Radabaugh v. Radabaugh
| Citation | 35 N.E.2d 114,109 Ind.App. 350 |
| Decision Date | 30 June 1941 |
| Docket Number | 16441. |
| Parties | RADABAUGH v. RADABAUGH. |
| Court | Court of Appeals of Indiana |
Arthur Metzler, of Rochester, and Reed & Reed, of Knox, for appellant.
Floyd Jellison, of South Bend, and Lutz, Johnson & Lutz, of Indianapolis, for appellee.
Appellee brought this action against appellant for divorce and appellant filed a cross-complaint asking for a divorce and alimony.
The court upon request found the facts specially, filed its conclusions of law and rendered a decree granting appellant a divorce, adjudging rights to certain real and personal property and denying appellant alimony.
Appellant excepted to the conclusions of law, filed a motion for a new trial which was overruled and a motion to modify the judgment which was also overruled. Reasons set forth in the motion for a new trial are (1) that the decision of the court is not sustained by sufficient evidence, (2) that the decision of the court is contrary to law and (3) that the court omitted to find certain essential facts.
An examination of the evidence discloses sufficient to sustain the court's finding, and while the facts, which appellant asserts were omitted by the court, might properly have been found, they are not in our opinion essential to a determination of the issues involved. No other alleged error is pointed out by appellant in connection with its motion for a new trial and we find no error in the overruling of that motion.
The court's conclusion of law number 4 is to the effect that of a certain mortgage loan of $3,500 appellant shall own $632 and appellee $2,868. Appellant contends that she is the owner of one-half of this mortgage loan.
The finding of the court is that $632 of money inherited by appellant and $2,868 of money earned by appellee during the period of the marriage was loaned to one Clarendine Brucker a brother of appellant, who executed his note to both appellant and appellee in the sum of $3,500 and secured the note by a real estate mortgage which was taken and duly recorded. The court further found that appellant worked for several years prior to her separation from appellee and prior to the making of the loan in question and that her wages were either used in the maintenance of the family or deposited in the account from which the $2,868 was withdrawn to make the loan. There is no finding of any agreement, understanding or arrangement between appellant and appellee as to the proportionate interest each should have in the loan in question.
The court also found that appellant and appellee had purchased real estate which they had deeded to themselves as tenants by entireties.
When a note and mortgage is made payable to a husband and wife, it is the general rule that they own each an undivided one-half interest, even though the consideration for the note and mortgage is the separate property of the husband. It is presumed that the husband intended to make his wife a gift of a one-half interest. Otherwise he would not have had the instruments so drawn. Collyer, Administratrix v. Cook Administrator, 1902, 28 Ind.App. 272, 62 N.E. 655. See also Anderson Banking Company v. Gustin, 1925, 84 Ind.App. 102, 146 N.E. 331.
In the instant case the husband and wife had pooled their funds regardless of source, to purchase real estate, to maintain the family and to make the loan in question. Under such circumstances the mere fact that the wife made a contribution toward the particular transaction of $632 from her own funds would not alone and of itself evidence an intention that she should own only that amount of the note, nor would her making of such contribution and its acceptance by the husband evidence any intention inconsistent with the presumption that the husband in receiving the note and mortgage made to both himself and wife intended to make a gift to his wife of a one-half interest. Had she contributed nothing the presumption, being unrebutted, would control and she would become the owner of one-half. It seems neither fair nor logical to say that because she did contribute something she should be penalized by becoming the owner of less than one-half. There being no finding of any intent, understanding or agreement to the contrary, we hold that by the transaction in question, the husband and wife became each the owner of an undivided one-half interest in the note and mortgage.
It is true that in a divorce proceeding in which the court has acquired jurisdiction of the subject matter and the parties such court has the power to, and, in...
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