Ludwig v. Ludwig, 170 Wis. 41

170 Wis. 41 | Wis. | 1919

Lead Opinion

The following opinions were filed May 27, 1919:

Eschweiler, J.

This judgment, so far as it relates to the amounts due or to become due under the promise to pay $100 a month, must be supported, if at all, as a basis for the relief granted in the court below upon the testimony as to conversations between the defendants and the plaintiffs in 1908, just prior to the moving by plaintiffs into the dwelling in question, and in 1910 at the time the $4,000 loan was made. This testimony was in substance that at an interview between them in 1908 at the rooming house where plaintiffs were then living, the defendants Roy and Emma said: “If you will sell out here and give up the place and move to Downer avenue, we will give you $100 per month as long as-either of you live; we will keep up repairs.and keep up the taxes, and you can have the premises as long as either of you live, undisputed by any one.” The defendant Roy testified the same way as to the arrangement, with the additional phrases that “we [meaning Roy and Emma] will spend a month or six weeks a year with you there and see that you get that money at the end of every month. We guarantee to send you $100 a month.” A son-in-law of the plaintiff testified substantially as above recited, and gave as his recollection of the conversation that the defendants also told the plaintiffs that they, the plaintiffs, “were to go up and enjoy that new home.”

From this testimony and from the other facts and circumstances in the record before us we are unable to find a sufficient foundation upon which can be based any of the relief granted by the court below upon this branch of the case.

In order to require or expect a court of equity to enforce specific performance of an executory contract such as was here involved by a promise to pay the $100 per month during the lifetime of the beneficiaries thereof, there should certainly be as the basis for such relief at least something that approaches an adequate consideration. Hibbert v. Mackinnon, 79 Wis. 673, 680, 49 N. W. 21; Hay v. Lewis, 39 Wis. 364, 369; Hanson v. Michelson, 19 Wis. 498, 508; Smith v. Wood, 12 Wis. 382; 36 Cyc. 545; Pomeroy, Eq. Jur. § 1293; Waterman, Spec. Perf. § 186; Roseville T. Co. v. Curtiss (N. J. Ch.) 92 Atl. 580.

The plaintiffs on their part promised nothing; there was no obligation on their part to take care of and look after the premises; no agreement to remain any specified length of time on the premises, or even to care for the same while so ’occupying the same; they were at liberty to leave at any time, and the defendants would have been without any remedy whatsoever as against them for so terminating the relationship. The plaintiffs did not then agree to do anything in the shape of repairs; indeed the defendants themselves assumed that obligation. Though it is recited in the findings of fact that the plaintiffs did make permanent and valuable improvements on the property at their own expense, we find no evidence in the record to support such a finding. Neither is there support in the record for the finding that there was a material sacrifice by the plaintiffs in moving to the Downer avenue property or any valuable consideration on their part performed or to be performed.

The promise to pay this $100 per month, therefore, was a pure gratuity on the part of the defendant Roy; good, of course, so long as he elected to abide by it, but subject to his right to revoke it at any time as he did by failure to carry out the same. As to the defendant Emma E. Ludzvig the promise was still more in the nature of a gratuity, and, even were it to be considered as savoring of a contract, it was of such a nature that she, as a married woman, could not enter into so as to be legally bound thereby.

The agreement or understanding between the parties, if what took place amounts to an agreement, was not in writing and therefore void under sec. 2304, Stats. There is no element of performance on the part of the plaintiffs in reliance upon such contract,' or of fraud in the repudiating thereof, as brings it within the provisions of sec. 2305, Stats., or within any of the well established rules regulating the exercise of equitable powers of a court to enforce contracts.

Appellant also asserts that this real estate was considered and treated by the defendants as their homestead and that therefore there could be no incumbering of the same as against the defendant Emma without her assent thereto, evidenced by her signature, under the provisions of sec. 2203, Stats., defining a homestead, and under such decisions as Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445. During all this time, however, the defendants Roy and Emma were residents of Illinois and not of Wisconsin. The benefits of the homestead exemption can, under the provisions of the section itself-, be asserted only on behalf of those who are residents of this state. The defendant Emma does not meet the call of the statute and cannot, therefore, rely upon the same.

There is sufficient support for so much of the judgment as impressed an equitable lien for the balance due upon the $4,000 loan made by the plaintiffs to defendant Roy in April, 1910. As against hita, he received the money upon this assurance, relied upon by his mother, that a mortgage should be given on this land to secure such loan, and he ought not to be heard to the contrary, nor does he now contest such claim. The evidence is sufficient to warrant the finding of the trial court that the loan was made at the request of both Emma and Roy. Its proceeds went into property in which both defendants were conducting their separate lines of business and therefore sufficient to make such agreement binding upon Emma in spite of her coverture. So much of the judgment as makes the balance found due on this loan a prior lien upon the interests of either or both defendants Emma and Roy and prior and superior to any lien claimed by defendant Emma under her foreclosure proceedings against Roy, and all provisions for the enforcement by plaintiff of such lien by the usual proceedings in foreclosure for a personal judgment against the defendants Emma and Roy for any deficiency that might arise upon any such sale, will not be altered.

The judgment, however, must be set aside so far as it declares that the plaintiff is‘entitled to the use, possession, or occupancy of the premises during the balance of her life; that declares that plaintiff has any such right that she may enforce herein requiring defendants to pay the $100 per month; that interferes with the prior foreclosure in the action by defendant Emma on her trust deeds other than declares such judgment subordinate to the one to be entered herein.

By the Court. — Judgment reversed, and cause remanded Ayith directions to enter judgment in accordance with this opinion.

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Concurrence Opinion

Kerwin, J.

{concurring). I concur in the opinion in this cáse only upon the ground that the material findings are not supported by the evidence. If I understand the opinion of the court correctly, it is based mainly upon that proposition. Individually I am of opinion that the findings are supported by sufficient evidence, but Í am inclined to defer to the opinion of my brethren upon that point. If the findings are supported by sufficient evidence, I am convinced that the judgment of the court below is right and should be affirmed on the authority of Henrikson v. Henrikson, 143 Wis. 314, 127 N. W. 962, and cases there cited.

A motion for a rehearing was denied, with $25 costs, on November 4, 1919.