Gallagher v. Gallagher

¶1We are satisfied, from a perusal of the evidence, that there was sufficient evidence in the case to justify the judgment of divorce. The sole remaining question is as to the division of property.

¶2The defendant’s counsel is entirely right in his contention that the court derives its power to pass title to lands upon a judgment of divorce entirely from the statute. Bacon v. Bacon, 48 Wis. 197. The statute provides (R. S. sec. 2364) *465that upon judgment of divorce 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, between the parties, and divest and transfer the title of any thereof accordingly; having always due regard to the legal and equitable rights of each party, the ability of the husband, the separate estate of the wife, the character and situation of the parties, and all the circumstances of the case. The statute further provides (sec. 2372) that no judgment of divorce shall in any way affect the right of the wife to the possession and control of her separate property, real or personal, except as provided in this chapter. It seems clear, from this provision, that the wife’s separate estate cannot be touched, and that, unless the property held in the wife’s name can be properly said to have been property derived from her husband, the judgment in this case cannot be sustained.

¶3It was argued that the words, property derived from the husband, as used in sec. 2364, meant only property directly transferred by the husband to the wife. Under this contention, if the husband deeded to the wife a parcel of land, and while she still owned the parcel a divorce was obtained by either party, the judgment ■ of divorce might provide for a division of that land; but if the land had been sold and the proceeds invested in another parcel of land, such second parcel could not be divided. ■ Ye cannot subscribe to such a severe construction. The statute must be so construed as • to effectuate its evident purpose. The apparent purpose of' the provision under consideration is to authorize the court to • make an equitable and final division of the husband’s entire property, whether it be held in his own name or in his wife’s name, and to exclude from such division the property of the wife which has not been derived from the husband. To accomplish this purpose, urn think the test must be, not whether ■ the particular piece of property standing in the wife’s name *466was transferred directly from the husband to the wife, but whether, as matter of fact, it was substantially derived, mediately or immediately, from the husband.

¶4Applying this principle to the present case, it is quite clear that the trial court was entirely justified in transferring the title to a part of the land held in the wife’s name to the husband. The original forty acres on which the parties began to live in 1848 was the wife’s property prior to her marriage, and represented an investment of $50. The rents, issues, and profits of it, however, belonged to the husband, prior, at least, to the enactment of ch. 44, Laws of 1850.1 This forty acres was sold in 1850 or 1851, and another forty acres bought with the proceeds, title to which was taken in the husband’s name with the wife’s consent. This second forty acres was kept four years, when it was sold and eighty acres was bought and the title taken by the husband with the wife’s consent. During all this time, also, the wife’s earnings belonged to her husband. Edson v. Hayden, 20 Wis. 682. Under these circumstances it is difficult to see how defendant had any separate estate in either of the two parcels of land the title to which was taken in the husband’s name with her consent. We see no escape from the conclusion that his title to these parcels was absolute and free from any trust or claim by the wife. R. S. sec. 2077; Skinner v. James, 69 Wis. 605. Therefore, when they sold the last-named eighty acres they sold the husband’s land, and when with the proceeds of that sale they bought eighty acres in the town of Lima, taking title to forty acres in the wife’s name, it must' be held that such forty acres was property derived from the husband. If this be so, then it is quite clear that the lands subsequently acquired, the title to *467which, was taken in the wife’s name, and which were paid for from the profits of the farming operations, must also be held to be property derived from the husband, so far, at least, that it may be divided upon judgment of divorce.

¶5The division made by the court seems to be fair and equitable between the parties. Certainly the defendant cannot complain, as her share is somewhat larger than the plaintiff’s. "We see no objection to the charge of $1,100 made upon the lands assigned to the wife. If the court could divest title to these lands, it manifestly -could incumber the title by subjecting it to such a charge. There is, however, no authority for that part of the judgment 'which directs an issuance of execution against the wife in case the said $1,100 is not paid within sixty days. Neither the statute nor the common law charges her with any personal liability, and this part of the judgment is erroneous and must be reversed.

¶6By the Court. — Judgment affirmed, except that part thereof which directs the issuance of execution against the defendant, which part of the judgment is reversed. No - costs awarded to either party. The respondent must pay the fees of the clerk of this court.