#### Charnley, Appellant, vs. Charnley, Respondent.

*February 1*

February *20, 1912.*

*Divorce: Division of property.*

One and one-half aeres of land were purchased with $300 of the wife’s money. Later the husband purchased an adjoining acre with his own money, made various improvements, and built a house. Fourteen years afterwards the premises were sold for $2,900, with $1,800 of which an eighty-acre farm was bought in the wife’s name. This farm was maintained and improved by the combined efforts and contributions of husband and wife, although he worked the larger part of the summer season as a bricklayer, leaving his wife and children to carry on the farm, and furnishing them little or no money. Out of a legacy received by the husband he paid off an incumbrance of $666 on the farm. In an action by the wife for divorce, the court found the value of defendant’s personal property to be $1,400 and the value of the farm $3,500. *Held,*that in making a division of the property the wife should have the farm and personalty, charged with the payment to the husband of $1,500, in addition to certain payments already made by her pursuant to the judgment of the court below.

Appeal from a judgment of tlie circuit court for Sauk county: E. Ray Stevens, Circuit Judge.

*Modified and affirmed.*

This is an appeal from that part of an interlocutory decree of divorce affecting the property rights of the parties. The facts relating to the property of the parties are as follows:

The parties were married in 1872. At that time the defendant had about $100; the plaintiff had $700 from her parents. For about three years after the marriage the parties lived near' Chicago, Illinois, where the defendant used and lost in unsuccessful business ventures $300 of the plaintiff’s money. About $100 of the plaintiff’s money had been used in the purchase of household furnishings. Upon leaving Chicago the parties moved to Wisconsin, and in 187 6 the *417rest of plaintiff’s money, $300, was used in tbe purchase of ■one and one-balf acres of unimproved land at Wauwatosa, Wisconsin. Subsequently tbe defendant purchased an additional acre adjoining tbe land plaintiff bad previously purchased. Tbe title to these parcels of land was taken in tbe name of the plaintiff. Trees were planted by tbe defendant and other improvements were made by him upon tbe premises. A bouse was built by him. Eor fourteen years this was tbe residence and home of tbe parties. During this period tbe defendant worked more or less in tbe city at bis trade of bricklayer, sending tbe plaintiff small sums of money, but insufficient to support her. Tbe care of tbe household and tbe work in tbe garden on these premises was performed by tbe plaintiff and she also kept boarders during this period. During their residence at Wauwatosa tbe defendant received a legacy of $2,000, of which about $500 appears to have been used to pay off a mortgage debt. Tbe evidence does not show what disposition tbe defendant made of tbe balance of this legacy. When this Wauwatosa property was sold in 1890 for $2,900, indebtedness to tbe amount of $400 was paid, and with $1,800 of tbe balance a farm of eighty acres was purchased in Sauk county, tbe title being taken in tbe name of tbe plaintiff. Apparently some of tbe money received from tbe Wauwatosa property was used in tbe purchase of personal property. Tbe defendant has worked at bis trade at Reeds-burg and when be returned home, to tbe farm would bring food supplies with him as requested by tbe plaintiff. At first tbe work on tbe farm was largely done by tbe plaintiff with tbe assistance of her children; of late years practically all of tbe work has been.done by them. It appears that tbe defendant has not furnished tbe plaintiff with money. In July, 1909, tbe defendant received another legacy of $2,360. Of this legacy, $666 was used to clear tbe farm of an incum-brance. Tbe defendant used a part of it to purchase some *418household furnishings and personal articles for the children.. The balance has been disposed of by the defendant. The plaintiff testified that the coat she wore at the time of the trial was the first coat the defendant had ever purchased for-her. There is no dispute that the defendant purchased the acre of land adjoining that purchased and owned by the-plaintiff at Wauwatosa.

The trial court found the value of the defendant’s personal property to be $1,400 and that the farm in the plaintiff’s name-was worth $3,500; that the Wauwatosa home had been purchased “with $300 of plaintiff’s separate estate; that the same was improved and its value largely increased by defendant’s labor and with his earnings.” This finding is evidently not intended to refute the undisputed fact that the adjoining acre was purchased by the defendant. The court also found as follows:

“6. That the defendant spent most of his time during the-summer season at work as a mason; that plaintiff has stayed on the farm, worked outdoors and carried on the farm with the help of their children; that the plaintiff has been frugal and saving; that the defendant has been addicted to excessive drinking, has spent his money freely, and is not of a saving-disposition ; that he is no longer able to do hard manual labor; that he has not attempted to carry on the farm work for some years past; that he receives a pension of $12 a month.”

Upon the findings the court held that the $300 of plaintiff’s money invested in the Wauwatosa home should be restored to her with interest, amounting to $900 for principal and interest; and that the farm and all the personal property of the defendant should vest absolutely in the plaintiff, on condition that the farm should be charged with the payment of $2,500 to the defendant. The court also specified that the-$2,500 should be paid in monthly instalments of $25 and that interest should be allowed the defendant on the unpaid part of' this amount.

The plaintiff appeals from the interlocutory judgment en*419tered and complains tbat tbe division of tbe property so ordered is unjust and inequitable as to ber.

*Chas. H.*Stone, for tbe appellant.

*Daniel*Buggies, for tbe respondent.

Siebecker, J.

Tbe plaintiff appeals from those parts of' tbe judgment establishing tbe interest of each of tbe parties in tbe farm and mailing tbe final division and distribution of tbe real and personal property of tbe defendant. Tbe evidence set out in tbe foregoing statement of facts is without, dispute as to tbe amount each party contributed to tbe purchase of tbe real estate at Wauwatosa and as to tbe fact tbat. tbe wife contributed from earnings to tbe improvement of this property and of tbe farm in Sauk county, to which she held tbe exclusive title. Under tbe evidence we are persuaded tbat tbe sum of $900, which tbe court awarded ber as; and for ber interest in tbe Sauk county farm, is not a sufficient amount to restore to ber tbe just share she has in tbe farm. Tbe facts plainly establish tbat ber interest therein exceeds tbat amount. Since she has title to tbe whole thereof, the pertinent inquiry is, What part of this farm so held by ber did she derive from ber husband? It is clear tbat he-contributed tbe purchase price for one acre of tbe Wauwatosa-borne and tbat be contributed part of tbe means to make the improvements thereon. Tbe proceeds of tbe sale of tbe property were invested in tbe Sauk county farm, upon which tbe parties resided, and which they maintained and improved by their combined efforts and contributions. It appears tbat tbe defendant paid a mortgage on tbe farm, amounting to-$666, out of an inheritance. In view of tbe facts of tbe case it cannot be said tbat more than one half of tbe value of this-, farm, so held by tbe plaintiff, was derived from tbe defendant. Hence bis interest therein and tbe personalty, valued at $1,400, amount to about $3,100. Under tbe judgment of distribution of bis estate tbe court awarded him $2,500, to be-*420paid to him in instalments of $25 per month, with interest on the unpaid portion, and charged the wife’s entire estate with a lien to secure its payment. It is obvious that the plaintiff will be unable to negotiate a mortgage loan on the premises to pay ■defendant this sum. Nor is>it probable that she could borrow such a sum by mortgaging the personalty with the real ■estate. Should she succeed in doing so, in all probability she would be unable to pay the taxes, the interest on the loan, and the annual expense for upkeep. In such an event her, property, including her separate estate, would be absorbed to meet the obligation imposed by this judgment. Under the circumstances we cannot approve this division of the defendant’s estate as equitable between the parties. We are of the opinion that the trial court awarded the defendant too large an amount, that the defendant should receive no more than $1,500 in addition to the .payments plaintiff has actually made on the judgment to this date, February 20, 1912, and that the judgment should be modified accordingly. Laws of 1909, ch. 323; Laws of 1911, eh. 239. This will enable the plaintiff to obtain the amount to be. paid the defendant and thus make the final distribution of the defendant’s property as determined by the judgment of the court.

*By the Court.*— It is so ordered. Neither party is to recover costs on this appeal. The respondent is to pay the clerk’s fees in this court.