Ludwig v. Ludwig

• Decision Date: 27 May 1919
• Parties: LUDWIG v. LUDWIG ET AL.
• Court: Wisconsin Supreme Court

170 Wis. 41

172 N.W. 726

LUDWIG

v.LUDWIG ET AL.

Supreme Court of Wisconsin.

May 27, 1919.

Appeal from Circuit Court, Milwaukee County; Wm. B. Quinlan, Judge.

Action by Sarah Ludwig against Emma E. Ludwig and others. Judgment for plaintiff, and named defendant appeals. Reversed and remanded, with directions.

For some time prior to August, 1908, the plaintiff Sarah Ludwig and her then husband, William Ludwig, were keeping a rooming house in Milwaukee near the United States government building, where William Ludwig for a long time had been and until his death continued to be, employed. They had no definite lease and were keeping it for a friend of theirs, paying $15 or $20 per month rent, and receiving from roomers $80 per month or more.

The defendant Roy J. Ludwig was a son of William and Sarah and had left their home many years before at the age of about 15, and in 1906 had married the defendant Emma. At the time of the marriage and of the transactions here in question both Roy and Emma were living in Chicago and in receipt of large incomes from separate enterprises conducted by each, of the nature of which the least said the better. In June, 1908, the defendants Roy and Emma purchased a house and lot in the residence portion of Milwaukee on Downer avenue, and in July purchased the next lot thereto, the deeds running to them as husband and wife. They spent considerable money in furnishing and fitting up the house and making additions thereto, so that finally there was an investment of over $16,000 in the property. Under an arrangement made in August, 1908, the testimony concerning which is set forth in the decision, the plaintiff and her husband moved into the premises on Downer avenue and lived there together until the death of William in 1917, and the plaintiff Sarah continued to live there after his death.

In April, 1910, the defendant Roy obtained from the plaintiff Sarah $4,000, and used substantially all of it in the improvement of a certain saloon building described as the Casino then owned by him and in a portion of which the defendant Emma conducted and carried on her enterprise. No part of this $4,000 was received directly by the defendant Emma. The defendant Roy repaid $1,125 of that loan by turning over to his mother a legacy received by him in February, 1916.

In November, 1910, the defendant Emma loaned to her husband Roy $4,500, part of which was used by him in connection with the repairing and furnishing of the Casino building and in the repairing of another building also owned by him in Chicago, and in January, 1912, she loaned to him an additional $2,000 also for such use. At the time of these respective loans trust deeds were executed by the defendant Roy to his wife upon his interest in the Downer avenue property.

The $100 a month payments were continued until February or March, 1914. In October, 1914, the defendants Roy and Emma separated, and in 1916 Emma started a foreclosure proceeding in the circuit court for Milwaukee county upon the trust deeds above specified without making Sarah or William Ludwig parties therein, and judgment by default was taken for the amount then due. The defendant Wisconsin Trust Company was trustee in said trust deeds, and the defendant P. J. Kelly was appointed receiver in such foreclosure action. Shortly thereafter the receiver commenced an action for unlawful detainer to regain possession of the Downer avenue property from William and Sarah Ludwig. In 1916 the plaintiff Sarah, with her husband, William, commenced this action aginst the defendant Emma E. Ludwig, the Wisconsin Trust Company, and P. J. Kelly, as receiver for the relief embodied in the findings and judgment hereinafter set forth, and defendant Roy J. Ludwig was brought into the action by the cross-complaint and application of Emma E. Ludwig, but he made no contest herein.

The court found that in the fall of 1908 there was a contract for a good and valuable consideration to the effect that the plaintiffs William and Sarah were to have the Downer avenue premises so long as either of them lived and that as a further consideration for their changing their place of residence and giving up their rooming business and other good and valuable considerations then and in the future to be received the sum of $100 per month during the lifetime of said plaintiffs or either of them; that the defendants Roy and Emma were to pay the taxes and assessments and all repairs on said premises; that the plaintiffs performed at great material sacrifice the things upon their part agreed to be performed, gave up their rooming house business, took possession of the real estate, and made permanent and valuable improvements on said property at their own expense, and remained in possession ever since; that a loan of $4,000 was made in April, 1910, to the two defendants by Sarah Ludwig under an agreement that security in the form of a mortgage was to be given on the premises as a first lien, and that such mortgage was also to be security for the payment of any sums then due under the agreement to pay $100 per month or that might thereafter be owing on account of such agreed payments. The court also found the balance due in these respective matters.

Judgment was thereupon entered in substance providing: First, that the plaintiff Sarah Ludwig was entitled to the possession and use of said premises during the balance of her life; second, that the real estate was impressed and charged wth an equitable mortgage lien in favor of plaintiff to secure the payment of the sum adjudged to be then due her of $10,250 upon the promise given in 1908 to pay the $100 per month, and that further sums of $100 per month will continue to fall due on the 1st day of each month after August 1, 1918, during the life of the said Sarah Ludwig; third, that the said real estate was further impressed and charged with an equitable mortgage lien in favor of the plaintiff for the sum of $4,528.52, being the balance of the $4,000 loan together with interest; fourth, that the real estate should be sold at public auction, subject, however, to the right of the plaintiff to the use and occupancy thereof during life unless before such sale there should be paid the two respective sums above mentioned with interest, costs, etc., and that upon such sale if one should be had, a deed to purchasers thereof should be subject to the right of the plaintiff to such use and occupancy during her life, and that she should be paid out of the proceeds of any such sale the sums above mentioned, together with such further sums that shall then have accrued on account of the $100 per month; fifth, that if there should be a deficiency under such sale, then judgment should...