68 Wis. 256 | Wis. | 1887
The complaint in this case is in the usual form for foreclosure of a mortgage. The note for $1,600, and the mortgage collateral thereto, bear date July 2,1881, and were given to Mary Royce by George F. Flounders and lone A. Flanders, his wife, the appellants. The suit was brought by Mary Royce, and she having died, it was revived in the name of the respondent, her executor. It is stated in the answer that the said lone A. Flanders was the daughter and only child of the said Lewis and Mary Royce, and that they being well advanced in years, and desirous of avoiding the cares and responsibilities of active life, and at the same time to secure to the said lone wh'aU
“ This agreement, made and entered into this 31st day of July, 1883, between George F. Flanders and lone A. Flanders of the first part, and Lewis Eoyce and Mary Eoyce of the second part, witnesseih, that for and in consideration of money, lands, and tenements heretofore conveyed, the said George F. Flanders and lone A. Flanders shall maintain the said Lewis Eoyce and Mary Eoyce for and during their natural lives; that is to say, said parties of' the first part are to furnish good and comfortable room or rooms, good and comfortable board, do their sewing and washing, take care of them when sick. -
[Signed]
“ George E. FlaNdeks.
“IoNB A. FLANDERS.”
It is further alleged in said answer that, at the same time, and as part and parcel of said agreement, the said Mary Eoyce, for the consideration aforesaid, made and delivered to George F. and lone A. Flanders, the following agreement, to wit:
“ Know all men by these presents, that I, Mary Eoyce, of Burlington, in consideration of a contract made and entered into on this da}'' by George F. Flanders and lone A. Financiers, to support and maintain the said Mary Eoyce and Lewis -Eoyce during their natural lives, do hereby declare that I have agreed with the aforesaid George F. Flanders and lone A. Flanders not to collect, receive, or ask for any further interest on a certain mortgage, executed by George F. Flanders and lone A. Flanders on the 2d day of July, 1881, and recorded July 6, 1881, at 5 o’clock r. m., in vol. 47 of Mortgages, page 590; provided, that the said George F. Flanders and lone A. Flanders shall perform on their part the contract referred to and before mentioned; and in ease
“In witness whereof I have hereunto set my hand.and seal this 31st day of July, A. D. 1883.
[Signed] “MAry Royce. [Seal.]
“ In presence of
“ L. B. COLTON.
“ J. B. WhbeleR.”
It is also alleged that the mortgage referred to is the same as the one in suit, and that the appellants have in all respects kept and performed the conditions of said agreement up to the 10th day of September, 1885, when the said Mary Royce refused to accept their further care and support, and that they are ready and willing and offer to perform the contract if the said Mary Royce will accept the same, and that they maintained the said Lewis Royce until he died, July 23, 1884, and the prayer is that the action may be dismissed. - 1
The plaintiff, in reply, admitted the execution of said agreements, and alleged that the said defendants have neglected and entirely failed to keep said agreements on their part, by neglecting and failing to furnish the plaintiff, Mary Royce, with comfortable room or rooms, and with good and comfortable board, and by neglecting to take proper care of her, and misusing and ill-treating her in various ways, and that the condition upon which said release was given has not been complied with and is therefore of no force or effect. The evidence upon the trial has not been made part of the record.
The circuit court found “ that, from and after the execution of said agreement for maintenance and said conditional
It is to be presumed that the evidence most fully justified ■these findings, and the case must be decided upon the findings and the pleadings alone, as the_evidence is riot before, us. The two contracts (and we may as well call them contracts, without any more technical designation) were very informally and inartistically drawn, but their true meaning and construction are not at all difficult; and for authority upon all the material questions raised we need not necessarily look outside cases decided by this court.
The first agreement to maintain in the manner specified
It seems that Mary Boyce, the mother, still retains some individual and private means of support in this mortgage
Ye now have sufficiently the nature of these transactions to determine the main and ably/contested question in the case, which is whether the condition of the maintenance and support of Lewis and Mary Royce .during their natural lives in the manner specified, and of the performance of said first contract according to the meaning and true spirit thereof, is precedent or subsequent to the satisfaction and discharge of said mortgage. Ye do not think that this question is at all difficult. It is most unquestionably a condition precedent.
1. The defendants so treat it in their answer. They admit the condition, and aver performance, or willingness and readiness to perform, and they do not claim any compensation or apportionment of damages for - part performance. They do not aver any delivery to them of the note and mortgage or either of them, and they ask no judgment for .such delivery or for the satisfaction_and discharge of the mortgage, or any judgment except the dismissal of the action. There is the usual prayer for general relief, but no facts are stated which entitle them to any other relief than a dismissal of the action. They are willing to leave the
2. The facts and circumstances attending the making of this last contract show a design to make a full performance of the first contract a condition precedent to the satisfaction and discharge. Lewis and Mary Royce had parted with their money and conveyed their lands and tenements to the defendants, and the full title thereto had become vested in them upon condition subsequent or without condition, and their security therein for the performance of the contract was lost. Mary Royce held this mortgage against the defendants as her only resource against absolute want or dependence. She voluntarily, so far as it appears, made this contract with.the defendants, as an additional and interested' motive and inducement for them to perform their contract, and retained the mortgage as her only security that they should do so. If, as claimed by the learned counsel of the appellants in this court, the right to the satisfaction and discharge of the mortgage had become vested upon a condition subsequent, then what was the use of such a condition, so far as any security to Mary Royce was concerned, after the mortgage had been paid, satisfied, and discharged?
3. The language of the contract itself makes it a condition precedent. Mary Royce agrees “ not to collect, receive, or ask for any further interest on the mortgage,.provided that they shall perform on their part the contract referred to,” which clearly means so long as they shall perform. The performance is most clearly a condition precedent to the agreement not to collect, receive, or ask for the interest. Then the language is, “ and in case that the said George F. Flanders and lone A. Flanders shall perform the said contract,” etc., “ I, Mary Royce, do declare said mortgage fully paid,” etc. This language implies the performance of the contract before the satisfaction of the mortgage, and this, together with the fact that the estate or property has not become vested iii the person whose prior duty it is to perform the condition, are the invariable tests of a condition precedent, and in such a case the performance of the act agreed to be done must precede the taking effect of the dependent contract for any purpose. A person has the right to make his contract so as to make his receiving any benefit whatever from it depend upon his own previous performance of some act, and neither the courts of law or equity can relieve him from this position any more than they can make contracts for the parties. “Conditions precedent are such as must be punctually performed before the estate can vest.” Wood’s Inst. 235; Rogan v. Walker, 1 Wis. 527. When one party has omitted to perform any act which constituted the consideration of the other party’s undertaking, or any part of it, and which was to precede
In Warren v. Bean, 6 Wis. 120, the parties had made up an issue by the pleadings of performance of the condition precedent, which was not sustained, but the trial court had allowed evidence of performance of the work beyond the time mentioned in the contract, and of enlargement of the time, and of an acceptance of the work. It was held that this was error, and that, on the pleadings, full performance within the time was required. The performance of the condition precedent is required before any performance by the other party can be demanded. Martin v. Veeder, 20 Wis. 466.
In Hudson v. McCartney, 33 Wis. 331, payments for the work were to be made only when the same was done to the full and complete satisfaction of the superintendent, and upon his certificates. It was held that the plaintiff could not recover without the performance of this condition precedent, even if he had done the work according to the contract in other respects. In the able brief of Messrs. Hastings and Greene in that case, the English, and many American, authorities are collated to the point that a condition precedent must be fully performed before the dependent obligation or agreement can have any effect whatever, and such is the discussion in Redman v. Ætna Ins. Co. 49 Wis. 438.
In Drew v. Baldwin, 48 Wis. 529, the distinction is well and clearly made that a condition precedent must be per
The learned counsel of the appellants complain that such a rule is arbitrary and harsh, and in many cases may work great injustice. If so, it is the fault of the party who assumes by his contract the strict and full performance of the condition before the'undertaking or obligation of the other party shall take effect or have any force whatever. The only remedy or avoidance of the injustice complained of is that the party must not make such a contract, the legal effect of which he is presumed to' have known. In view of all the authorities, there can be no doubt that the defendants were bound to the support'and maintenance of Lewis and Mary Royce during their natural lives in the manner specified, before they can insist upon the satisfaction or discharge of the mortgage or any part thereof. The agreement of Mary Royce, th§,t she would not collect, receive, or ask for any interest upon the mortgage only while the condition was being strictly performed, conclusively shows that the mortgage not only remained, but should remain, the property of Mary Royce until the full and complete performance of the condition, or until lawfully excused from such performance. I need not specially notice the authorities cited by the learned counsel of the appellants on this point, for they were all cases of condition subsequent, and not applicable. In such cases it may be that the claims, for the first time asserted in this court in this case, that the defendants should in equity be allowed a proportionate compensation'for their part performance, and that the actual
Finally, there is no chance for doubt or hesitation in holding in this case that the defendants not only failed to perform the condition but placed themselves, by their most wicked and unnatural conduct and cruelty towards Mary Koyce, in such an attitude towards her that neither law nor humanity would allow them to attempt any longer to support and maintain her in the house and home of her daughter, where, under the contract, she had a right to remain. They most signally violated their contract, both in letter and spirit, by a course of treatment so cruel and inhuman as to sliock the sensibilities of mankind. “They ill-treated and abused her, both by the application of personal violence and coercion, and by confining and imprisoning her and depriving her of personal liberty without any sufficient reason, justification, or. excuse, and thereby rendered her continued residence with them uncomfortable, and her life with them unendurable, whereby she was compelled to and did make her escape and depart from their residence.” The defendants, by -their answer, allege that Mary Rovce refused to accept their further care and support, and they tender her a further performance of their contract if she will accept the same. This comes very near “adding insult to injury.” The finding of the court on this subject is a verity in the case, and cannot be questioned. They now ask in this court, by their learned counsel, that they be compensated, on principles of equity, for the support and maintenance already rendered (and for suck support and care). The engagement of able and distinguished counsel in their behalf
By the Court. — ’The judgment of the circuit court is affirmed.