Clark v. Clark

45 N.W. 121, 76 Wis. 306, 1890 Wisc. LEXIS 110

• Court: Wisconsin Supreme Court
• Decided: March 18, 1890
• Status: Published

Opinion

Cassoday, J.

The findings of the court are sustained by the evidence. It is virtually conceded that when the plaintiff’s wife received the note and mortgage from her father the same became her sole and separate property. There is no competent evidence tending to prove that she ever transferred, or attempted to transfer, the title of them or either of them to plaintiff. The mere fact that a husband happens to get into his hands or custody a note or note and mortgage thus received by his wife raises no inference that she has transferred the title to him.

Besides, on the death"of her father in 1874-, the legal title to the mortgaged premises descended to her and his other heirs at law, who thereupon conveyed their respective titles "to her. By such acquisition of the title her mortgage became merged and extinguished.

Assuming that the note survived such acquisition of title as a claim against her father’s estate, yet, as she died intestate, the plaintiff could not thereafter acquire title to the same, except through administration of her estate. Marshall v. Pinkham, 52 Wis. 590. There is no evidence that such title was thus acquired. The result is that the plaintiff had no right of action against his infant children.

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