revision of the decree. Stillman v. Stillman, 99 Ill. 196, 39 Am. Rep. 21; Cole v. Cole, 142 Ill. 19, 31 N. E. 109, 19 L.R.A. 811, 34 Am. St. 56; Craig v. Craig, 163 Ill. 176, 45 N. E. 153; Krauss v. Krauss, 127 App. Div. 740, 111 N. Y. Supp. 788; Mowbray v. Mowbray, 136 App. Div. 513, 121 N. Y. Supp. 45; Cary v. Cary, 168 App. Div. 939, 153 N. Y. Supp. 712. In New York there is now a statute making it mandatory on the court to eliminate the allowance for support if the divorced wife again marries, but, that notwithstanding, in the Mowbray case the court deemed accrued instalments protected as vested rights. Prior to the enactment of the statute mentioned it was held, in Livingstone v. Livingstone, 173 N. Y. 377, 66 N. E. 123, 61 L.R.A. 800, 93 Am. St. 600, that the decree for permanent alimony was a vested right which neither legislature nor court could impair, there being no statute giving the court the power to revise such decree. However, an inferior court, in Linton v. Hall, 86 Misc. 560, 149 N. Y. Supp. 385, refusing to follow the Mowbray ruling, held that the court was required by that statute to not only cancel alimony from the date of the application, but all alimony accrued subsequent to the remarriage as well. It may also be said that Morgan v. Lowman, 80 Ill. App. 557, is in conflict with Stillman v. Stillman, supra, in that accrued alimony is held to partake of a vested right only up to the remarriage. Gordan v. Baker, 182 Ill. App. 587, while recognizing the rule that remarriage does not ipso facto dissolve the obligation to pay alimony and that accrued alimony is a vested right that cannot be changed by a subsequent order of the court, holds that the wife may by laches lose that right to enforce it against the property left by her divorced husband.

That a divorced wife's remarriage, while not ipso facto canceling either future or accrued alimony granted for support merely, strongly impels the court to cut off the future, and permits judicial discretion to annul the accrued, is held in Cohen v. Cohen, supra; Brandt v. Brandt, supra; and Montgomery v. Offutt, 136 Ky. 157, 123 S. W. 676. regard that as a better rule. The statute having regard for the uncertainties of the future gives the court a continuing power concerning the alimony part of the decree insofar as it relates to the support of the wife or children, so that it may be revised to meet changed conditions of the parties. It would therefore seem proper that this power should also re

late, in a measure, to accrued and unpaid instalments. For some good reason, such as ignorance of the true situation, the husband may have been prevented from applying for a modification of the decree to which changed conditions equitably entitled him. Such facts relieved from accrued instalments in the California and Oregon cases cited. On the other hand when, as here, the husband has full knowledge of the marriage of his divorced wife, and that, notwithstanding such marriage, she looks for the payment of the alimony awarded, and he sits by without requesting any revision of the decree, he has not much claim upon judicial discretion as to the instalments accruing in the meantime. His conduct amounts to an acquiescence of the justice of the decree as applied to the time passing. We are unable to see any abuse of discretion in the order as made. There is nothing to indicate that the court's decision is based upon what we hold to be an incorrect rule, namely, that the accrued instalments of permanent alimony for support are vested property rights incapable of being changed or annulled.

Defendant cites Albee v. Wyman, 10 Gray, 222; Southworth v. Treadwell, 168 Mass. 511, 47 N. E. 93; Brown v. Brown, 38 Ark. 324; Casteel v. Casteel, Id. 477; but the propriety of abating past due instalments of alimony was not involved. Wetmore v. Wetmore, 162 N. Y. 503, 56 N. E. 997, 48 L.R.A. 666, was decided on the proposition that the trust fund sought to be reached could not be taken for the support of the divorced wife after her marriage to another. Miller v. Clark, 23 Ind. 370, on which plaintiff relies, is not in point, for the Indiana statute requires an award of permanent alimony to be in gross and it is therefore not in the nature of an allowance for maintenance merely.

We conclude that, while the remarriage of a divorced wife is a cogent and convincing reason for an abatement of the permanent alimony awarded her for her support, it does not ipso facto abate payment, and when application is made to annul and cancel accrued instalments of such alimony the determination rests in the sound discretion of the court.

Order affirmed.

1. Where a mortgage runs to husband and wife, it is presumed that their respective interests in the debt it secures are equal, but such presumption is not conclusive and the true interest of each may be shown.

2. Under G. S. 1913, § 7140, the court has power to decree a specific portion of the property of the husband to the wife for her support.

3. The court directed the husband to pay off a mortgage on his homestead which was occupied by his wife and children and to pay $50 per month for their support. If he failed to do so, he was ordered to pay her $60 per month and to pay the interest on the mortgage and the taxes on the homestead. Held: That the former alternative was optional, while the latter was obligatory in case performance of the first was refused.

4. The foregoing provision for the support of a wife and two minor children was not excessive, the husband's earning capacity being $150 per month.

5. The defendant should have been granted leave to visit his children at reasonable times. A new trial is unnecessary to enable him to obtain this privilege. He may obtain it by application to the district court after the case has been remanded.

Action in the district court for Hennepin county for limited divorce and for alimony. In his cross-complaint defendant sought an absolute divorce. The case was tried before Dickinson, J., who made findings and held that neither party was entitled to a divorce; that plaintiff was entitled to continue to occupy the homestead, but that she release $600

1 Reported in 171 N. W. 933.

of $2,000 received by her upon the payment of a joint note to pay a mortgage on the homestead, and that she have $50 a month for maintenance of her minor children. From an order denying his motion for amended and additional findings or for a new trial, defendant appealed. Affirmed.

Paul J. Thompson, John Ott and Iver C. Nelson, for appellant.
S. R. Child and N. E. Pardee, for respondent.

LEES, C.

This is an action by a wife against her husband for a limited divorce, wherein the latter, by answer and cross-complaint, sought to obtain an absolute divorce. Each charged the other with cruelty, but the court found that the respective charges were not sustained by the evidence, and both parties were denied a divorce. The court found, however, that plaintiff was entitled to separate maintenance for herself and her minor children and directed the entry of judgment therefor. Defendant appeals from the order denying his motion for a new trial.

From the findings these facts appear:

The parties were married in 1899 and lived together until May 9, 1916, when defendant left the family home and has not since returned. He is 52 years old and his wife is 45. They have three children, a daughter now of age, and a boy of 12 and a girl of 10 years living at home with their mother. Plaintiff, at the time of her marriage to defendant, had two children by a former husband, both of whom were supported by defendant after he married her and until they became of age. He is a locomotive engineer, receiving an average wage of $150 per month at the time of the trial, and his earning capacity is increasing. He has always provided well for his family, and plaintiff has always been a dutiful wife and a devoted mother to his children. He owns a house and lot in the city of Minneapolis. This property is the family homestead and plaintiff and her minor children live there. It is mortgaged for $600. Plaintiff owns and has title to a vacant lot adjoining the homestead. A note and mortgage for $2,000 running to both parties has been paid since the action was begun, by the deposit of the money with a third party to be turned over as soon as they unite in giving a satisfaction of the mortgage.

The conclusions of law were that plaintiff was entitled to retain the custody of the children and to receive support from defendant. She was given the right to continue to occupy the homestead, and was required to join with defendant in executing a satisfaction of the $2,000 mortgage, and he was required to pay off the $600 mortgage on the homestead and to pay one-half of the remainder of the $2,000 to his wife. In addition to the money she was to receive from this source, she was awarded $50 per month, to be paid by defendant until the further order of the court. If he refused to consent to the disposition of the $2,000 which the court made, he was required to pay $60 per month for the support of his wife and children, and also the taxes on the homestead and interest on the $600 mortgage thereon.

1. Defendant complains of the disposition made of the $2,000 note and mortgage. He contends that they belong to him; that his wife had no financial interest in them, and that a court has no power to compel a husband to divide his property with his wife in a judgment for separate maintenance.

It appears that in the fall of 1911 these parties bought a small farm near Minneapolis for $2,100. Twelve hundred dollars was paid by defendant and $900 by turning in a lot, the title to which stood in the name of both parties. Plaintiff and her children lived on the farm about 211⁄2 years. It was then sold for $3,000, and the note and mortgage in question represent part of the consideration of the sale.

Where two persons are named grantees in a deed, the presumption is that their interests in the land conveyed are equal. This presumption, however, is not conclusive and the true interest of each may be shown. Campau v. Campau, 44 Mich. 31, 5 N. W. 1062; Keuper v. Mette, 239 Ill. 586, 88 N. E. 218; Adams v. Leavens, 20 Conn. 73; Bittle v. Clement, 54 Atl. 138; In re McConnell, 197 Fed. 438; 38 Cyc. 74. The fact that grantees are husband and wife does not change the rule. Semper v. Coates, 93 Minn. 76, 100 N. W. 662; Kersten v. Kersten, 114 Minn. 24, 129 N. W. 1051. We find no evidence in the record tending to rebut the presumption that these parties are equal co-owners of the note and mortgage, aside from the fact that the greater portion of the purchase price of the farm was furnished by defendant. We think this fact alone is insufficient to overcome the presumption. Defendant may