Westerlund v. Hamlin

Crownhart, J.

The decision of this case turns wholly on the construction of the judgment of the circuit court in the divorce proceedings between Louis Westerlund and the respondent. It will be seen from the portions of the judgment and findings quoted that the court did not in terms make any conveyance of the property jointly owned by the *162 parties to that action, and that the court expressly provided that said property should remain in the receiver’s control not exceeding one year from the date of the judgment, and that when a suitable opportunity of sale of said real estate should present itself, the receiver was to inform the court for further proceedings as by law provided. Sec. 2364, Stats., provides:

“Upon every divorce from the bond of matrimony for any cause . . . the court may further adjudge to the wife such alimony out of the estate of the husband, ... as it shall deem just and reasonable, or 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. . .

The court could not grant both alimony and a final division of the property. Steinkopf v. Steinkopf, 165 Wis. 224 , 161 N. W. 757 . The judgment did not in terms divest or transfer the real estate, and it did grant alimony. We are satisfied that the court did not intend by said judgment to divest the parties of their interest in the real estate until such time as the proposition of purchase should be presented to him, and that at such time he would give the matter further consideration. Thus, up to the time of the death of Louis Westerlund the title of the property was still in joint tenancy between husband and wife, and the survivor took the whole title.

It is claimed by the appellants that the judgment made a final division of the property, and that the judgment became absolute immediately preceding the death of the husband, under sub. 1, sec. 2374, Stats., which reads as follows:

“When a judgment of divorce from the bonds of matrimony is granted so far as it affects the status of the parties it shall not be effective until the expiration of one year from the date of the entry of such judgment; excepting that it shall immediately bar the parties from cohabitation together *163 and that it may be reviewed on appeal during said period. But in case either party dies within said period such judg-mént, unless vacated or reversed, shall be deemed to have entirely severed the marriage relation immediately before such death. Should the parties cohabit together after entry of such judgment and before vacation or reversal of same, they shall be subject to the penalties provided by section 2376.”

The second sentence of this section undoubtedly fixed the status of the parties for the purpose of determining questions of inheritance, but it does not otherwise attempt to change the title of property. Immediately upon the death of Westerlund, the survivor, under the deed of Thon, took title to all the real estate described in the deed.

By the Court. — The judgment of the circuit court is affirmed.