Mills v. Evansville Seminary

• Decision Date: 13 March 1883
• Citation: 58 Wis. 135,15 N.W. 133
• Parties: MILLS AND WIFE v. EVANSVILLE SEMINARY AND OTHERS.
• Court: Wisconsin Supreme Court

58 Wis. 135

15 N.W. 133

MILLS AND WIFE

v.EVANSVILLE SEMINARY AND OTHERS.

Supreme Court of Wisconsin.

Filed March 13, 1883.

Appeal from circuit court, Dane county.I. C. Sloan and D. L. Mills, for respondents, David L. Mills and wife.

W. F. Vilas and B. W. Jones, for appellants, the Evansville Seminary and others.

COLE, C. J.

One desiring to trace the history of this litigation in this court will find it in 47 Wis. 354 [S. C. 2 N. W. REP. 550] and 52 Wis. 669, [S. C. 9 N. W. REP. 925.] On the third of September, 1880, prior to the last decision, this action at law was commenced to recover the premises known as “Seminary Park,” for condition broken. On the trial of this action the plaintiffs were permitted to show, by parol evidence, against the objection of the defendants, that the lost bond for a deed, which was given by the plaintiff David L. in August, 1855, contained, among other things, the condition that the premises thereby agreed to be conveyed to the defendant corporation were to be used as a site for seminary grounds and buildings only, and that the title should revert to the plaintiffs when they ceased to be used for such purposes. The plaintiffs were likewise permitted to show by parol, against objection, that when the deed was given, pursuant to the bond, on the fourteenth of September, 1859, without any such condition being inserted therein, the understanding was that they did not waive the condition, but that the same should continue and remain in force. The plaintiffs claim that they showed by the evidence introduced on the trial that the grounds and buildings had been in fact abandoned by the defendant for seminary purposes; consequently that the title had reverted to them as the reversionary owners. The learned circuit court sustained that view, and gave judgment accordingly.

A number of exceptions are relied on here for a reversal of this judgment. In the first place, it is insisted that the court below erred in admitting evidence to contradict or vary the language of the deed, which in terms granted an indefeasible estate. It is said that even if the alleged condition as to user and reversion was in the preliminary contract, it was not inserted in the deed, which superseded all prior negotiations and agreements on the same subject; therefore it must be considered as waived. Further, it is argued that the plaintiff's own testimony given on the trial shows that the condition was intentionally waived so far as the mortgage to raise $1,000 to complete the building was concerned, and having been once dispensed with it is said it is gone forever. There is undeniably great force in this argument, but whether it is sound when applied to the facts of this case we do not feel called upon to determine. Nor shall we consider the position that the alleged condition in the bond could not co-exist or would not survive the execution of an absolute deed by the plaintiffs. We are relieved from deciding these grave questions because we think the proof fails to show such an abandonment of the premises for seminary purposes as would work a forfeiture of the estate, assuming the condition of the bond to be in force.

It is elementary law that such conditions are most strongly construed against the grantor, and that a forfeiture will not be enforced unless clearly established. It is doubtless true, as claimed by defendants' counsel, that courts do not hasten to seize upon mistake or neglect, or even misuser of property, to adjudge a forfeiture in cases of this nature. Now, according to the testimony of Mr. Mills, the condition was that the premises should be used as a site for a seminary building and grounds only, the title to revert to the grantors when the property should cease to be used for seminary purposes. The condition imposed upon the defendant corporation the duty of keeping up and maintaining, or causing to be kept up and maintained, an educational institution on the land___a school or academy where young persons could be instructed in the several branches of knowledge and science. But the parties doubtless expected that there would be interruptions in the school for one reason or another, and for longer or shorter periods. But such interruptions would not operate as a breach unless they amounted to an absolute and final abandonment of the property for seminary purposes. It is admitted that the seminary building and grounds were used for seminary purposes until the spring of 1874. From that time up to about the...