
    Moses, Respondent, vs. Moses, Appellant.
    
      January 7
    
    January 28, 1913.
    
    
      Divorce: Vinal division of estate: Concealment of assets.
    
    1. In an action for divorce, findings of the trial court to the effect that the defendant husband had wilfully concealed from the plaintiff and the court either the actual amount of merchandise that he owned or the proceeds of such parts thereof as he had sold, and that thus his liabilities had been made to appear unduly large in comparison with his assets, are held to be sustained by the evidence.
    2. A final division of the defendant’s property by the judgment in such case, allowing plaintiff $1,000 out of property worth at least $2,000, was not inequitable.
    
      Appeal from - a judgment of tbe circuit court for La Crosse county: E. C. Higbee, Circuit Judge.
    
      Affirmed.
    
    This is an appeal by tbe defendant from tbat portion of -a decree of divorce making a final division and distribution of tbe defendant’s property and awarding tbe plaintiff a monthly allowance for tbe support of two minor children. Tbe plaintiff was also allowed disbursements in tbe action to tbe amount of $43.68.
    Tbe parties to tbe action are Syrians. They were married on January 14, 1906. Tbe defendant is a peddler, traveling through tbe country north of tbe city of La Crosse. It appears tbat be was tbe owner in 1909 of two lots and two Rouses thereon in North La Crosse. This property is worth about $2,500. In 1909 it was unincumbered. Tbe parties occupied one of tbe bouses and rented tbe other. Tbe defendant dealt with business firms at La Crosse and purchased goods for bis business to tbe amount of about $2,000 per year. Tbe books of the firm with which be principally dealt show tbat be was accustomed to keep bis indebtedness relatively small, and tbat at times be received a discount for payments made before bills were due. Tbe amount due this firm at tbe end of 1907 was $120.62; at tbe end of 1908, $205.66; at tbe end of 1909, $31.29; at tbe end of 1910, $350.06; and tbe first part of May, 1911, $626.95. His credit was very good at tbe bank with which he dealt, it having loaned him sums of money at various times upon bis unsecured notes.
    In 1909 trouble.arose between tbe plaintiff and tbe defendant, which eventuated in tbe wife securing a divorce. Pursuant to tbe terms of a stipulation she was given tbe custody of tbe children and $100. By agreement tbe parties afterward resumed their marital relations.
    In January, 1909, tbe parties executed a mortgage for $500 in favor of tbe Exchange State Bank of La Crosse. The defendant testified tbat this mortgage was executed to obtain money to enable bis wife to go borne for a couple of months to Syria. Tbe wife did not go. On April 17, 1909, a deed of tbe two lots, subject to tbe mortgage to tbe bank, was executed by tbe parties in favor of Mary Monsoor, tbe sister of tbe defendant. Tbe defendant took back a mortgage from bis sister for $1,500. This mortgage was never recorded and tbe defendant testified that it bad been destroyed.
    On July 8, 1910, while tbe present action was being contemplated and three days before tbe plaintiff verified tbe complaint, Mary Monsoor and her husband executed a mortgage for $1,500 in favor of tbe defendant’s principal creditor, La Orosse Olotbing Company, to secure defendant’s indebtedness to this creditor. There is no evidence to show that this security was asked or demanded by tbe preditor. Tbe account of this creditor, filed as an exhibit in tbe case, shows a- credit on October 5, 1910, of “Bills receivable,. $939.00,” and on March 16, 1911, “Bills receivable, $565.05.” Tbe last item of tbe account is dated May 8, 1911, and tbe account then shows a balance due from tbe defendant of $626.95. A note at tbe foot of the exhibit reads as follows:
    
      “We also bold note, dated January 20, 1911, for $1,500 and interest, against David Moses. In explanation of this note, will say, this note was taken in settlement of tbe two notes of October 3, 1910, and March 16, 1911, Mr. Moses paying the difference and interest.
    “N. B. Entry of March 16, 1911, should have been made November 14, 1910, this being an oversight on tbe part of our bookkeeper.”
    Tbe defendant testified that at tbe time of trial be owed tbe clothing company $2,126; that be still owed tbe bank $500; that a horse for which be paid $195 was sick and not worth more than $100; that be owed to others than his principal creditor $231.50 for goods be bad bought that spring; that be bad no money; that be bad on band a stock of goods worth only $150 or $200; and that be would sell bis wagon for $200.
    Tbe defendant bas always retained possession of tbe bouses and lots to wbicb be held tbe unincumbered title in 1909 and bas collected tbe rent therefrom.
    Tbe court found as follows:
    “Tbe court finds that tbe treatment of tbe plaintiff by tbe defendant bas been cruel and inhuman.
    “That such treatment bas been practiced by tbe use of abusive language and personal violence. That it bas impaired tbe plaintiff’s health.
    “That it is unsafe for her to live and cohabit with tbe defendant.
    “That tbe defendant is not tbe proper person to have tbe care, custody, and control of tbe minor children.
    “That tbe plaintiff is a proper person to have tbe care, custody, and control of said children.
    “That prior to tbe time of tbe commencement of tbe first divorce proceedings between these parties, tbe defendant owned lots 11 and 14 of block 18 of tbe original plat of tbe village of North La Crosse, now tbe city of La Crosse, of tbe value of $2,500.
    “That be was and is still doing business as a peddler, selling on tbe average more than $2,000 worth of merchandise annually.
    “That up to that time be bad kept bis bills for merchandise paid and purchased bis stock substantially for cash.
    “That just prior to tbe commencement of said proceedings be induced bis wife to join with him in a deed of said lots to tbe defendant’s sister, wbicb deed was without consideration.
    “That be bas continued in tbe occupancy of said lots and bas received tbe rents and income therefrom since tbe making of said deed.
    “That for tbe purpose of defrauding tbe plaintiff be bas let bis bills for merchandise remain unpaid and bas incurred indebtedness therefor for tbe purpose of making it appear to tbe court that be is in poor financial circumstances, although Lis sales Lave not decreased and no loss or reason sLown for Lis delinquency in this respect.
    “And as conclusions of law tLe court finds:
    “1st. TLat tLe plaintiff "is entitled to a judgment of absolute divorce and to Lave tLe care and custody and maintenance of tLe minor cLildren, free from any restraint on tLe part of tLe defendant, except tLat tLe said defendant sLall be permitted on proper occasions to visit tLe said cLildren, on condition, Lowever, tLat Le restrain from creating any disturbance and restrain from any abuse or ill-treatment of tLe plaintiff.
    '“2d. TLat tLe defendant pay to tLe plaintiff tLe sum of one tLousand ($1,000) dollars, as and for a final division of property of tLe defendant, and that the same be made a lien and charge upon and against said lots 11 and 14 in block 18 of the original plat of the village of North La Crosse, now the- city of La Crosse.
    “3d. TLat the defendant also pay to the plaintiff eight ($8). dollars per month for the support and maintenance of the minor children of the parties; the first payment to be made on the 15th- of June, and on the 15th day of each and every month thereafter.
    “4th. TLat Le pay in addition thereto the disbursements of this action, to be taxed by the clerk.”
    TLe defendant “appeals from that portion of the interlocutory decree of divorce relating to the final division and distribution of the defendant’s property and awarding the plaintiff the sum of one tLousand ($1,000) dollars and further awarding the plaintiff the sum of eight. ($8) dollars per month for the support of the minor cLildren of said parties.”
    TLe judgment was entered June 10, 1911.
    
      John F. Doherty, for the appellant.
    
      J. F. Higbee, for the respondent.
   Siebecxee, J.

The court found that the defendant wil-fully concealed from the plaintiff and the court either the actual amount of merchandise Le owned, or the proceeds of' such parts thereof as Le Lad sold, and that thus Lis apparent liabilities for goods purchased bad been enhanced and made to appear unduly large in comparison with his assets. A careful examination of the record convinces us that this conclusion of the trial court is justified by the facts and circumstances of the case. The facts and circumstances of defendant’s business transactions and the condition of his property at the time of trial tend to support the court’s conclusion that his property, over and above his bona fide debts, is of the value of $2,000, and this court cannot say that the court’s findings on the subject are against the clear preponderance of the evidence.

The appellant’s contentions, assailing the court’s findings of fact, rest on the evidence of the defendant, which, as heretofore indicated, the trial court deemed of little if any weight. The weight and credibility of defendant’s evidence can best be determined by the lower court as the trier of facts. He heard and saw the party while testifying, and he is much better informed than this court to judge of the probative force of this evidence. His findings of fact cannot be disturbed.

Out of the gross sum of $1,000 allowed the plaintiff she will be compelled to pay her attorney’s fees and the expenses incurred in the prosecution of the action in the courts. In the light of the facts thus established, it cannot be said that the final division and distribution of the defendant’s property between the parties is inequitable.

By the Court. — The judgment appealed from is affirmed.  