Glocke v. Glocke

• Decision Date: 18 February 1902
• Citation: 113 Wis. 303,89 N.W. 118
• Parties: GLOCKE v. GLOCKE ET UX.
• Court: Wisconsin Supreme Court

113 Wis. 303

89 N.W. 118

GLOCKE

v.GLOCKE ET UX.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Syllabus by the Judge.

1. It is not essential to a condition subsequent in a conveyance of property, that it be created by express words, or that there be any express power in the writings to make re-entry for condition broken, or to do anything equivalent thereto.

2. If an aged parent conveys his property to his son to secure support for himself during the remainder of his life, whether the agreement calls for support generally or by paying to the grantor money or property in specific amounts at specified times, the presumption is that the primary purpose of the grantor is to secure personal performance by the grantee of the obligations incurred by him.

3. In the circumstances above stated, there being no adequate remedy, for such a breach of the agreement by the grantee as will prevent the grantor from realizing the purpose of the grant, other than a restoration, so far as practicable, of the parties to their former position, a court of equity will read out of the papers evidencing the agreement a condition subsequent upon which the property was conveyed, enforceable by the grantor the same as any other such condition in the conveyance of property.

4. In case of a conveyance of property as and for the purpose above indicated, and of the grantee, by his conduct, rendering impossible of realization the purpose of the grantor, if the latter elects to rescind the transaction for breach of condition subsequent, a court of equity will take jurisdiction to give a protective remedy to him by establishing his status as owner of the property. It takes jurisdiction in such a case, not to forfeit a title, but to quiet a title already forfeited for nonperformance of the condition subsequent. To the end that the conditional grantor's remedy may be complete, it will cancel all writings and records that might otherwise be used, presently or in the future, to his prejudice, acting, not upon the theory that they are avoided by the act of the court, but that they are void independent thereof, and that equity jurisdiction is required to settle the status of the property in accordance with the facts, on the principle of quia timet, and to clear away those things which, though void in fact, might, by reason of their apparent force, be used by the holders thereof in some way, presently or in the future, wrongfully.

Appeal from circuit court, Waupaca county; Chas. M. Webb, Judge.

Action by Albert Glocke, Sr., against Albert Glocke, Jr., and wife. Decree for plaintiff, and defendant Albert Glocke, Jr., appeals. Affirmed.

Action to enforce rescission of a contract for nonperformance of a condition subsequent. The issues raised by the pleadings sufficiently appear by the findings of fact and conclusions of law. For the purpose of this appeal such findings and conclusions may be stated as follows: May 23, 1899, and for many years prior thereto, plaintiff owned and possessed as his homestead the lands described in the complaint. Defendant Albert Glocke, Jr., is plaintiff's son and is 25 years of age. Defendant Emma Glocke is the son's wife. May 23d, aforesaid, plaintiff, by a deed with full covenants, conveyed the lands mentioned to his said son, receiving as the only consideration therefor an agreement, executed by the latter and his wife, secured by a mortgage for $5,000 on said lands, by which agreement it was stipulated that plaintiff should have the use of a designated part of the dwelling house on said lands during his life, the use of one acre of land for a garden, the right to go upon any part of the premises at his pleasure, and the right to permit such persons as he might desire to come upon the land to visit him; that defendants would manure and plow plaintiff's garden spot when requested to do so; that they would give plaintiff good and proper care and nursing in case of his sickness, and at such times obey his request to procure a doctor and pay the doctor for medical services; that they would furnish plaintiff, at any time he might desire, any horse that might be on the farm, with rig and harness, ready for his use to go anywhere he might choose; that the occupancy of the premises by the defendants should commence March 1, 1900; that March 1, 1901, and annually thereafter during plaintiff's life, defendants would pay him $75 in money; that they would, during his life, deliver to him each year at threshing time 40 bushels of good wheat, at digging time 40 bushels of good potatoes, at shearing time 10 pounds of the best wool, in November 100 pounds of good beef and two hogs weighing not less than 200 pounds each, 2 quarts of fresh milk every day, one dozen eggs daily from March 1 to November 1, three pounds good fresh butter every week, one fat chicken every week, at Thanksgiving time two fat geese, and all the good dry wood he might desire for fuel, ready for the stove; that in case plaintiff should die leaving a widow, she should have the use during her life of a designated part of the dwelling house as aforesaid, all the good dry fuel she should need, prepared for the stove, and one-half as much money, wheat, potatoes, beef, pork, wool, butter, eggs, milk, chickens and geese as that agreed to be furnished plaintiff, and at the time designated for furnishing the same to him; that on the full performance of all the conditions aforesaid to be performed by the defendants, both as to the plaintiff and as to his widow should he die leaving one, after his death and the death of his widow, if there should be one, the said mortgage should become void and of no effect, and be canceled of record.

As soon as defendants took possession of the farm under the aforesaid agreement, they became intolerably abusive toward plaintiff. They failed, nearly from the first, to carry out any part of the aforesaid agreement. They did not perform any of such agreements except to furnish butter and eggs and milk for about 10 days, though they were repeatedly requested to comply in every respect with their contract. Subsequent to the making of the contract plaintiff married and took his wife to live with him on the farm. Defendants immediately thereafter became intolerably abusive toward her. April 5, 1900, without the consent of plaintiff or his knowledge, defendants left the premises to live on a farm purchased by them, some twenty miles away, taking all their belongings with them, after which time they made no attempt whatever to fulfill any of the obligations of said agreement. By reason of such removal they rendered themselves wholly incapable of complying with their contract. After such removal defendants freely asserted to plaintiff that they would not abide by their said agreement, and they gave out publicly that they would sell or lease the place, or commit waste thereon. The premises are worth about $8,000. Plaintiff never gave up possession thereof other than as contemplated in the contract, but is now in possession the same as before the contract was executed.

The conclusion of law was that the transactions between the parties, consisting of the making of the deed, mortgage and contract, should be deemed rescinded and all rights which the parties obtained through such transaction extinguished, and the title to the property involved adjudged to be in plaintiff the same as if such transaction had never occurred.

Defendants alleged in their answer, by way of counterclaim, that when the contract was made, which was attempted to be reduced to writing by the making of the deed, written agreement and mortgage, it was a material part thereof that a large amount of the personal property and farming utensils in use and for use on the farm should go with the farm to the defendants as part of the consideration for the agreements on their part contained in the written contract referred to; that by mutual mistake the papers were so drawn as not to carry out that part of the arrangement between the parties, and that plaintiff has refused to let the defendants have any part of said personal property. There was a prayer for a reformation of the agreement and deed so as to embody the part alleged to have been omitted therefrom.

Judgment was rendered for plaintiff in accordance with the conclusions of law as before stated.

C. F. Crane (Gabe Bouck, of counsel), for appellant.

E. L. & E. E. Browne, for respondent.

MARSHALL, J. (after stating the facts).

The disposition of this case by the trial court was not complete in that there was a failure to make findings covering the allegations of the counterclaim constituting a cause of action for a reformation of the deed. However, appellant does not appear to have been prejudiced thereby, because the evidence did not establish such allegations with sufficient certainty to warrant findings in his favor. It is elementary that a written contract or instrument cannot be reformed so as to include matters alleged to have been omitted therefrom through mutual mistake, or mistake of one party and fraud of the other, without entirely clear and satisfactory proof of all the facts involved,--proof which will admit of no reasonable controversy. Meiswinkel v. Insurance Co., 75 Wis. 147, 43 N. W. 669, 6 L. R. A. 200. In such a case the party upon whom the burden of proof rests must do more than to produce a mere preponderance of the evidence tending to establish the facts in his favor to a reasonable certainty, as in an ordinary civil case. The court cannot overturn the solemn agreements of parties, as indicated by their writings, by merely choosing between conflicting reasonable inferences, where there is a fair controversy yet remaining. The inferences must be substantially either all in favor of the reformation requested or must so overbalance the inferences to the contrary that a reasonable person would not be liable to act thereon otherwise than in favor of the major inferences. Many courts hold the degree of...