Wanner v. Wanner

115 Wis. 196 | Wis. | 1902

WiNsnow, J.

This is one of a class of cases frequently happening, where aged parents have deeded their property to a son in consideration of future care and support, and have repented of their bargain. In such cases it has become the settled doctrine of this court that, when it appears that a substantial part of the consideration for the transfer was the agreement on the part of the son to render to the parent personal services and care, this agreement will be treated by a court of equity as a condition subsequent, and, if it be substantially broken through fault of the son, a reversion of title will take place by re-entry or its equivalent, and the deed will be set aside. Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118. The form of the transaction will not govern, but the intent and purpose thereof as disclosed by the testimony. The fact that a bond and mortgage was given, with a penalty named, which may equal in amount the value of the land, is not con-elusive, nor does it compel the parent to resort to foreclosure as his remedy. Such bonds and mortgages are frequently given, and doubtless the parent may, if he chooses, enforce them; but a court of equity will not, because of the existence of this .remedy, refuse to enforce the more effective remedy by cancellation of the deed' for condition broken when it appears that the parent has conveyed his substance to his son in consideration of personal care and support during his declining years, and, through no fault of his own, has failed to receive that care and support. In the present case the court held that the only remedy of the father was to recover the $1,000 which the bond and mortgage provided should be paid in case of default, and ruled out the testimony of the father tending to show that the defendant’s breach of his contract was wilful and without excuse. This was error. The plaintiff should have been allowed to prove that the defendant’s failure to furnish board was without justification, and, if he could show this fact, he was entitled to have the conveyance canceled upon surrender by him of the $1,000 cash or notes which he received as the first payment on the farm.

By the Court — Judgment reversed, and action remanded for a new trial.