White v. Tillotson

• Decision Date: 05 April 1950
• Citation: 256 Wis. 574,42 N.W.2d 283
• Parties: WHITE et al. v. TILLOTSON.
• Court: Wisconsin Supreme Court

Page 283

42 N.W.2d 283

256 Wis. 574

WHITE et al. v. TILLOTSON.

Supreme Court of Wisconsin.

April 5, 1950.

Rehearing Denied June 6, 1950.

Bull & Biart, Madison, J. Michael Warner, Madison, of counsel, for appellant.

H. A. Schmidt, Lake Mills, for plaintiffs and respondents.

Mistele & Smith, Jefferson, for defendant and respondent.

HUGHES, Justice.

In addition to the appeal from the judgment ordering the property sold, appellant seeks to challenge the mortgage, contending that the devise by A. D. Faville to his sister effected a discharge of her mortgage.

We deem it sufficient to note that the trial court has not attempted to pass upon this question, but has merely ordered enough of the proceeds segregated to protect Alice White in the event it concludes that she has that amount coming. There having been no determination of that issue, the attempted appeal is premature.

The testimony offered by the plaintiffs was to the effect that a large farm can be operated more economically under mechanization and modern methods, and that therefore it should be sold in one unit rather than divided.

It appears quite clearly from the testimony of Ellen White that she is interested in acquiring the title to the whole farm. After testifying on direct examination that she thought a large farm desirable for diversified farming and as a dairy unit, she stated on cross-examination:

'I want a farm.'

'I think the whole farm should be as a unit.'

'Q. You would like the opportunity to acquire it as a unit? A. Yes, I would * * * Generalized farming includes dairying.'

The testimony of two experts produced by plaintiffs was to the effect that a large farm can be operated more profitably than a small one, and that there might be some loss of margin of profit if the acreage were divided. Both P. E. McNall, a professor from the University, and Oliver W. Rewey, manager of farms for absentee owners, testified that the desirable unit is one with large acreage because with mechanization it can be more profitably farmed than a small unit.

There was also some testimony that the cow barn was so large that it would be fully serviceable only on a large dairy farm, and that division would result in loss of part of the barn's value.

On behalf of the defendant there were as witnesses practical farmers from Jefferson county and a real estate broker who specializes in farm sales, who testified that the acreage could be divided into two farms as suggested by the defendant Tillotson, and that each farm would have approximately one hundred thirty acres of tillable land. They testified that the entire farm had a value of $38,000 and that if divided as Tillotson suggested, the south farm with the better buildings would be worth $27,000 and the north farm, $17,000 or $18,000. Several defense witnesses testified to what is almost common knowledge,--that the larger the farm offered for sale, the more limited the prospective buyers become.

It appears from the record that the plaintiffs, or at least one of them, are desirous of obtaining the whole farm. The defendant is so desirous of retaining half that he proposed a plan for division and offered to permit the plaintiffs to have first choice.

We do not criticize the aim of either party. The law, however, supports the defendant in his position.

At common law the partition of property had to be in kind. Whether there is an inherent right in a court of equity to order a sale where conditions require it is immaterial. The power exists by statute. Sec. 276.20, Stats., provides: 'If the court shall find that the land or any portion thereof is so situated that partition cannot be made without great prejudice to the owners, it may order the sheriff to sell the premises so situated at public auction. Such order shall direct the terms of credit which may be allowed for any of the purchase money, which the court shall think proper...