Duda v. Beben

• Decision Date: 29 March 1948
• Citation: 31 N.W.2d 603,252 Wis. 295
• Parties: DUDA v. BEBEN.
• Court: Wisconsin Supreme Court

252 Wis. 295

31 N.W.2d 603

DUDA

v.BEBEN.

Supreme Court of Wisconsin.

March 29, 1948.

Appeal from judgment of the Circuit Court for Marinette County; Arold F. Murphy, Judge.

Affirmed.

This action was commenced in May 1947 by John Duda, Jr., plaintiff, against George Beben, defendant, to compel the defendant to convey certain premises to the plaintiff pursuant to a memorandum of sale signed by the parties. There was a trial, the court found in favor of the plaintiff, judgment was entered accordingly on September 6, 1947, from which the defendant appeals. The facts will be stated in the opinion.

L. M. Nelson, of Marinette, and Lehner & Lehner, Adolph P. Lehner, and Howard N. Lehner, all of Oconto Falls, for appellant.

Allen C. Wittkopf, of Florence, and Irving W. Smith, of Niagara, for respondent.

ROSENBERRY, Chief Justice.

The principal contention of the defendant herein is that he, being a married man and the contract between the defendant and the plaintiff not having been signed by his wife, the contract is totally void. The conclusion which we have reached on this branch of the case makes it unnecessary to consider subsidiary questions raised on the appeal.

While it is stated, not enough consideration is given in briefs of counsel to the fact that the wife of the defendant is a non-resident alien living in Poland, who has never been within the bounderies of the United States. This fact appears to be controlling.

Defendant's argument is based upon a provision of sec. 235.01, Wis.Stats., which is: ‘But no mortgage or other alienation by a married man of his homestead, exempt by law from execution, or any interest therein, legal or equitable, present or future, by deed or otherwise, shall be valid without his wife's consent, evidenced by her act of joining in the same deed, mortgage or other conveyance, or by her act of executing a separate deed, mortgage or conveyance of the same nature as her husband's, except a conveyance from husband to wife.’ The defendant cites cases which hold that this provision creates a disability upon the husband to alienate the homestead during the life of the wife without her consent and that a conveyance or contract to convey in which the wife does not join is void in toto. Town v. Gensch, 1899, 101 Wis. 445, 76 N.W. 1096,77 N.W. 893,Rosenthal v. Pleck, 1918, 166 Wis. 598, 166 N.W. 445,Eaton Center Co-op. Cheese Co. v. Kalkofen, 1932, 209 Wis. 170, 244 N.W. 620, and other cases. The defendant further argues that the provisions of sec. 235.01, already quoted, inures to the wife. That is a sound proposition if the statute in question is applicable to the nonresident wife of the defendant.

Only residents of the state are entitled to the benefit of the homestead exemption created by its laws, whether these laws expressly limit it to residents or not. Ludwig v. Ludwig, 1932, 170 Wis. 41, 172 N.W. 726. For a citation of many authorities to the same effect see 29 C.J. page 792, note 58, 40 C.J.S., Homesteads, § 18.

In the case of Engen v. Union State Bank, 121 Neb. 257, 236 N.W. 741, 744, it was held: ‘The homestead law was enacted for the benefit of resident citizens and resident aliens and, in furthermore of the public welfare, nonresident aliens not being within its terms.’ And because the wife had never been a resident of Nebraska and had always remained in the land of her birth, Norway, the court said: ‘The place was never her homestead, nor the homestead of her husband and herself, within the meaning, of the homestead law, and she was not, therefore, a necessary party to the deeds. The statutory provision requiring the conveyance of a homestead to be executed by both husband and wife applies to a homestead in which both have a homestead interest, and was not intended by the legislature to apply to an instance like the present, where the wife was always a nonresident alien without any intention of ever making the homestead her dwelling-place or home and who was never in this country.’ See also Cunningham v. Marshall, 94 Neb. 302, 143 N.W. 197;...