Jezo, Appellant, v. Jezo, Respondent, 23 Wis. 2d 399

Dieterich, J. The record reveals the following facts. Martin and Stella Jezo were married in 1921, and Martin entered into the building business shortly thereafter. The Jezo’s home was used as an office until 1933. In 1934, the business was incorporated, and a single certificate of stock was issued to Martin and Stella jointly. Stella was an officer and director of the corporation from 1934 to 1957, and from 1934 to 1953, she did some office work for the business, for which she received a salary and bonuses. The business halted temporarily during World War II, and flourished thereafter.

In 1957, Martin bought out Stella’s stock in the company, and she has not participated in its activities since that time. Martin followed the practice of acquiring all real estate jointly in the name of Stella and himself, and the couple maintained a joint checking account. Each also maintained one or more separate bank accounts, although as funds were needed for acquisition or improvement of property, they would transfer funds from their separate accounts and place them in the joint account. Company expenses were charged to the joint account.

Prior to 1957, all taxes on income from the joint properties were paid out of the joint account, and from that time forward the taxes were paid from the individual funds. The accounting firm which had handled the Jezo’s financial affairs for the past forty years was asked by Martin to determine the respective contributions of Martin and Stella toward the jointly owned assets.

The record reveals that errors were made in allocating these contributions, although after corrections had been made, the accountant’s report indicated that since 1948, the parties’ contributions toward the joint assets amounted to approximately 85 percent for Martin and approximately 15 percent for Stella. Stella disputed the accountant’s calculations, and the trial court made no determination as to the respective contributions of Martin and Stella, although it found that Martin’s monetary contributions were substantially in excess of Stella’s.

The only issue presented on this appeal is whether, in an action for partition, where it is determined that one of two joint owners made a larger contribution than the other to the jointly owned assets, the division should be made on an equal basis, or whether there are other factors relating to the respective contributions made by each joint owner which should be taken into consideration. The trial court determined that there should be an equal division between Martin and Stella.

The property in question consists of five parcels of jointly held real estate and two joint bank accounts, with a total aggregate value of approximately $430,000. Neither party questions the fact that this property is jointly owned by Martin and Stella, and it is conceded that Martin is entitled to partition as a matter of right. Partition is an equitable proceeding, and the object of a court of equity is to do justice between the parties. Kubina v. Nichols (1942), 241 Wis. 644, 648, 6 N. W. (2d) 657; Rainer v. Holmes (1956), 272 Wis. 349, 352, 75 N. W. (2d) 290.

Sec. 276.05, Stats., outlines the powers of the court in actions for partition, and that

section provides as follows: “In all actions for partition the court may try and determine all questions of conflicting or controverted titles, quiet title, remove clouds in titles, assign dower and homestead and estate, by the curtesy, apportion encumbrances, adjust claims for improvements or for rents and profits; by its judgment invest titles without the forms of conveyances, adjudge a sale either subject to or free from encumbrance, and order sales for the purpose of division in proper cases.” The fundamental concept of joint tenancy is that the joint tenants enjoy the estate equally during their lives, each having an undivided one-half interest in the property.

Estate of King (1952), 261 Wis. 266, 52 N. W. (2d) 885; Eloff v. Riesch (1961), 14 Wis. (2d) 519, 523, 111 N. W. (2d) 578. While a joint tenancy differs from a tenancy in common in several respects, for the purpose of division of the proceeds derived from the sale of the property upon termination of the joint tenancy, the essential differences between the two cease to exist.

Joint tenants are said to be seized of the entire estate for purposes of tenure and survivorship, but of only a particular part or interest for the purpose of immediate alienation; whereas tenants in common having no rights of survivorship, hold separate estates in the whole. 14 Am. Jur., Cotenancy, pp. 81, 88, secs. 8, 17. The Iowa supreme court, in summarizing the law on the subject of division of property pursuant to termination of a tenancy in common in Williams v. Monzingo (1944), 235 Iowa 434, 442, 16 N. W. (2d) 619, 156 A. L.

R. 508, stated as follows : “. . . we find the rule to be that where a conveyance to purchasers of a tenancy in common is silent these purchasers are presumed to take equal shares. However, this presumption is a rebuttable one and does not prevent proof from being introduced that the respective holdings and the interests of the parties are unequal.

In a showing of unequal contribution, in the absence of further proof, the prior presumption is overcome and another presumption arises; that is, that the parties intended to share in proportion to the amount contributed by each to the purchase price.” The series of presumptions arising in the division of an estate held in a tenancy in common is extensively annotated in 156 A. L. R. 515. Hermance v. Weisner (1938), 228 Wis. 501, 506, 279 N.

W. 608, was a partition action where one cotenant, who had paid off several mortgages on the property, thus discharging substantially the entire purchase price of the premises, was given a lien on the property to recover the sums expended in removing the encumbrances from the jointly held property. In Eloff v. Riesch, supra, one joint tenant who had paid off a mortgage upon the entire property was entitled to be subrogated to the rights o£ the mortgagee against the other joint tenants, and was given a lien on their interest.

The court noted that this would be true even though the joint tenants were husband and wife, citing Petty v. Petty (1927), 220 Ky. 569, 295 S. W. 863. The rule is, therefore, that the interests of joint tenants being equal during their lives, a presumption arises that upon dissolution of the joint tenancy during the lives of the cotenants, each is entitled to an equal share of the proceeds. This presumption is subject to rebuttal, however, and does not prevent proof from being introduced that the respective holdings and interests of the parties are unequal.

The presumption may be rebutted by evidence showing the source of the actual cash outlay at the time of acquisition, the intent of the cotenant creating the joint tenancy to make a gift of the half interest to the other cotenant, unequal contribution by way of money or services, unequal expenditures in improving the property or freeing it from encumbrances and clouds, or other evidence raising inferences contrary to the idea of equal interest in the joint estate.

In the instant action, the trial court found that Martin’s monetary contributions to the jointly held property “were substantially in excess” of those made by Stella, although no finding was made as to the precise amount of each party’s contributions. The record reveals that there was some dispute over the accuracy of the figures submitted by the ac= counting firm, and Stella did not attempt to put in any evidence of her contributions to the joint estate.

Upon the record in the instant action, it is obvious that a reappraisal by the trial court of the respective interests of Martin and Stella Jezo in the jointly owned property is required in order that justice may be done between the parties.

On the former appeal, this court stated that determination of the issue relating to the property of the parties should be made by the circuit court on the basis of the same legal and equitable principles which would govern the rights to property as between strangers, and that the fact that the litigants are husband and wife should not play a role in the resolution of the partition question. Jezo v. Jezo, supra, page 82. The appellant contends that if these directions are adhered to, the question of dower and curtesy need not be considered. The trial court did not refer to dower or curtesy at all.

What we said in Jezo v. Jezo, supra, about treating the parties as “strangers,” although perhaps somewhat misleading, was not intended to preclude consideration of dower and curtesy in making the division.

Sec. 276.36, Stats., dealing with partition actions, provides in part as follows: “Any party to the action who has a right of inchoate dower or is a tenant by the curtesy, for life or for years shall be entitled to receive from the proceeds of the sale a gross sum, to be fixed according to the principles of law applicable to annuities, in satisfaction of his or her estate or interest.” Since the partition will have the effect of extinguishing the dower and curtesy interests of the parties in the instant action, these interests must be taken into consideration by the trial court .in arriving at an equitable division of the joint estate.

Stella’s inchoate right of dower is not necessarily offset by Martin’s right of curtesy, for the wife’s dower interest is absolute, in the sense that it cannot be unilaterally extinguished by the husband, whereas a husband’s curtesy rights may be extinguished by the unilateral act of the wife. Our reference in the earlier Jezo Case to the fact that the parties should be treated as “strangers” was intended to exclude from consideration in making an equitable partition certain purely matrimonial matters which sometimes can affect the division of property in a divorce action.

For example, in divorce the blame on the part of one spouse in causing the divorce may be considered in the division of property. See Barrock v. Barrock (1950), 257 Wis. 565, 570, 44 N. W. (2d) 527. On the other hand, the fact that the parties are man and wife may have occasioned completed interspousal gifts, and such factors would have to be considered in a partition action. It necessarily follows that the interlocutory judgment of the circuit court must be reversed.

The cause is remanded with directions to the court to redetermine the question of the respective contributions of Martin and Stella Jezo to the jointly owned property. The trial court may require additional evidence to be received in making its final determination. By the Court. — Judgment reversed. Cause remanded for further proceedings not inconsistent with this opinion. The following opinion was filed June 30, 1964: In the case of a joint tenancy between husband and wife, however, the duties and services incidental to the marital relation are not properly considered in this respect.