Williams v. City of Oconomowoc

| Wis. | Apr 30, 1918

Lead Opinion

Tbe following opinion was filed February 5, 1918:

Rosewberry, J.

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" court="Wis." date_filed="1907-01-08" href="https://app.midpage.ai/document/mash-v-bloom-8188676?utm_source=webapp" opinion_id="8188676">130 Wis. 366, 110 N. W. 203, 268. However this may be, tbe 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. Sec. 2649a, Stats. 1911. The prayer for relief is no part of the cause of action. North Side L. & B. Soc. v. Nakielski, 127 Wis. 539" court="Wis." date_filed="1906-03-20" href="https://app.midpage.ai/document/north-side-loan--building-society-v-nakielski-8188446?utm_source=webapp" opinion_id="8188446">127 Wis. 539, 106 N. W. 1097. Where the facts stated in a complaint constitute a cause of action, it is immaterial whether it be at law or in equity, except for the purpose of determining whether the parties are entitled to a jury trial, in accordance with the provisions of sec. 5, art. I, Const. Formerly the objection that the plaintiff who set up facts constituting an equitable action had an adequate remedy at law was waived unless raised by demurrer or answer. Boorman v. Sunnuchs, 42 Wis. 233" court="Wis." date_filed="1877-08-15" href="https://app.midpage.ai/document/boorman-v-sunnuchs-6602290?utm_source=webapp" opinion_id="6602290">42 Wis. 233, 247. Under present practice the better procedure is to raise the question by motion to place upon the court or jury calendar, or to strike therefrom, as the case may be. 31 Cyc. 291. Pleading is no longer like a checker game — one in which the most skilful player wins. The pleader may now jump both ways without first getting into the king row.

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" court="Wis." date_filed="1903-10-20" href="https://app.midpage.ai/document/danforth-v-city-of-oshkosh-8187737?utm_source=webapp" opinion_id="8187737">119 Wis. 262, 97 N. W. 258, and Beurhaus v. Cole, 94 Wis. 617" court="Wis." date_filed="1897-01-12" href="https://app.midpage.ai/document/beurhaus-v-cole-8185382?utm_source=webapp" opinion_id="8185382">94 Wis. 617, 69 N. W. 986, sec. 2039, Stats., bas been amended by tbe insertion of the words “to a charitable nse or” (ch. 511, Laws 1905), and hence those decisions are no longer applicable. In this connection we call attention to the provisions of sec. 1787e, which provides that all gifts to public park corporations shall be devoted to park purposes without being subject to the limitations and restrictions provided by law in other cases. Sec. 2263 also provides that where lands are designated upon any plat as donated to the public or other grantees therein named, it shall be deemed a sufficient conveyance, and lands so conveyed shall be held by the grantees in trust for the uses and purposes set forth in the plat and for no other. Under such a conveyance there would be a complete suspension of the power of alienation. The legislative policy of the state as to lands conveyed for park purposes is clear and consistent. It must be held that the conditions annexed to the grant are valid and that the facts alleged in the complaint state a cause of action.

By the Court. — Order reversed, and cause remanded for further proceedings according to law.

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Rehearing

The respondent' moved for a rehearing, and the following opinion was filed April 30, 1918:

RoseNberry, J.

It is stated in the opinion in this case, ante, pp. 283-84, 166 N.W. 322" court="Wis." date_filed="1918-04-30" href="https://app.midpage.ai/document/williams-v-city-of-oconomowoc-8192590?utm_source=webapp" opinion_id="8192590">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 position is well taken. Therefore the demurrer should have been sustained, with leave to the plaintiff to amend her complaint if she so desires. The mandate will be modified accordingly.

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.