19 N.W.2d 246 | Wis. | 1945
Action by Raymond J. Feest and Charlotte B. Feest, his wife, against Hillcrest Cemetery, Inc., and others, to foreclose a land contract. From a judgment in favor of the plaintiffs the defendants Sunset Ridge, Inc., George W. Taylor and Grace Taylor, his wife, appeal. The facts are stated in the opinion. The action was brought for strict foreclosure of a contract purporting to evidence the purchase by the defendant Hillcrest Cemetery, Inc., hereinafter referred to as "Hillcrest," from the plaintiffs of five burial lots in Hillcrest. *162 The other defendants are Sunset Ridge, Inc., a cemetery corporation, to which the land comprised in Hillcrest was conveyed by the receiver appointed by the municipal court of Kenosha county in an action entitled John Erlands against Hillcrest Cemetery, Inc., and George W. Taylor and Grace Taylor to whom the Hillcrest's interest in the cemetery land was conveyed by sheriff's deed executed pursuant to sale on an execution issued on a money judgment duly entered against Hillcrest. Judgment was entered October 14, 1944, requiring the defendants to pay the amount due according to the terms of the contract on or before October 15th, and barring them from all interest in the lots unless the sum was so paid.
The transaction between the plaintiffs and Hillcrest out of which the suit arose was as next stated. The plaintiffs loaned $500 to Hillcrest Cemetery, Inc., on which Hillcrest was to pay them ten per cent interest. The undisputed evidence so establishes, and the trial judge in a memorandum decision filed so stated, although this fact was not incorporated in his formal findings. To integrate the transaction three instruments in writing were executed: (1) A judgment note was executed by Hillcrest to plaintiffs for $550.85, due in three years after date, with interest at six per cent after date until paid. The amount of this note when due was $650, which amounted to $500 and interest at ten per cent for three years; (2) Hillcrest executed to plaintiffs running to them and their heirs a deed to five cemetery lots to be used solely for the burial of the dead. The deed also provided that the grantees should never mortgage the lots or use them for any purpose but for burial of the dead and erection of monuments or markers thereon, and warranted that the grantors had title to the lots in fee simple and right to convey them for the uses specified in the deed and that they had right to sell and convey them for said uses. The deed also contained a covenant that the grantor would perpetually maintain the care of the lots according to *163 the cemetery rules and forever maintain the cemetery grounds as a burial park; (3) an instrument in form a land contract in terms substantially the same as those ordinarily used in case of the purchase of land whereby Hillcrest agreed to pay the plaintiffs $650 and the plaintiffs on such payment agreed to convey the lots to Hillcrest.
We consider that the land contract and cemetery deed operated merely to secure payment of the sum loaned and interest thereon as agreed.
Hillcrest made no answer to the complaint. Sunset Ridge, Inc., and the Taylors filed identical answers alleging that the contract sued upon is void because ultra vires. This claim is based on the hypothesis that Hillcrest had only such power as is conferred on cemetery corporations by ch. 157, Stats., and that chapter confers no power to execute the instruments executed by the instant parties to integrate this transaction, and that the transaction was contrary to public policy.
Hillcrest was a commercial cemetery corporation organized under ch. 180, Stats. Such organization was proper notwithstanding that ch. 157, Stats., was in existence when it was organized, and provided for another class of cemetery corporations.Hillier v. Lake View Memorial Park,
The defendants claim that under the terms of the cemetery deed the rights of the plaintiffs are not assignable because the deed runs only to the plaintiffs and their heirs, instead of to the plaintiffs, their heirs, and assigns. If the deed conveys an estate in land it conveys an estate of inheritance, and such an estate is one in fee simple under sec.
The answers filed alleged that the contract sued upon is usurious, because by its terms it exacts more than ten per cent interest as condition of releasing lots from the contract or reconveyance of all the lots if demanded before due date. This claim is not tenable if for no other reason because a corporation cannot assert the defense of usury. Sec. 115.06, Stats. And it cannot be asserted without tender of the principal sum. Sec. 115.08.
We believe the above sufficiently covers the case.
By the Court. — The judgment of the municipal court is affirmed. *166