165 Wis. 171 | Wis. | 1917
There is practically no dispute upon the facts. The errors assigned are upon refusal to find conclusions of law proposed by appellants and in the conclusions of law made upon the facts found. The contention relates to the remedy.
It is apparent from the record that the court below was in doubt as to what relief should be granted upon the established facts, but finally, after much consideration, concluded to order foreclosure of the mortgage in lieu of ordering judgment canceling the deed, contract, and mortgage and restoring the title to the property to the original grantors and thmr heirs.
We cannot say upon the facts found that this conclusion is wrong, and the only question is whether the remedy adopted by the court was proper under the established facts.
The contention of appellants is that rescission was the only proper remedy and that the court below was in error in ordering foreclosure of the mortgage, and they rely mainly upon Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671; Lowrey v. Finkleston, 149 Wis. 222, 134 N. W. 344; Bogie v. Bogie, 41 Wis. 209; and Young v. Young, 157 Wis. 424, 147 N. W. 361.
It is settled law in this court that conveyances made by aged people in consideration of support and care may be deemed to be conveyances upon condition subsequent and will, upon facts similar to those in the foregoing cases, be set aside by a court of equity upon proof of substantial failure to perform.
It does not follow, however, that other adequate relief cannot be granted when the facts in the case require it in order to do equity between all parties. Morgan v. Loomis, 78 Wis. 594, 48 N. W. 109; Donnelly v. Bastes, 94 Wis. 390, 69 N. W. 157; Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671; Maginnis v. Knickerbocker I. Co. 112 Wis. 385, 88 N. W. 300; Lowrey v. Finkleston, 149 Wis. 222, 134 N. W. 344; Mootz v. Petraschefski, 137 Wis. 315, 118 N. W. 865; Western L. & C. Co. v. Copper River L. Co. 138 Wis. 404, 120 N. W. 277; Burgson v. Jacobson, 124 Wis. 295, 102 N. W. 563; Keister v. Cubine, 101 Va. 768, 45 S. E. 285; 13 Cyc. 701; Marvel v. Phillips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. A. 416.
In Lowrey v. Finkleston it is said: “The agreement will be treated in equity as a condition subsequent, and, if substantially broken through failure of the grantor to perform,' the conveyance will be set aside.” 149 Wis. 222, 230, 134 N. W. 344.
In Brenger v. Brenger, 142 Wis. 26, 39, 125 N. W. 109, the following language is used: “In case of a conveyance by an old person of his property to another to secure from such other support and attention during the rest of his days, and the consideration wholly failing, without reasonable excuse on the part of the grantee, a court of equity will, by rules for construction, hold the conveyance to have been made upon condition subsequent and deal with the situation accordingly.”
In Burgson v. Jacobson, 124 Wis. 295, 102 N. W. 563, it is held that a condition subsequent, when relied upon to work a forfeiture, must be created by express terms or clear implication, citing 2 Washb. Real Prop. (4th ed.) 7; and the court says: “In this class of cases the obligation is held to be a condition subsequent, because from the nature of the contract the parties must have intended to create a condition subsequent, since otherwise upon a breach the purpose of the agreement would be defeated and the grantor have no adequate remedy.” See 124 Wis. 299, 300.
Young v. Young, 157 Wis. 424, 147 N. W. 361, and Mootz v. Petraschefski, 137 Wis. 315, 118 N. W. 865, hold that
In Maginnis v. Knickerbocker I. Co. 112 Wis. 385, 88 N. W. 300, there was an express condition and provision that if the condition should at any time be broken there should be a reverter to the grantor, his, heirs and assigns. The condition subsequent was in fact broken and there was a re-entry. In this case the equitable doctrine is recognized and declared to the effect that, although the condition subsequent may be broken and a re-entry occur, still the title may be subject to control in equity where justice and equity require it in order to adequately, measure the loss. .
In Bogie v. Bogie, 41 Wis. 209, the provision respecting duty of grantee rested in covenant and not in condition, yet the court rescinded the sale in order to do equity.
While we do not think it necessary to cite foreign cases we call attention to Keister v. Cubine, 101 Va. 768, 45 S. E. 285, as squarely in point.
The- plaintiff Ingimond Danielson at the time of commencement of this action was about ninety-one years of age. The agreement to support and care for the parents by Nicholas was kept up to the time Nicholas committed suicide. This unfortunate event prevented him from further performance of the contract, and it seems the administrator of Nicholas offered or made some effort to further perform the contract between Nicholas, Ingimond, and Dora Danielson. Nicholas performed the contract for more than eight years before his death, June 26, 1911, and Ingimond and Dora from June 26, 1911, to June 8, 1914, continued to live on the farm and enjoy the rents and profits thereof and had the benefit of the contract, at least in part, during that time. Plaintiff Ingimond made no claim for rescission until this suit was commenced and Dora never made claim for rescission. After the death of Nicholas, plaintiffs Bertha Pay-
It is clear from the record and undisputed facts that rescission of the deed and restoration of title would be inequitable, and that foreclosure of the mortgage as ordered by the court below fully protects the plaintiff Ingimond Dan-ielson and all parties interested and is just and equitable.
It follows that the judgment of the court below is right and must be affirmed.
By the Gourt. — The judgment is affirmed.