167 Wis. 281 | Wis. | 1918
Lead Opinion
Tbe following opinion was filed February 5, 1918:
From tbe facts set forth in tbe complaint it appears that plaintiff claims title to said premises by reason of tbe breach of a condition subsequent contained in tbe deed, and in such circumstances this court bas held that tbe plaintiff should proceed by an action at law. Mash v. Bloom, 130 Wis. 366, 110 N. W. 203, 268. However this may be, tbe facts necessary to state a good cause of ac
The proposition that there is a defect of parties plaintiff was practically abandoned upon the argument.
The defendant claims that the complaint does not state a cause of action for the reason that by the terms of the conveyance the power of alienation is suspended for a longer time than is permitted by secs. 2038 and 2039, Stats. Defendant frankly admits that if its contention in this respect is upheld, prior decisions of this court must be in effect overruled. While a learned argument has been presented on that proposition, we shall not further consider it here, because, the conveyance here being for a charitable use, a public park, secs. 2038 and 2039 do not apply. 11 Corp. Jur. 325, § 36 and cases cited; 5 Ruling Case Law, 339 and cases cited; Bouv. Law Diet. Charitable Uses (Rawle’s Rev.).
Since the decisions in Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258, and Beurhaus v. Cole, 94 Wis. 617, 69 N. W.
By the Court. — Order reversed, and cause remanded for further proceedings according to law.
Rehearing
The respondent' moved for a rehearing, and the following opinion was filed April 30, 1918:
It is stated in the opinion in this case, ante, pp. 283-84, 166 N. W. 322, “the facts necessary to state a good cause of action in ejectment appearing, the court should not have sustained the demurrer, but should have overruled it.” It is called to our attention that the complaint contains no formal allegation that there has been any re-entry on account of the breach of the condition subsequent, and that therefore the complaint does not state a cause of action in ejectment, citing Mash v. Bloom, 133 Wis. 646, 114 N. W. 457.
Upon re-examination of the complaint it appears that this
By the Gourt. — Motion denied, without costs. The order appealed from is affirmed, and the cause is remanded for further proceedings in accordance with this opinion.