Bishop v. Aldrich

48 Wis. 619 | Wis. | 1880

Ltost, J.

In Bogie v. Bogie, 41 Wis., 209, it was held, on principle and authority, that an entire failure to perform covenants for support and maintenance, which constituted the consideration for a conveyance, was sufficient to authorize a court of equity to rescind the conveyance. It would be useless to repeat here the reasoning, or again refer to the authorities, upon which the j udgment in that case was based. The rule of Bogie v. Bogie was reasserted in Bresnahan v. Bresnahan, 46 Wis., 380, and must be regarded as the settled law of this state.

This case is not distinguishable in principle from those above cited. The covenants of Mrs. Carlton to support and maintain the plaintiffs were not assignable, and died with her. Her death, a few months after the conveyance, put an end to the obligation to maintain the plaintiffs; and, if the conveyance stands, her heirs would take the land conveyed to her, subject to the life lease, without any obligation on their part to perform her covenants. This would be most inequitable. The use of the property may or may not be sufficient to maintain the plaintiffs; but whether it is or not, the principiéis the same. The consideration for the conveyance has failed, and, under the circumstances peculiar to cases of this class, the conveyance ought to fail with it.

The fact that Mrs. Carlton made a life lease (so called) of the land to the plaintiffs, is not important. That instrument is not strictly a lease, but a sort of defeasance, giving a right of entry only upon failure of Mrs. Carlton to perform her covenants. It is but a security for such performance, like the agreement in the Bogie case, or the bond and mortgage in the Bresnahan case, and does not affect the relief to which the plaintiffs would be entitled had it not been given. If Mrs. Carlton expended more for the support of the plaintiffs than she received from them during the few months that she lived after the conveyance was made to her, it is probable that the court may make her personal representative a party to the action, ascertain the amount, and require it to be paid' as a condition of relief.

It is urged that the plaintiffs should have set. out the conveyance, and lease or defeasance, in their complaint. Whether they ought to have done so is a question that cannot be determined on general demurrer. That defect (if it be one) can only be reached by a motion to mate the pleading more definite and certain. The only question on this demurrer is, Does the complaint allege facts sufficient to constitute a cause of action? This question must be answered in the affirmative.

It was undoubtedly competent for the court to require the appellants to pay ten dollars in addition to the taxable costs of the order, as a condition to granting them leave to answer

By the Court. — Order affirmed.