72 Wis. 204 | Wis. | 1888
The demurrer to the answer, though special in form, must be treated as a general demurrer. It is conceded that it reaches back to the complaint, and raises the question as to its sufficiency as a pleading. This is evidently the view of its effect taken bj’ the court below, for the order appealed from states thal the complaint is held sufficient, but the demurrer is sustained as to that part of the answer following the general denial and preceding the last separate defense therein pleaded.
The action is brought to obtain relief from the forfeiture of a mining lease upon default in the payment of the rent reserved by the lease at the time specified. The default is admitted in the complaint. But as a ground for equitable relief from the forfeiture it is alleged that the plaintiff company entered into possession of the premises under the lease for the purpose of mining iron ore; sunk shafts; made excavations at great expense; erected sheds, buildings, tramways, supports, hoisting apparatus, and other improvements and machinery necessary and convenient in operating a mine; and developed a valuable mine at great expense, in such a manner that the improvements, engines, and machinery placed upon the premises, exclusive of the mine, were of the value of $20,000; that the value of the lease
If these were all the facts to be considered, it well might be held that they present a case for the interference of a court of equity to aid the plaintiff by relieving it from the forfeiture and setting it aside. The doctrine seems to be quite well settled that where the agreement is simply one for the payment of money, and the forfeiture of either land or chattels or money is incurred by nonperformance, tho forfeiture will be relieved against, unless the defaulting party, by his inequitable conduct, has debarred himself from such relief, or the special circumstances show that the relief should not be granted. See cases cited in the note to Smith v. Mariner, 68 Am. Dec. 85. Says a learned author: "Where the lease contains a condition that the lessor may re-enter — as the lease before us does — and put an end to the lessee’s estate, or even that the lease shall be void upon the lessee’s failure to pay the rent at the time specified, a court of equity will relieve the lessee, and set aside the forfeiture incurred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant.
Eut it is claimed the matters set up in the answer show that the plaintiff should not be relieved against the forfeiture incurred. It is alleged, in effect, that the plaintiff failed to perform other covenants in the lease than that in respect to the payment of the rent; that it neglected to make the monthly statements of the ore mined and removed from the premises during the months of September and October, 1887, although demanded; that in the month !of August, 1887, it became insolvent, and continues so, unable to pay’’ the wages of the miners and workmen employed about the mine; that on the re-entry’ of the defendants upon the demised premises these wages remained unpaid, and- the workmen threatened and were about to stop the pumps of the mine, and flood it, and do other great and irreparable damage to the mine and improvements; that one of the defendants, on behalf of himself and the other owners of the mine, was obliged to guaranty a large amount of the claims of the unpaid workmen, and has purchased such claims to the amount of $7,000; that in the month of November, 1887, prior to the time of the defendants’ re-entry,, a large number of attachments had been issued out of the circuit court of Gogebic county and other courts in the state of Michigan, in actions therein pending against the plaintiff, and had been levied, together with executions, upon the improvements and property of the plaintiff at said mine, some of which, as between the plaintiff and defendants, as they are advised, would be deemed fixtures and ap
Should the evidence sustain these allegations of the answer, it is very doubtful whether equity would relieve against the forfeiture; for, if the plaintiff has broken other covenants besides the one for rent; has committed waste upon the premises by cutting timber which it had no right to cut; if it is insolvent, or so pecuniarily embarrassed that it could not raise means to operate the mine, pay its workmen, or protect the property from being dismembered or jeopardized by the claims of its creditors,— would it be equitable to remove the forfeiture and restore the lease? It is plain that to do so would endanger the collection of the rent and the mining property. If the plaintiff is insolvent, what security have the defendants that the rent will be paid in future, or that the property will be protected against waste and destruction? Surely their rights will bo endangered, .if these facts are true, by restoring the plaintiff to the possession of the property; certainly, unless security is required for the performance of the covenants of
We shall not consider the other matters stated in the answer by way of defense to the relief asked, as that the plaintiff company failed to comply with the laws of this state in not having its capital stock subscribed and paid in; nor whether it complied with the laws of Michigan relating to mining corporations. As at present advised, we see nothing in these facts, even if true, which should prevent equity from removing the forfeiture, if otherwise it. would be equitable to do so.
As to the question of jurisdiction, it is apparent that the courts of this state could not, in any event, restore the plaintiff to the possession of the mining property, which is in Michigan. The plaintiff would have to apply to the courts of that state for that relief. But there is no doubt but that the courts of this state, having jurisdiction of the parties, could remove the forfeiture for nonpayment of rent. In doing this it would be acting upon the parties, and could enforce that relief.
By the Court. — The order of the circuit court sustaining the demurrer to the answer is reversed, and the cause remanded for further proceedings according to law.