THESE parties appeared in reverse order in the trial court and we hereinafter designate them as there.
The question before the court was the proper division of property between husband and wife, following divorce. The property in question was the product of joint capital and *Page 459 joint labor, and on that basis should have been equally divided. The total value was found by the court to he $378,162.84, of which it appeared defendant was possessed of an amount valued at $257,559.16, and plaintiff of an amount valued at $120,603.68, hence the court gave plaintiff judgment for one-half the value of the excess held by defendant, i. e., $68,477.74. April 2, 1923, we affirmed that judgment. Application for rehearing was denied June 4, 1923, but the cause was remanded with instructions to "divide the property equally between the parties according to present values, so far as the same may be done equitably, and, as to the property which cannot properly he so divided, plaintiff in error he required to pay to the defendant in error one-half of the fair value of the same, as of the date of the decree, January 16, 1917.
The allowance of a money judgment, in lieu of a division of any part of the property, is not to be taken as establishing a rule to the effect that on a division of the property of an ordinary partnership a money judgment should he entered." Wigton v. Wigton, 73 Colo. 337, 342; 216 P. 1055.
In carrying out our mandate the trial court interpreted our decision as an affirmance of a money judgment with permission to pay in property, so far as equitable, and allowed interest on the ground that defendant had enjoyed possession and income. Judgment was accordingly entered in favor of plaintiff for $86,190.54, payable in specific property designated and valued after a reference and report, all the costs of which were charged to defendant. To review that judgment defendant brings error and asks that the writ be made a supersedeas. He contends that the trial court misinterpreted our mandate to his great prejudice, and in this we think he is correct. It is not surprising, however, that the trial court was, under the circumstances, led into that error. Settlement might have been necessary in cash or property or both. Defendant was in possession and control of the larger portion of the assets and therewith was continuing the business. A forced *Page 460 sale or division might result in serious loss. Plaintiff might have been without facilities for handling the property. Hence it might have been advantageous for both that the settlement be made in money. If so, the original judgment and our opinion of April 2, 1923, were correct. The injustice thereof having been urged on rehearing, we made the modification of June 4, 1923, changing the method, but upholding the principle of distribution. At that time we affirmed the findings of fact on which the former judgment was based and now affirm those in the judgment before us.
Our former opinion, as modified on rehearing, required simply an equal division of property, with June 4, 1923, values as a guide, and cash settlement only where absolutely necessary. As to the property in defendant's possession he was a trustee. It was found by the court, and is undisputed, that it has been managed at a loss, and as defendant had paid for necessary improvements and upkeep, and had paid taxes, he should not have been charged with interest. Any of the assets dissipated by him through violation of his duty as trustee he must make good, and his voluntary transfers will be treated, as to him, as a nullity,
Using the 1923 values as a guide there should first be set apart to defendant property equal to that already held by plaintiff, i. e., $120,603.68. In so doing there must first be charged against him such sums as were lost in speculation in oil stocks or other clear violation of his duty as trustee. The remainder necessary to equal said sum he should be permitted to select. Thereafter selections should he made alternately. It seems further reference or additional testimony will be unnecessary, but the costs of the last reference should be equally divided.
The foregoing, or other equally equitable method, should be followed, resort being had to cash settlement only as hertofore [heretofore] provided, and the property distributed and the litigation terminated with all convenient speed. *Page 461
The judgment is reversed and the cause remanded for further proceedings in conformity herewith.
MR. JUSTICE CAMPBELL not participating.