Radtke v. Radtke

• Decision Date: 15 June 1945
• Citation: 247 Wis. 330,19 N.W.2d 169
• Parties: RADTKE v. RADTKE et al.
• Court: Wisconsin Supreme Court

247 Wis. 330

19 N.W.2d 169

RADTKE

v.RADTKE et al.

Supreme Court of Wisconsin.

June 15, 1945.

Appeal from a judgment of the Circuit Court for Eau Claire County; Clarence E. Rinehard, Judge.

Affirmed.

Action by Lulu Radtke, plaintiff, commenced on October 30, 1942, against Alfred Radtke, Emma Radtke Olson, and Elsie Radtke Harstead, defendants, to set aside a deed of Charles F. W. Radtke, her deceased husband, to said defendants, or his joint tenancy interest in the homestead of the parties, the plaintiff not having signed, authorized or consented to the deed. Plaintiff seeks an accounting by defendants to plaintiff for the rents and profits of the premises from the date of the deed. The action was tried to the court. Findings of fact and conclusions of law were duly made and entered and an interlocutory judgment ordered for defendants. This judgment was entered on September 11, 1944. Plaintiff appeals. The material facts will be stated in the opinion.

A. H. Shoemaker, of Eau Claire, for appellant.

Ramsdell, King & Linderman, of Eau Claire, for respondents.

WICKHEM, Justice.

The facts are not in dispute. Charles F. W. Radtke married plaintiff on September 23, 1933. Because of ill treatment at the hands of the husband, plaintiff left the home of the parties on August 17, 1934 and never thereafter lived with him. On the date of his marriage, Radtke was the owner of a homestead in the city of Eau Claire and some four days after the marriage he executed a warranty deed to himself and his wife as joint tenants. After plaintiff left the home of her husband, he continued to reside on the homestead premises until September 17, 1941 when he went to a hospital for treatment. On October 21, 1941, without the knowledge or consent of plaintiff, he executed a warranty deed conveying his undivided one-half interest in the premises to his three children by a former marriage, the defendants in this action. Plaintiff, of course, did not join in the deed. Radtke left the hospital on February 25, 1942, and resided until his death on August 4, 1942 with his daughter the defendant Emma Radtke Olson. Defendants took possession of the property upon receiving the deed and leased the entire premises from that date.

The trial court found as a fact that at the time of executing the deed Radtke neither expected to recover nor return to the property, and as a conclusion of law that on the date of the conveyance, the premises were not the homestead of Radtke. The interlocutory judgment dismissed plaintiff's complaint and adjudged that defendants were entitled, upon their counterclaim, to a partition. It was ordered that the property be sold for cash and that there be an adjustment of all claims for improvements, rents and profits, and the taxation of costs and attorneys' fees.

Sec. 235.01, Stats., provides as follows:

‘* * * 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, without his wife's consent, evidenced by her act of joining in the deed, mortgage or...