Hiltbrand v. Hiltbrand

CRAIL, P. J.

The plaintiff brought this action for partition and accounting against her former husband, the defendant, to partition certain property which she alleged was held by the parties in joint tenancy, and for an accounting of the rents and profits therefrom, and also for an accounting of the sum of 3,000 Swiss francs or its equivalent in American money, which the plaintiff alleged was her separate property and was delivered by her to defendant for investment, but was commingled with defendant’s funds and invested. The parties had been divorced. In paragraph VII plaintiff further alleged that defendant acquired one of the properties on May 20, 1931, which was after the interlocutory decree but before the final decree of divorce was entered; and further “that said real property was acquired by defendant after said interlocutory decree of divorce was granted and during marriage and was not owned by him before marriage and is not property acquired by defendant by gift, bequest, devise or descent”. Answering plaintiff’s complaint, defend

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ant denied that plaintiff was an owner and joint tenant of said properties; that plaintiff on June 6, 1929; for a valuable consideration sold, assigned, transferred and delivered all her interest in said property to defendant as his sole and separate property; that plaintiff conveyed all her interest in the property referred to in paragraph VII of plaintiff's complaint to defendant by grant deed, and denied that plaintiff had any interest therein; and for a separate and affirmative defense the defendant alleged that plaintiff left defendant in the month of June, 1929, and went to Switzerland, but that before she went they had a complete and full settlement of all their financial and property affairs; that as part of said settlement plaintiff conveyed all interest or claim she had in all of the properties referred to by the plaintiff; that an accounting was then and there had between the parties of all moneys, properties or claims of the respective parties and that defendant paid plaintiff in full and complete settlement; that the sum referred to was $1200, and that plaintiff accepted the same in full satisfaction and settlement of all claims and demands she then had or would have against defendant arising out of all properties then had or thereafter to be acquired, and asked judgment accordingly.

The trial court found that plaintiff had paid over to defendant the Swiss francs for investment and that defendant had commingled the same with his funds and invested said moneys. The court found that the allegations of paragraph VII of plaintiff’s complaint above set out were true. The court also found that defendant had retained exclusive possession of the properties described in the plaintiff’s petition and had not accounted to plaintiff for any of the rents, issues or profits thereof, but that plaintiff on June 6, 1929, had signed and executed written instruments by which she surrendered, transferred and delivered any and all interest that she had in all said property to defendant. The court concluded that plaintiff should take nothing by her complaint and that the defendant should have judgment for his costs. Judgment was rendered accordingly. It is from this judgment that plaintiff appeals.