Martin v. Martin

• Decision Date: 03 April 1918
• Citation: 167 N.W. 304,167 Wis. 255
• Parties: MARTIN v. MARTIN.
• Court: Wisconsin Supreme Court

167 Wis. 255

167 N.W. 304

MARTIN

v.MARTIN.

Supreme Court of Wisconsin.

April 3, 1918.

Appeal from Circuit Court, Taylor County; G. N. Risjord, Judge.

Action by Rosa Martin against Joseph Martin for divorce. From a judgment for plaintiff for divorce and awarding her property subject to payment of a definite sum to defendant, plaintiff appeals. Affirmed.

This action was brought June 26, 1916, by the appellant against the respondent for divorce on the ground of cruelty and inhuman treatment. The case was tried by the court, and the following findings made: That both parties have resided for two years and more immediately preceding the commencement of this action in Taylor county, Wisconsin; that they intermarried April 13, 1898, and that there is no issue of the marriage; that the defendant's conduct toward the plaintiff during their married life, and perhaps more particularly the latter part of it, has been cruel and inhuman, consisting principally of harsh and inconsiderate treatment and on some occasions of actual assault, the plaintiff being of an exceedingly nervous temperament, and it is my judgment that the source of their troubles lay in difficulties relating to property and money matters, title to the real estate being in plaintiff and defendant insisting that he have a share of it, either in money or otherwise, and plaintiff not being willing to grant defendant's demand in that respect; that in the spring of 1898 plaintiff and defendant bought about ten 40's of land in Taylor county for $600 with money belonging to plaintiff, title to which land was taken in the plaintiff, said land being purchased from the estate of D. B. Wiley, deceased stepfather of defendant; that at the time of their marriage plaintiff was the owner of other real estate which she later sold for $900, which money was put into the property purchased as aforesaid; that except for said $600 and $900, which was contributed by plaintiff, all property now owned by the plaintiff and defendant, consisting of real estate of the value of about $12,000 and machinery, live stock, and other personal property, which at about the time of making the agreement between the parties, hereinafter set out, was of the value of about $2,000, is the joint accumulation of both parties; that both parties were hard-working people, economical and frugal, and their joint efforts combined resulted in the accumulation of said property; that the defendant since their marriage worked either on the farm, improving it and managing it, or off the farm for wages, earning about $900, substantially all of which was put into the property and the said real estate was greatly improved and its value largely enhanced by his earnings and labor; that for many years he paid the taxes on the property, both real and personal; that there is an indebtedness against the property of about $1,200 and some $400 owing to young men who worked upon the farm; that on the 12th day of February, 1916, the parties executed the following agreement:

“This indenture made the 12th day of February, A. D. 1916, by and between Rosa Martin of the first part and Joseph E. Martin, her husband, of the second part, witnesseth:

That in consideration of the mutual agreements and promises herein contained, and other good and valuable consideration, it is agreed, that said party of the first part, shall, as soon as may be, without unreasonable sacrifice, sell the property upon which the parties have heretofore resided, being the real property described as the southwest quarter (1/4) of section four (4) and the southeast quarter (1/4) of section five (5) all in town thirty-one (31) north, range one east, in Taylor county, Wisconsin, and also the personal property and equipment on said farm; should said property, real and personal be sold for fourteen thousand ($14,000) dollars, then said party of the first part shall pay to the party of the second part the sum of two thousand seven hundred sixty-six dollars sixty-six cents ($2,766.66) out of the proceeds of said sale, the same to draw no interest until such sale is made; should said property be sold for less than fourteen thousand ($14,000) dollars, each of the parties hereto shall share equally the deficiency; should said property be sold for more than fourteen thousand ($14,000) dollars, each of said parties shall equally share the gain.

It is further agreed in consideration of the promises that the aforesaid payments are in full and final division of the estate and property of the said parties, and that neither party shall have any demand or claim against the other out of the same, or for maintenance, or support, or interest in the property of the other. Until such sale is made and adjustment completed, the payment to be made to said Joseph Martin shall be a charge against said land and when such payment is made the said charge shall be satisfied of record and for that purpose said Joseph Martin does hereby grant power of attorney to Herman Leicht of the city of Medford, Wisconsin, to execute such discharge as fully to all intents and purposes as he could do if personally present.”

That said agreement was freely and voluntarily and understandingly made by the plaintiff, and was not made in aid of separation of the parties or in contemplation of divorce; that the defendant may have intended to leave the plaintiff after such agreement was made, but a separation between them does not seem to have been in the contemplation of plaintiff; that the agreement was made for the purpose of settling property rights between plaintiff and defendant; that the provisions of said agreement with relation to the property rights of the parties is, independent of the agreement, a just and equitable division of the property of the parties.

The court concluded that the plaintiff is entitled to a judgment of absolute divorce from defendant, subject to the provisions of the statute of this state relating to divorce; that the agreement executed between the parties February 12, 1916, is valid; that as a complete division of the property of the parties, the plaintiff pay to the defendant the sum of $2,766.66, as provided in said agreement, or, as proposed by counsel for defendant after the trial, in case plaintiff does not desire to sell the property now that she pay said amount in cash or execute and deliver to defendant a note and mortgage signed by her upon her real estate for said amount within 60 days from the time of service of a copy of the judgment upon her, said note to be due and payable at any time she desires within two years, bearing interest after six months at 6 per cent., and that the title to all the property of the parties, real and personal, vest in plaintiff as her share of said property subject to the lien thereupon created by this division of property and the option herein provided, plaintiff to assume payment of the indebtedness upon the farm and to the young men for labor; that, in case it should be determined upon appeal from this court that the said agreement as to the division of property is not valid, instead of said agreement constituting a division of property, I conclude that as a complete division of the property the plaintiff shall pay defendant $2,766.66 as his share of the property, and that all right, title, and interest to the property of the parties, real and personal, be awarded to plaintiff subject to such payment.

Judgment was rendered in favor of the plaintiff, who appeals from that part of the judgment which concerns the division of property between the parties and orders that she pay defendant $2,766.66.

Hill & Spohn, of Madison, for appellant.

P. T. Stone, of Wausau (C. B. Bird, of Wausau, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

[1][2][3] It is argued by counsel for appellant that there is no authority under the law of this state in a divorce action to charge the separate estate of the wife, not derived mediately or immediately from the husband, with a lien in favor of the husband, or vest the husband with the title to any portion thereof. This contention as stated may be conceded.

The inquiry here is whether the property was derived mediately or immediately from the husband. The question turns upon the construction of the statutes upon the subject. Section 2364, Stats., provides:

“* * * Or the court may finally divide and distribute the estate, both real and personal, of the husband and so much of the estate of the wife as shall have been derived from the husband. * * *”

Section 2372, Stats., provides:

“No judgment * * * shall in any way affect the right of a wife to the possession and control of...