99 Wis. 469 | Wis. | 1898
Considerable evidence was produced at the trial showing the relations existing between the parties, and .how completely the family arrangement into which they
The agreement manifestly required the defendant Bostralc,. in consideration of the conveyance of the lands then made to him by the plaintiffs, to support and care for his aged and infirm parents in sickness and health during their natural lives, or the life of either of them; to furnish to them on the-15th of November in each year, and annually thereafter, certain specified articles of food, and the use of certain portions of the dwelling, with free ingress and egress therefrom to any part of the building; to furnish in the house plenty of good firewood and water ready for use at all times; and “to care for them in all things and furnish them with a doctor and medicine when needed, and at death with a decent burial.” They were transferring and conveying to their son their farm and home with which they had provided themselves by the care and industry of a lifetime,
It would manifestly be unreasonable to hold that, after the defendant Bostrak had secured the title to this valuable farm, and the personal property transferred by the bill of sale, he might abandon the plaintiffs, and leave them to care for themselves as best they might, and still retain the property conveyed to him. The property so conveyed and transferred to the defendant was transferred and conveyed upon
The printed case purports to contain all of the evidence, and Ave do not see anything to warrant the conclusion that the plaintiffs had waived their right to insist upon the performance of the contract in respect to the material and substantial matters indicated, or to any relief for a breach of its provisions. The action brought by the plaintiff Mary Knutson to foreclose the mortgage executed by the defendant to her was dismissed before the present action was instituted. The bringing of that action, and the dismissal thereof, was certainly no waiver of or bar to the present equitable action to obtain the relief therebj’ sought. The right of the plaintiffs to seek and have a rescission in equity of the contract, deed, and bill of sale as for a breach of condition subsequent still remained. The plaintiffs were not restricted or limited to an action for the foreclosure of either of the mortgages executed to secure the performance of the agreement, or the payment of the $2,000 note executed to the plaintiff Mary Knutson.
Eor the reasons stated, we think that the judgment appealed from dismissing the plaintiffs’ complaint is erroneous, and must be reversed. The defendant Susan Cady and the defendant Stoughton State Bank do not appear to have answered the plaintiffs’ complaint, or to have contested their right to the relief they have claimed, and the equities between the plaintiffs and these parties, whatever they may be, have not been determined.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded to that court, with directions to render judgment rescinding and setting aside the