937: “The policy of the statute indicated is not to give the wife a mere personal right for her personal benefit, which she may...