Mills v. Evansville Seminary

52 Wis. 669 | Wis. | 1881

Orton, J.

The judgment in this case when it was before this court on appeal by the plaintiffs, reported in 47 Wis., 354, must be held to-be res adjudicata on this appeal and conclusive against the plaintiffs’ right of recovery, and that part of the judgment now appealed from. It may be true that, on the former appeal, the plaintiffs sought to reverse the judgment strictly because it did not contain all of the relief asked; but incidentally and impliedly that part of the judgment which was unfavorable to the plaintiffs, viz., that part enjoining the defendant the Evansville Seminary from conveying the premises to any one, not excepting the plaintiffs, came within the appeal and was reversed by the language of the opinion, — • “ the plaintiffs have appealed from so much of the judgment as grants the injunction,” and, “that part of the judgment of the circuit court appealed from must be reversed.” The present appeal of the defendants, therefore, must be treated as taken from all of the judgment not reversed on the former appeal. The opinion of the chief justice on the former appeal treats the complaint, in its scope and main object, as one alleging a forfeiture and asking a court of equity to declare and enforce it; and the reversal of that part of the judgment appealed from is based solely on the ground that “ courts of equity will not take jurisdiction of a case for the purpose of enforcing a forfeiture, but will leave a party who seeks to take advantage of one to his remedy at law.” This is conclusive of the present appeal, and the remaining parts of the judgment must be reversed by force of the former adjudication of this court in this cause, without further or other reasons.

It is now urged by the learned counsel of the respondents, that the ruling asked in the complaint is two-fold: first, that the absolute deed of the plaintiffs be reformed by inserting in it a. clause of forfeiture; mid secondly, to declare and enforce such forfeiture; and that, therefore, although the latter relief may not be granted, the former may be, and the complaint should be allowed to stand for such purpose alone. It is a sufficient answer that this court on the former appeal adjudicated this identical question, and construed the complaint, both in its allegations and prayer for relief, as having but one main object and purpose, which were to enforce the forfeiture, treating the reformation of the deed by inserting in it a clause of forfeiture as merely incidental and necessary to suclimain relief, and as asking a reformation of the deed in this respect only for the purpose of having the forfeiture declared. It is said, in the opinion, “This in substance is the nature of the relief asked in the complaint.” If the question were not already disposed of and concluded on the former appeal, we should at this time so construe the complaint; and out of mere deference to the learned and eminent counsel of the respondents, without seeming to reconsider the former decision, it may be added here that precisely the same reason why courts of equity will not take jurisdiction to declare and enforce a forfeiture clause already contained in a deed, would have equal force against courts of equity'entertaining a complaint for the purpose of inserting a forfeiture clause in an absolute deed; and that reason is, that forfeitures are not favored. “ Neither penalties, forfeitures nor reentries for conditions broken are favored in equity.” Willard’s Eq. Jur., 56; 2 Story’s Eq. Jur., § 1319.

In Lawe v. Hyde, 39 Wis., 345, it was sought both to reform the deed in respect to the conditions, and to add other conditions of forfeiture, and to enforce the forfeiture. The action was regarded and disposed of by this court as one for the sole purpose of enforcing a forfeiture; and the late eminent chief justice said in his opinion: “The complaint purports to be against Mr. Lawrence, the grantee of the respondent, the university, and appellant, in equity, for reformation of the condition subsequent in the respondent’s deed, for forfeiture for condition broken, and for possession. ... A proceeding in equity to enforce a forfeiture cannot be sustained.”

By the Court.— The part of the judgment appealed from is reversed, and the cause remanded with directions to the circuit court to dismiss the complaint, without prejudice to a suit at law.

Cassoday, J., took no part.