Donnelly v. Eastes

• Decision Date: 24 November 1896
• Citation: 69 N.W. 157,94 Wis. 390
• Parties: DONNELLY ET AL. v. EASTES.
• Court: Wisconsin Supreme Court

94 Wis. 390

69 N.W. 157

DONNELLY ET AL.

v.EASTES.

Supreme Court of Wisconsin.

Nov. 24, 1896.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action to set aside and cancel a deed given by Levi Johnson and wife to the defendant on the 26th day of February, 1892, conveying to the latter the grantors' farm, reserving to such grantors about one acre of land, with the farm buildings situated thereon. The consideration for such conveyance was payment of $50 down, as part of the first payment hereafter mentioned; an agreement to pay $500 on the last day of February in each year during the life of Levi Johnson, and, in the case of the survivorship of his wife, $400 each year during her life; also to furnish the grantors, each year, sufficient wood for one stove, and oats for one horse. The deed contained the following: “Upon the death of both said first parties [grantors], the absolute title to all said lands, in fee simple, shall vest in said second party, provided she has fulfilled and performed all of the conditions of the deed; but, in case said second party shall fail to perform any of the conditions of said deed, then the said deed shall be null and void, and all rights conveyed herein shall revert to the first parties.” The facts above stated were set forth by proper allegations in the complaint; also that, under the deed, defendant took possession of the farm, and worked it for the season of 1892, and paid the installment payable on the last day of February, 1893; that thereafter she abandoned the farm; that by reason thereof, March 15, 1894, the grantor Levi Johnson took possession of the premises, and declared the deed void, and brought this action to cancel the same. Defendant answered, among other things, that after taking possession of the farm she expended large sums of money in repairing and improving the same; that she was obliged to reside in Chicago and leave the property in charge of an agent; that during the first season Johnson, by interference with such agent and other ways, particularly set out in the answer, embarrassed her in the work of carrying on the farm; that at the beginning of the second year defendant left the farm in charge of plaintiff Johnson at his request, and upon his agreeing to make the farm produce sufficient to yield the sum required to be paid under the deed. She denied that plaintiff Johnson ever repossessed himself of the farm, except by her permission as aforesaid. Several matters were set forth in the answer going to show that her failure to comply with the conditions of the deed was attributable to acts of Johnson in interfering with her agent and otherwise. She further alleged, in effect, that she did not pay the sum required under the deed on the last day of February, 1894, because of necessary absence, but that she tendered the same, being $545, on the 28th day of March thereafter, and that it was refused upon the ground that it came too late. She further alleged that she was ready and willing, and had always been, to comply with all of the conditions of the deed. Both plaintiffs died before the action was tried. It was revived in due form, and proceeded to trial and judgment. The trial court found, among other things, that, soon after the delivery of the deed, Johnson commenced efforts to get rid of its effect and to regain control of the property; that defendant never absolutely refused to perform the conditions of the contract, but always intended to perform them, in good faith; that when Johnson refused the tender made on the 28th day of March, 1894, which was of a sum substantially sufficient to cover back taxes and back rent, the refusal was solely on the ground that it came too late, and because he desired to get the place back; and that the tender was not kept good. The court stated the account between the defendant and the estate, in which he found a balance due the latter of $917.59. As a conclusion of law, the court found that defendant should have the absolute legal and equitable title of the farm in her confirmed, within a time specified, upon bringing into court, or paying to plaintiffs' attorneys, the aforesaid balance. Costs were allowed to plaintiffs because of defendant's breach of contract. The court held that the action was brought to take advantage of a forfeiture in equity, on account of breach of a condition subsequent. To this the plaintiffs excepted; also excepted to some of the findings of fact. Judgment was entered in accordance with the findings, from which this appeal is taken.L. B. Caswell, for appellants.

Edwin T. Cass and H. J. Kendig, for respondent.

MARSHALL, J. (after stating the facts).

The question upon which this case turns mainly is, was the condition in the deed a condition precedent, such as must happen before title would vest in the grantee, or was it a condition subsequent, a breach of which might be taken advantage of, or operate, under its terms, to defeat a title already vested? If the latter, a court of equity had ample power to relieve appellants, upon equitable principles of compensation, from a forfeiture; if the former, the court had no such power. Failure to perform a condition precedent is an effectual bar to any remedy at law, and, in a case like this, to any remedy in equity as well. The law governing this subject is too well settled to require any extended discussion of it, or the citation of authorities, but we call attention to the following in this court, to which reference may be made: Warren v. Bean, 6 Wis. 120;Hudson v. McCartney, 33 Wis. 331;Drew v. Baldwin, 48 Wis. 529, 4 N. W. 576;Redman v. Insurance Co., 49 Wis. 431, 4 N. W. 591;Stoel v. Flanders, 68 Wis. 256, 32 N. W. 114;Gates v. Parmly (Wis.) 66 N. W. 253. This appears to be a harsh doctrine when viewed apart from the reason for it. Courts...