Jones v. Jones

• Decision Date: 17 April 1888
• Citation: 71 Wis. 513,38 N.W. 88
• Parties: JONES v. JONES, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

71 Wis. 513

38 N.W. 88

JONES

v.JONES, IMPLEADED, ETC.¹

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Jefferson county.

May 14, 1874, the plaintiff, Richard Jones, became the owner of the undivided half of the premises described, except the east six inches, by deed from Peter Bertholf and wife to said Richard Jones and Thomas D. Evans, reciting a consideration of $3,800, and the same was duly recorded. May 14, 1874, Richard Jones and Thomas D. Evans gave back to Bertholf a mortgage on all of the premises conveyed by that deed, of $3,000, and the same was recorded. August 25, 1874, the Bank of Watertown conveyed to Jones and Evans said six inches, and the same was recorded. July 3, 1875, Richard Jones and wife conveyed to Thomas C. Jones the said undivided one-half of all said premises, except said six inches, in consideration of natural love and affection, and by way of advancement, subject to an unpaid balance of said mortgage of $1,500, of which, with the interest thereon from May 14, 1875, the said Thomas C. Jones thereby assumed and agreed to pay and satisfy, and subject to all leases of the store and the rooms in the building thereon already made; and the one-half of the rents reserved in said leases was thereby assigned to Thomas C. Jones. That said deed was not delivered, but was retained by said Richard, with the understanding that he should continue in possession notwithstanding such deed. That November 13, 1877, the said Thomas C. Jones obtained the said deed, and had the same recorded. November 19, 1877, Richard Jones and wife deeded the six inches to Thomas C. Jones, and the same was recorded December 3, 1877. November 19, 1877, Thomas C. Jones, then unmarried, gave to Richard Jones a mortgage back on all the premises so conveyed to him, conditioned for the payment of $2,500 within 10 years from date, with interest thereon annually at 8 per cent. according to a note described, with the usual covenants to pay taxes, etc., which mortgage was recorded December 3, 1877. January 24, 1880, the Bertholf mortgage was satisfied of record. March 13, 1880, in the forenoon, Thomas C. Jones, still unmarried, by warranty deed conveyed all of said lands back to Richard Jones, and delivered the same to him; but it was lost and never recorded. March 13, 1880, in the evening, and after the delivery of said last-named deed, Thomas C. Jones was married to the defendant Amanda L. Jones. May 3, 1881, Thomas C. Jones died testate, leaving no children, but leaving his said wife, Amanda L. Jones, him surviving. July 19, 1881, said will was admitted to probate, and Price Lewis was appointed executor thereof, and thereby the said Thomas C. gave one-third of all his property to said Amanda L. in lieu of dower, and the other two-thirds to his father, Richard Jones. April 20, 1882, the said Amanda L. Jones renounced the will, and elected to take under the statutes. Claims to the amount of $7,393.71 were allowed against the estate of Thomas C. Jones; and the allowance to the widow, and expenses incident to allowing said claims, was about $1,000. That the estate, exclusive of exemptions and household furniture turned over to the widow, did not exceed in value $3,000. No part of the Bertholf mortgage was ever paid by Thomas C., but was wholly paid by Richard Jones before it was so satisfied. Thomas C. Jones never paid any of the principal or interest on the $2,500 mortgage. The value of the premises was $6,000, and the annual rental value $560, and the taxes, insurance, and repairs were paid by Richard Jones ever since July 3, 1875. The facts above stated were, in effect, found before the first appeal. On the appeal from the original judgment, this court, among other things, in effect, held that the deed from Thomas C. Jones to Richard Jones was made in fraud of the said Amanda L. Jones' right of dower in said premises, and that she was entitled to such dower therein, notwithstanding said deed, subject only to said $2,500, but free and discharged of the Bertholf mortgage; that the said Amanda L. Jones was entitled to one-third of the rents and profits of said premises, deducting taxes, insurance, and reasonable cost of necessary repairs, from the time of her answer in this case, August 18, 1882. 64 Wis. 311, 312, 25 N. W. Rep. 218. That judgment was reversed, and the cause was remanded, with direction to render judgment in accordance with the opinion. Id. Upon the remittitur being filed, both parties moved for judgment, and thereupon the trial court ordered proofs to be taken of the rents and profits, and of taxes, insurance, and reasonable costs of necessary repairs, and the same were taken accordingly; the evidence taken showing the net rental value of the property to be $1,327.95. Thereupon, and on March 29, 1887, and without any new findings of fact, the court caused judgment to be entered as of September 21, 1886, to the effect that said last deed of March 13, 1880, from Thomas C. Jones to Richard Jones be, and the same was thereby, established as a valid conveyance of the premises in fee-simple, subject, however, to the right of dower of said Amanda L. Jones; that said Amanda L. was entitled to one-third of the rents and profits of said premises, after deducting taxes, insurance, and repairs, from August 18, 1882, to the date of such judgment; that the said Amanda L. have and recover from the plaintiff $269.92 as and for said one-third of said rents and profits from August 18, 1882, to September 21, 1886, the same being her damages for the withholding of her said dower; that the said Amanda L. was entitled to dower in said premises, subject only to the payment of said $2,500 mortgage, and was entitled to have the same admeasured and assigned to her in this action by way of a money recovery; that said Amanda L. do have and recover from the plaintiff the further sum of $828.85 as and for her said dower in said premises, which, together with said $269.92, made the sum of $1,098.77 as her damages herein; that said Amanda L. also recover from the plaintiff $258.53 for her costs in this action, making her aggregate recovery $1,357.30; that the same be a lien upon said premises until fully paid; that she have execution to enforce the payment thereof; that upon such payment she be forever barred of any and all right or interest in the said premises, and every part thereof; and that the executor of the will of said Thomas C. Jones be forever barred of all right and claim of whatever nature in or to the premises, and every part thereof. From that part of said judgment favorable to the said Amanda L. Jones, and unfavorable to the plaintiff, he brings this appeal.I. W. & G. W. Bird, for appellant.

The original judgment should have been changed only in the particular's indicated by the modified opinion. Rev. St. Wis. § 3071. In computing dower subject to a mortgage, from one-third the net rents one-third of the interest due on the mortgage should be deducted. Russell v. Austin, 1 Paige, 192.The widow's dower is the use, during her natural life, of one-third of the premises. Rev. St. Wis. § 2159. Either party objecting, a gross sum should not be allowed. Herbert v. Wren, 7 Cranch, 370;Beavers v. Smith, 11 Ala. 20;Johnson v. Elliott, 12 Ala. 112;Francis v. Garrard, 18 Ala. 794;Lewis v. James, 8 Humph. 537. In the elementary works it is laid down that a gross sum is allowed in some states, and in others not. 1 Washb. Real Prop. marg. p. 249 par. 27; 2 Scrib. Dower, 160, 612, 613. Rev. St. Wis. c. 166, providing for the assignment of dower, practically forbids such a judgment. A gross sum should not be allowed, because an attorney's lien having been filed on the widow's interest shows champerty, and for that reason her defense should have been dismissed. Barker v. Barker, 14 Wis. 142;Allard v. Lamirande, 29 Wis. 502;Greenman v. Cohee, 61 Ind. 201;Webb v. Armstrong, 5 Humph. 379. Costs should not be awarded to the widow. She claimed more than she was entitled to, and more than the court awarded her. The main questions were in plaintiff's favor. The original judgment for costs should not be annulled.

Harlow Pease, for respondent.

This is an action for the assignment of dower within the meaning of the statute. Zaegel v. Kuster, 51 Wis. 31-40, 7 N. W. Rep. 781. Bringing action is sufficient demand of dower. Cowan v. Lindsay, 30 Wis. 586. The rents, as fast as due, should have been applied by the mortgagee to the payment of the mortgage. Lupton v. Almy, 4 Wis. 242, 247, 248;Ackerman v. Lyman, 20 Wis. *455-*458;Green v. Wescott, 13 Wis. *606;Posten v. Miller, 60 Wis. 494, 19 N. W. Rep. 540;Wood v. Felton, 9 Pick. 171-175;Bell v. Mayor, 10 Paige, 49. It is wholly immaterial for what purpose a mortgagee may enter, if, in point of fact, he is in possession; Gibson v. Crehore, 5 Pick. 145.“Equity regards that as done which ought to be done.” 1 Pom. Eq. Jur. §§ 363, 364, note 3. When land is aliened by the husband, the widow's dower is to be taken and estimated according to the value of the land at the time of the alienation; and when he has first given a mortgage, and afterwards given a deed to the mortgagee of the equity of redemption, without the wife's signature, the deed, and not the mortgage, is the act of alienation. Hale v. James, 6 Johns. Ch. 258;Van Gelder v. Post, 2 Edw. Ch. 577-579;Walker v. Schuyler, 10 Wend. 480. The widow may take a gross sum in lieu of dower, or rely on annual payments during life. 2 Scrib. Dower, c. 26, pp. 653-697. Her dower may be estimated upon the principle of a life annuity. Smith v. Jackson, 2 Edw. Ch. 28-36;Hawley v. Bradford, 9 Paige, 200;Jenkins v. Hopkins, 9 Pick. 543. Any equitable mode of compensating the widow may be adopted with her consent. Van Gelder v. Post, 2 Edw. Ch. 577;Hale v. James, 6 Johns. Ch. 258. Equity can leave the purchaser undisturbed, and, with the assent of the widow, decree a gross sum in lieu of dower. Will. Eq. Jur. 699. Campbell v....