Gilchrist v. Foxen, 95 Wis. 428

Gilchrist v. Foxen

95 Wis. 428 | Wis. | 1897

Cassoday, C. J.

1. The deed from the mother (Magdalena) to her daughter (Augustina), delivered and recorded August 31, 1885, contains provisions that it was given in consideration of the payment by the daughter of the prior mortgage on the premises of $150, and the support by her of her mother, “in good manner during her lifetime, and decent burial when dead.” Such being the express provisions of the deed so on record, it is very obvious that every person acquiring any right, title, or interest in the. premises, from, through, or under the daughter, or her husband, or both, by deed, mortgage, or otherwise, necessarily took and received the same subject to those provisions contained in the deed. Schwallbach v. C., M. & St. P. R. Co. 69 Wis. 292. It was there held that “ the recording of a deed is constructive notice of its existence and contents to all subsequent purchasers of the land, and renders them subject to whatever covenants therein run with the land.”

2. It necessarily follows that the two mortgages executed by the daughter and her husband to the plaintiff were both subject to such provisions in the deed. This being so, the foreclosure of such mortgages by this plaintiff (did not have the effect to cut off, nor in any way impair, such paramount rights secured to and reserved by Magdalena in her deed to her daughter, notwithstanding she was made a defendant in such foreclosure suit. Strobe v. Downer, 13 Wis. 10; Straight v. Harris, 14 Wis. 509. There is nothing in the record to show and there is no claim that the complaint in the foreclosure suit made any attack upon such prior and superior *436right of Magdalena, so secured and reserved in her deed. The service upon her was by publication, and she did not answer nor appear in the case. The statute declares, in effect, that, upon such foreclosure and sale and the confirmation thereof, the sheriff’s deed “ shall vest in the purchaser all the right, title, and interest of the mortgagor, his heirs, personal representatives, and assigns, in and to the premises sold, and shall be a bar to all claim, right, or equity of redemption therein, of and against the parties to such action, their heirs and personal representatives, and also against all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered.” R. S. sec. 3169. This statute “must be understood as referring to such rights and interests as were or might properly have been litigated in the foreclosure action.” Pelton v. Farmin, 18 Wis. 222. The result.of the decisions of this court is to the effect that a defendant’s prior and paramount right or title to the mortgaged premises cannot be properly determined in a foreclosure suit. The object of a foreclosure suit is not to try the titles alleged to be paramount to that of the mortgagor. If the party made, defendant, as claiming some interest subsequent to the mortgage, claims no such interest, he should disclaim, and the suit should be dismissed as to him. The setting up of a paramount title by such defendant is no answer to .the allegations made against him; and, if the plaintiff does not choose to litigate such alleged title in the foreclosure suit, he may properly raise the objection by demurrer. Pelton v. Farmin, 18 Wis. 222; Roberts v. Wood, 38 Wis. 60; Hekla F. Ins. Co. v. Morrison, 56 Wis. 133; Cook v. Goodyear, 79 Wis. 611. From these authorities it is very clear that, even had such provisions in the deed been fully complied with, yet that the defendant Foxen would not, by virtue of such sheriff’s deed, have acquired any of such prior and paramount right and *437title so secured and reserved to Magdalena in her deed to her daughter, unless he acquired the same by virtue of a merger of the title hereinafter to be considered.

3. But it stands admitted that such provisions in her deed were never complied with. On the contrary, neither the daughter, nor her husband, nor any one in their behalf, ever paid any part of the outstanding note and mortgage of $150 upon the premises, which, by the terms of the deed, they were to pay as a part of the consideration for the purchase; and so, August 3, 1889, the daughter and her husband, with the knowledge and acquiescence of the mother, conveyed away a portion of the land for the purpose of making such payment. In other words, they were thereby permitted to use a part of the land to pay such debt, and thereby diminish and lessen the security reserved in the deed from Magdalena to her daughter, without parting with anything of any value which they had not so received from the mother. In addition to such failure to pay that mortgage, it appears from the record that after the daughter had been dead for a year, and in October, 1891, the son-in-law, who had become badly indebted, sold and converted all his personal property into money and absconded from the state, leaving Magdalena the sole occupant of the premises and the dwelling house thereon; that after she had remained in the sole possession of the premises for two months, and in a destitute condition, and compelled to rely upon the charity of her neighbors for support, she was, in February, 1892, compelled to go and live with relatives in Chicago; that the plaintiff, finding the premises vacant and unoccupied, took possession in April, 1892, and placed a tenant in charge thereof; that, about a month after that, Magda-, lena returned from Chicago and demanded possession from such tenant, and the plaintiff, under the advice of counsel as to her prior and superior rights under her deed, surrendered such possession to Magdalena, and caused his tenant. *438feo attorn to and pay rent to her from that time down to November, 1892; that, pursuant to the advice of her counsel (who was the same person who subsequently bid in the premises on the foreclosure sale in the name of thé defendant Foxen), Magdalena did, November 5, 1892, commence the action mentioned in the foregoing statement, to divest all claim of right, title, or interest of any of the defendants therein, including this plaintiff; that November 16, 1892, Magdalena, under advice of her said counsel, settled that suit with the plaintiff, by his giving her $300, for which she gave him a warranty deed of the premises, and surrendered the possession thereof to him, as stated.

The question recurs whether the clause in the deed from Magdalena to her daughter, mentioned, was a condition subsequent, and, if so, whether such failures to perform, and such absconding of her son-in-law, and her exclusive possession for two months in 1892 and six months in 1893, and the suit to enforce her title as owner, and the settlement of the same, as mentioned, operated to reinvest the legal title to the property in her, the same as it was before she conveyed to her daughter. It will be observed that the deed of August 31, 1885, from Magdalena to her daughter, was not signed by the daughter, nor by any one but Magdalena. Nor does it contain any agreement on the part of the daughter to support her mother during her life, or for any time, or to bury her when dead. Nor does it contain any agreement on the part of the daughter, unless it may be said that, by accepting the deed, she assumed the payment of the $150 mortgage therein mentioned; but that can hardly be claimed, since it is merely mentioned as part of the consideration. The case is therefore distinguishable in this respect from Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 385; Morgan v. Loomis, 78 Wis. 594; Beckman v. Beckman, 86 Wis. 655; Donnelly v. Eastes, 94 Wis. 390. Accordingly, it has been held that, “ in a voluntary conveyance, *439words may be held to be a condition, which, if used in a ■conveyance made for a valuable consideration, would be held a covenant only.” Horner v. C., M. & St. P. R. Co. 38 Wis. 174. In that case it was held, in effect, that, as the language of the deed showed that the grant was solely for depot and other railroad purposes, it “must be construed as stating conditions subsequent.” Page 177. So, it was held in that ■case that “ it is not essential to a valid condition that, in case of a breach thereof, a right of re-entry be expressly reserved in the deed, or that it be expressed therein that the estate of the grantee shall terminate with a breach of the condition.” Page 173. To the same effect: Drew v. Baldwin, 48 Wis. 529; Blake v. Blake, 56 Wis. 392; Delong v. Delong, 56 Wis. 514; Pepin Co. v. Prindle, 61 Wis. 301, 305; Cross v. Carson, 8 Blackf. 138; S. C. 44 Am. Dec. 742; Wilson v. Wilson, 38 Me. 18; S. C. 50 Am. Dec. 227. In Blake v. Blake, supra, it satisfactorily appeared that the “ deed which had been destroyed contained conditions that the grantee should reside with his parents, the grantors named therein, on the lands, and should work and improve the same, and that he should support his parents during their lives,” and that the grantee should pay $200 to one of his sisters therein named; and it was held that such conditions were ■“ conditions subsequent, within the rules in the Horner Case,” supra, “ and that Alanson 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; . . . 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.” In Delong v. Delong, supra, “parents conveyed lands to their son and his wife, subject to, and for no other consideration than, certain conditions expressed in the conveyance, intended to secure the means for the sup*440port and maintenance of the grantors, and to provide for the distribution of their estate after their death. Held, that such conditions were not mere covenants, but were conditions subsequent, upon a breach of which the grantors might re-enter upon the lands.” Erom these adjudications it logically follows that the clause in the deed from Magdalena to her daughter constituted a condition subsequent, for the breach of which Magdalena lawfully re-entered, and that the legal title thereupon became lawfully revested in her. That title she conveyed to the plaintiff by warranty deed, which was duly recorded November IT, 1892, as stated.

4. The question recurs as to whether his rights, by virtue of his being plaintiff in the judgment of foreclosure and sale of the two mortgages mentioned, became merged in his legal title so acquired from Magdalena by the deed last mentioned. We are clearly of the opinion that they did not. The plaintiff had the right, in equity, notwithstanding his deed of the legal title, to sell the land on the foreclosure-judgment, for the purpose of perfecting his title of record. Morgan v. Hammett, 34 Wis. 514; Aiken v. M. & St. P. R. Co. 37 Wis. 469; Scott v. Webster, 44 Wis. 185. But it is manifest that no substantial right to the land passed by the-sheriff’s sale and sheriff’s deed to the defendant Foxen; and hence the court very properly compelled the plaintiff, as a condition of the relief granted, to pay into court the money received by him on such sale, with interest, as adjudged.

By the Oourt.— The judgment of the circuit court is affirmed.

Pinney, J., dissents.