112 Wis. 385 | Wis. | 1901
The statement of facts shows that, though there was no controversy but 'that Uhen conveyed the land to Boyle upon conditions subsequent which were breached, and reclaimed the property by a distinct assertion of his rights — so far as a reclaimer thereof was possible under the circumstances — before the conveyance to appellant, it was held that his first grantee was the owner of the property and entitled to recover costs of the appellant. That conclusion vtas reached upon several grounds which we will consider.
The principal reason suggested, why it was supposed appellant was not entitled to recover, is that a court of equity will not exercise its jurisdiction to declare or aid a forfeiture, but leave the parties to their remedy at law. We are unable to perceive how that principle applies to this case. Appellant did not seek by her suit to reclaim the property in controversy. Her complaint and the evidence in support of it, at every point, repel any such idea. The pleading distinctly declared that plaintiff was the absolute owner of the property in dispute and in possession thereof. To establish the truth thereof, proof was made that her grantor, under whom all parties to the suit claimed title, sold the.property upon conditions subsequent to the grantor of the ice company; that such conditions were breached; and that such grantor made re-entry for the purpose of enforcing a forfeiture of the property to him, and then made a conveyance thereof to appellant. There can be no question but that such circumstances caused the title conveyed to Boyle to revert to
“ If there were a rightful entry for condition broken, so that the estate revested under the terms of the deed, or even if the title revested under the terms of the deed without a re-entry, the court is yet not powerless to relieve the defendant from the consequences thereof.”
That was said having in mind that, regardless of the express intent of the parties, or the intention inferable from the language used by them, applying strict legal principles thereto, which would effect a reversion of the title, a court
“ Law, as a science, would be unworthy of the name if it did not, to some extent, provide the means of preventing the mischiefs of improvidence, rashness, and blind confidence and credulity on the one side, and of skill, avarice, cunning, and a gross violation of the principles of morals and conscience on the other. There are many cases in*396 which courts of equity interfere upon mixed grounds of this sort. There is no more intrinsic sanctity in stipulations by contract than in any other solemn acts of parties which are constantly interfered with by courts of equity upon the broad ground of public policy or the pure principles of natural justice.”
That was said by the learned author with reference to situations not involving any fraud, either in fact or in law.
The rule of equity discussed is not one of universal application. It does not extend beyond situations where there is some room for saying the conditions were inserted to stand as security, either for the payment of money or the performance of some promise, damages for a breach of which are susceptible of ascertainment by some definite rule, and the doing of the particular thing, or the doing thereof at a particular time, was not the principal object secured by the condition. 2 Story, Eq. Jur. (13th ed.), § 1321; 2 Washb. Real Prop. (5th ed.), 24; Gates v. Parmly, 93 Wis. 294; Nelson v. Stephens, 107 Wis. 136; Donnelly v. Eastes, 94 Wis. 390. Courts and text-writers acknowledge the limitation mentioned to be distinctly marked. This language is used in 2 Story, Eq. Jur. (13th ed.), § 1321:
“ It is admitted, indeed, that where the condition or forfeiture is merely a security for the nonpayment of money, there it is to be treated as a mere security and in the nature of a penalty, and is accordingly relievable. But if the forfeiture arises from the breach of any other covenants of a collateral nature, as for example of a covenant to repair, there, although compensation might be ascertained, . . . yet it has been held that courts of equity ought not to relieve, but should leave the parties to their remedy at law.”
The subject was discussed at some length in Klein v. Insurance Co. 104 U. S. 88, where it was held that the doctrine, that the consequences of nonperformance of a condition precedent are relievable in equity upon the basis of a money compensation for damages suffered, has no application to a case where the condition was inserted in the contract to
It is not strictly accurate to say, expressly or by inference, that relief from a breach of condition subsequent can be granted merely because a stipulation for a forfeiture was inserted in the contract as a security. Nelson v. Stephens, 107 Wis. 145. It must stand as security for the payment of money or for the performance of something the breach of which can be definitely measured in money, the doing of the particular thing, or the doing of it at a particular time, not being by the contract expressly made material, or, in other words, of the essence thereof. There is no better illustration of this than the ordinary agreement to pay a certain sum of money at a particular time upon a land contract, coupled with a condition of forfeiture in case of the nonpayment according to the agreement. Ordinarily it is held that the payment of the money is the principal thing. Therefore, equity will give compensation for the breach as to time by the usual rules for measuring loss caused by a breach of an
It is said by Judge Story that the English courts hold that in all cases of forfeiture for the breach of any covenant other than the covenant to pay rent, no relief ought to be granted in equity unless upon the ground of accident, mistake, fraud, or surprise, although the breach is capable of a just compensation. 2 Story, Eq. Jur. (13th ed.), § 1323. A somewhat broader doctrine than that has prevailed in the courts of this country, care being exercised, as indicated in Klein v. Insurance Co. 104 U. S. 88, not to substitute a contract of their own for the one the parties made so as to prevent them from having the thing made by them the very essence of their agreement. Probably as valuable a discussion of the scope of the rule, as recognized generally in this country, as can be found, is in the opinion of Redfield, C. J., in Henry v. Tupper, 29 Vt. 358. In Grigg v. Landis, 21 N. J. Eq. 494, it was held that a court cannot relieve from
‘ It not to be supposed that a court of equity will lightly dispense with contracts made between competent parties, and substitute other agreements more in accordance with variable rules of right and conscience. Such contracts will be enforced according to the intention of the parties expressed and implied, unless it can be shown that thereby some hardship or wrong, not within the presumed contemplation of the parties at the time, will result from such enforcement.’
From what has been said it seems clear that the doctrine, that a court of equity may relieve a party from the consequences to him of his breach of a condition subsequent, does not apply to the facts of this case. The condition was not inserted in the deed to secure the payment of money, nor the performance of any act that could be substantially performed by the payment of money damages. The condition was not only to inclose the granted premises by a good and sufficient legal fence, but it was to maintain the same forever. The grantee agreed to put in culverts where the cross drainage ditches were intercepted by the railway roadbed, and put in a suitable crossing where • desired by the grantor, with substantial gates in the side fences, and, by inference, to maintain such connecting culverts, crossing, and gates perpetually. There is no rule by which damages for failure to do those things can be accurately measured in money. Moreover, it is manifest that the performance of the acts mentioned was made a principal thing, a matter of the very essence of the contract. The
‘If a man makes a lease for life upon condition that the lease shall be forfeited if the lessee assigns or aliens it without license, and afterwards the lessee doth assign it without license, that is a forfeiture; and such a forfeiture against which the court cannot relieve, because it is not known what shall be the measure of damages; for the court never relieves but in cases where it can give some compensation in damages, and where there is some rule to be the measure of such damages, to avoid being arbitrary.’
That was quoted with approval in Sanders v. Pope, 12 Ves. 281, and is found often referred to in American decisions. The idea running through all the authorities is that one of the essentials to the application of the doctrine, that a court of equity may relieve from the consequences of a breach of a condition subsequent, is that the damages flowing from the breach must be such that the court can measure the same in money by some established rule.
If the breach of such a condition as those involved in this case could be under some circumstances dealt with by a court of equity, so as to save the wrongdoer from the legal consequences thereof, respondents would still have difficulty, for equity does not use its jurisdiction to save a party in such a case, if his default was wilful or inexcusable. 1 Jones, Real Prop. § 732. The doctrine applies that he who seeks equity must apply with clean hands.' There must be grounds for equitable relief falling within the scope of the jurisdiction of the court, and the circumstances of the par
It is suggested that Uhen waived performance of tbe conditions of tbe agreement, and that his re-entry was not rightful on that account. It is elementary that a person circumstanced as he was may lose the benefit of the condition of his grant by an express or implied waiver thereof. Andrews v. Senter, 32 Me. 394; Ludlow v. N. Y. & H. R. Co. 12 Barb. 440; Guild v. Richards, 16 Gray, 309; Hubbard v. Hubbard, 97 Mass. 188; Sharon I. Co. v. Erie, 41 Pa. St. 341; Grigg v. Landis, 21 N. J. Eq. 494; Bonniwell v. Madison, 107 Iowa, 85; 1 Jones, Real Prop. § 699. However, the record before us does not disclose evidence to establish a waiver. Mere silence or delay is not sufficient for that purpose any more than to create an estoppel which will prevent the assertion of a right. That was all there was in this'case. Where the benefit of a condition subsequent has been adjudged lost by silence or delay, the person failing to perform .relied upon the attitude of his obligee as evincing consent, and incurred expense or placed himself in such a situation by reason thereof that a change of the apparent position of such obligee, -if given effect, would seriously prejudice-the obligor. Ludlow v. N. Y. & H. R. Co., supra, is a good illustration. The plaintiff conveyed land for right of way, to a railway company, upon condition of its road being completed over the premises on or before a particular day named in the conveyance. The condition was not satisfied. The grantor failed to claim the benefit of the condition for two years after the breach. He kept silent during that time as to any intention to claim a forfeiture, and in the meantime, to his knowledge, the grantee actually constructed the road as provided in the grant. The court held that the condition of the grant was waived by the conduct of the grantor, not because bf mere delay or silence, but because such conduct induced the grantee to expend money which would be lost if he were
Further discussion of this branch of the case, or citation of authority, seems unnecessary. There is some ground for saying that the demand for the construction of the fence, long after the breach in respect to the culverts, indicated a purpose to submit permanently to the method adopted by the grantee for conducting water from the cross drainage ditches off from the grantor’s land, so that, if such demand had been complied with, all the conditions of the deed would be deemed waived. Put the fence was not constructed. The act of building a fence inclosing the center seventeen feet of the premises was such a manifestly intentional disregard of the obligations contained in the deed, that the grantor lost no rights merely by not objecting thereto. It has never been held that an open, intentional violation of the obligations of a grant is sufficient in equity, coupled with mere silence on the part of the obligee, to constitute a waiver of strict performance.
The only other ground upon which judgment was awarded to respondents is that the premises in controversy were entered upon by consent of the ice company and the railway
It follows from what has been said that at the time of the commencement of this action appellant was the owner in fee simple and in possession of the premises described in the complaint, and that, under existing circumstances, she was entitled to invoke the jurisdiction of equity to quiet her title thereto against the defendants and to enjoin them from interfering with her possession thereof. The case seems clear upon all the points involved.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in favor of the plaintiff according to the prayer of the complaint.
I do not understand this to be a bill in equity brought by the defendants, or either of them, to relieve themselves from a forfeiture. On the contrary, I understand it is a bill in equity filed by the plaintiff to have a forfeiture adjudged in her favor, and to enforce the same. The complaint alleges that at the times mentioned the plaintiff was the owner in fee simple and in the possession of the premises described. Each of the answers denies such allegations, and alleges that at all such times the defendant