Mash v. Bloom

130 Wis. 366 | Wis. | 1907

Lead Opinion

Siebecker, J.

The controlling question of law presented by appellant is the right of respondent, upon the facts and circumstances on which she relies for relief, to invoke the-jurisdiction of equity for the determination of her rights. Her claim that this court has repeatedly granted equitable relief upon like grounds is challenged by appellant, and we are cited to the decisions of this court to justify such contentions. Appellant asserts that these decisions show that, whenever equitable relief has been awarded in this class of cases, it was upon the ground that the parties had no full and adequate remedy at law to enforce their rights, and that the facts of this case do not present such a case for the reason that plaintiff can, by action in ejectment, fully, adequately, and expeditiously enforce and protect her rights. An examination of the cases cited and relied upon by the parties in support of their respective contentions convinces us that equitable relief has been granted in cases only where the facts and circumstances shown demanded some form of relief not within the power of a court of law but which could be reached by some equitable remedy. Delong v. Delong, 56 Wis. 514, 14 N. W. 591, a case in substance like the one before us, is the only case that has come to our attention which can serve as a precedent, and this was an action in ejectment. True, all these cases dealt with defaults concerning agreements by parties who had obligated themselves to pay some sum of moneyin small amounts at stated periods for tire support of some person, to render some personal service to them, or, in some form, in consideration of the transfer of real or personal property by them, to make provision for their necessities in life. Put in all except the Delong Case the contract for such payment, support, and maintenance was embodied in a separate instrument from the deed of conveyance or rested in parol, thus leaving the deed of conveyance of such property in the form of an absolute conveyance. To restore the parties to such a transaction to their right in the property conveyed in consideration of such support and maintenance required the employment of the power of a court of equity, which brought the parties before the court and ascertained what obligations as a condition of the deed had been entered into for the benefit of the grantors. In the syllabus of Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, in which case these questions were fully considered, the rule is stated as follows:

“To the end that the conditional grantor’s remedy may be complete, [equity] will cancel all writings and records that might otherwise be used, presently or in the future, to his prejudice, acting, not upon the theory that they are avoided by the court, but that they are void independent thereof, and that equity jurisdiction is required to settle the status of the property in accordance with the facts, on the principle of quia timet, and to clear away those things which, though void in fact, might, by reason of their apparent force, be used by the holders thereof in some way, presently or in the future, wrongfully.”

Other cases in this court, which were brought and determined within the jurisdiction of equity, are the following: Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 385, 1 N. W. 39; Morgan v. Loomis, 78 Wis. 594, 48 N. W. 109; Hartstein v. Hartstein, 74 Wis. 1, 41 N. W. 721; Beckman v. Beckman, 86 Wis. 655, 57 N. W. 1117; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671.

Counsel for both parties devote much consideration to the question whether or not plaintiff is precluded from suing in equity because she- is not in the actual possession of the premises. In view of the importance attached to this subject, we deem it proper to advert to it and to state that in the foregoing cases the court, of equity granted relief upon the principle of quia timet, thus preventing any vexatious or wrongful usé of agreements which by construction were declared to be in fact conditions subsequent, and removing them as a cloud upon the title. Since these are the grounds upon which equity is set in motion, it is immaterial whether or not the plaintiff in such a case is in possession of the premises. In the following cases it was expressly held that the fact that plaintiff was not in possession could not affect the right to maintain such an action, for the reason that the legal remedy in restoring possession in such cases is inadequate, in that it leaves some void instrument or muniment of title outstanding and uncanceled. The distinguishing feature of this class of cases consists in the fact that the invalidity of the hostile cloud sought to be removed cannot be established except by .a resort to evidence aliunde the record. Pier v. Fond du Lac, 38 Wis. 470; Goodell v. Blumer, 41 Wis. 436; Smith v. Sherry, 54 Wis. 114, 11 N. W. 465; Smith v. Zimmerman, 85 Wis. 542, 55 N. W. 956; Davenport v. Stephens, 95 Wis. 456, 70 N. W. 661; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585. In view of her theory and position before the court, the suggestion that plaintiff is attempting to enforce a forfeiture is not strictly correct. She asserts that defendant defaulted in the conditions ■ of the conveyance, and that her claim to the right of possession and defendant’s denial of it operates as a re-entry and vests the title in her. Whenever parties can properly invoke the jurisdiction of equity, “in such a case the court does not lend its jurisdiction to effect a forfeiture. The rule in that regard is not violated. The forfeiture, or rescission as it is sometimes called, is effected by tbe acts of the grantor, by his -re-entry, or its equivalent, for condition broken.” Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; sec. 3079, Stats. 1898; Maginnis v. Knickerbocker Ice Co. 112 Wis. 385, 88 N. W. 300.

The question remains: Does plaintiffs case support her contention that she requires the aid of equity to have this property restored to her with a clear title ? She alleges that the condition of the deed was broken, and she. is for that reason entitled to have the actual possession restored to her. The complaint alleges a state of facts which shows that she seeks to recover the possession of real estate, the title to which has reverted to her by reason of a breach of a condition subsequent. To enforce this right it is necessary to establish the breach of condition alleged. Proof of such breach would entitle her to judgment declaring the conveyance had been forfeited and an award to her of the possession of the property. This procedure would enforce all her rights and accomplish the complete restoration of her rights as before the conveyance, and result in canceling the, deed as of no further effect and therefore void. This would be a full, complete, and adequate remedy, enforceable in an action in ejectment. Under such circumstances the parties are left to enforce their rights in such an action at law. This was the course pursued in Delong v. Delong, 56 Wis. 514, 14 N. W. 591, which was a similar case, in that the grounds of relief were for breach of a condition in a deed providing for the support of the grantor. It has been repeatedly ruled from an early period that, if parties can enforce their rights to recover the possession of real property in. an action in ejectment, equity will not aid them. Clark v. Drake, 3 Pin. 228; Mills v. Evansville Sem. 47 Wis. 354, 2 N. W. 550; Lawe v. Hyde, 39 Wis. 345; 1 Pomeroy, Eq. Jur. (3d ed.) § 459, and cases cited; Donnelly v. Eastes, 94 Wis. 390, 69 N. W. 157.

We are persuaded that the court erred in not holding, as asserted by defendant at tbe first opportunity, that plaintiff fias a complete and adequate remedy at law. This necessarily calls for a reversal of the judgment and the dismissal of the action. It is therefore unnecessary to consider whether the evidence and findings support the judgment.

By the Court. — The judgment appealed from is reversed, and the cause remanded to the circuit court with directions to award judgment of dismissal of the action.

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Concurrence Opinion

The following opinion was filed January 23, 1907:

Marshall, J.

(concurring). I will state a few propositions, unaccompanied by discussion, which it seems govern this case.

1. Where the holder of the legal title to land is out of possession and another adversely withholds the same under claim of title, the former need not, necessarily, sue in equity to vindicate his right because the invalidity of the latter’s claim must be established by evidence aliunde the record.

2. In the situation stated, there being no circumstance making the case classible under a recognized head of equity jurisprudence, the true owner cannot properly sue in equity to avoid his adversary’s claim and regain possession.

3. In such situation the mere fact that the hostile claim appears of record and as a cloud on the true title does not entitle the true owner to use equity jurisdiction to regain possession, since an action at law will remedy the wrong and incidentally remove the cloud, but the case is otherwise where the hostile title is founded on fraud which must be established by evidence aliunde the record. It is fraud or'some other efficient circumstance which justifies the use of the equitable remedy. Burrows v. Rutledge, 76 Wis. 22, 25, 44 N. W. 847.

4. In such situation if the holder of the legal title is such by forfeiture of his adversary’s title for breach of condition subsequent, which breach, but not the condition, must be established by evidence aliunde the record, no question of fraud or other efficient question, such as mistake, being involved, such holder may sue at law to regain possession of the property.

5. In the situation last above indicated, except that the condition subsequent is not contained in the deed or any instrument forming a part of an entire transaction including the deed but which must be established by implication from the circumstances, as in case where a person makes a conveyance in the ordinary form, the real consideration, however, being personal attention and support of the grantor by the grantee, the person who shall have regained title by breach of condition subsequent must sue to regain the property, in equity, but solely on the ground that the condition itself is a discovery, so to speak, only competent to be made and declared by that jurisdiction.

6. The distinction between Delong v. Delong, 56 Wis. 514, 14 N. W. 591, and similar cases, and Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, and similar cases, is that in the former the condition subsequent was declared by the parties in writing as a part of the transaction which included the making of the deed, while in the latter the condition was declared by the court as an implication from the circumstances which equity jurisdiction, by a rule of construction, so to speak, peculiar to itself, could determine was the intention of the parties.

This case belongs to the first class, hence the action in equity was improperly brought. To sustain it would violate the constitutional guaranty of the right of trial by jury.

Winslow, J. I concur in the views expressed by Mr. Justice Marshall.