Blake v. Blake

56 Wis. 392 | Wis. | 1882

LyoN, J.

It was held by this court in Bogie v. Bogie, 41 Wis., 209, and again in Bresnahan v. Bresnahan, 46 Wis., 385, that a court of equity will freely rescind a conveyance by parents to a son in consideration of the covenant of the son to support and maintain them, in case the son fails to perform his covenant in that behalf. The rule rests upon principles so equitable and humane that it may well be hoped it will never be disturbed. It must control the decision of this case. If, therefore, the deed from the defendant Alcm-son Blake to his son, the plaintiff, contained the condition that the plaintiff should reside upon the premises with, and support and maintain, his parents during their natural lives, such deed should be rescinded. Such condition has the force and effect of a covenant by the plaintiff to support and maintain them, and he has entirely failed to do so: at least, since December, 1868. Hence the controlling question in the case is, Did the d§ed contain such condition or covenant? The only direct testimony in the negative is that of the plaintiff himself, who testifies that the instrument contained nothing of the kind. The defendants Alcmson, Elizabeth, and O. M. Blake, a sister and a nephew of the plaintiff, each testified that they had read the deed (Some of them several times), and each testified positively that it contained the conditions in question.

Mr. Witter, who drew the deed, testifies that there were conditions affecting the consideration of the deed; that he advised the insertion of the same in the instrument itself; that his impression is such conditions had something to do with the support of Alcmson and wife; and that, whatever the conditions were, he has no doubt he put them in the deed. This witness stands disinterested between the parties. He is a most intelligent gentleman, and gave his testimony with great candor and caution. He is not positive as to what conditions he wrote in the deed, for many years elapsed before he was called to testify, and the particulars of the transaction had faded from his memory. Because his memory of the transaction is somewhat indistinct we do not give to.his testimony the controlling weight that was given in Bogie v. Bogie, 35 Wis., 659, to the testimony of the justice who drew the instruments there in question. Tet the testimony of Mr. Witter is very significant, and tends quite strongly to corroborate that of the defendants and their witnesses.

Moreover, it is apparent from all the evidence that the defendants Alcmson and Elizabeth were very solicitous for the welfare of their children, and anxious to keep their family together; hence it is a reasonable probability that they were influenced by such considerations in making the agreement with the plaintiff. We should reasonably expect to find in the deed based upon that agreement made by Alcmson to tbe plaintiff, just sueb conditions as tbe defendants and tbeir witnesses testify positively it contained, and wbicb Mr. Witter evidently believes it contained. The learned circuit judge seems to have made some application in the case of the maxim, omnia prmmmuntur contra spoliatorem, but we do not think it applicable. The defendant Elizabeth, who destroyed tbe deed, bad never executed it, and was not bound by any parol agreement to execute it. Sbe makes no defense to the action, and neither her husband nor <7. M. Blake, who do defend, had anything to do with its destruction. No presumption ought to be made against them because of the destruction of the instrument, notwithstanding a recovery by them in the action may indirectly inure to the benefit of Elizabeth.

Some admissions and collateral facts were proved by the parties in support of their respective theories of the contents of the deed. These are not very important, and it is sufficient to say that we think the testimony of this character, pro and con, is about balanced. From the best investigation of the testimony we have been able to make, we conclude that there is a clear and satisfactory preponderance of evidence in support of the proposition that the deed contained the conditions alleged in the answer.

There is another aspect of the case which requires to be noticed, because it affects the accounting. We think it sufficiently appears that the conditions which we find the deed contained — especially that for the maintenance of plaintiff’s parents — are conditions subsequent within the rules laid down in Horner v. C., M. & St. P. Railway Co., 38 Wis., 165, and that Alarnon Blake substantially re-entered upon the premises for conditions broken, when the plaintiff left him, and he assumed exclusive control of the whole premises in 1868.

Notwithstanding the strict rule which prevails in construing conditions subsequent, it is not difficult to hold that a condition, the breach of which is good ground in equity for canceling the conveyance of which it is a part, is a condition subsequent, unless there is something in the instrument to show that such a condition was not intended. 'We find nothing of that kind in the contents of the deed under consideration, so far as the proofs disclose such contents.

The basis of the accounting in favor of the plaintiff was a large sum of money received by the defendants Alcmson and 0. M. Slake for timber taken by them from the land in controversy. This timber was taken from the land long after condition broken by the plaintiff and re-entry by Alcmson, and hence long after the plaintiff ceased to have any interest in the land. He is not, therefore, entitled to any of the proceeds of such timber, and should have no credit therefor. Neither should he be charged with the $200 which he failed to pay his sister. In short, we see no occasion here for any accounting in equity. If the plaintiff is the owner of the property which he purchased and left on the farm, or if he has a cause of action for any money paid by him to or for his father, his remedy is ample and complete at law.

The judgment of the circuit court must be reversed and the cause will be remanded with directions to that court to dismiss the complaint, and to give judgment for the defendants on their counterclaim for the relief therein demanded.

By the Oourt.— So ordered.