Nitardy v. Thayer

• Decision Date: 09 April 1957
• Citation: 275 Wis. 459,82 N.W.2d 325
• Parties: G. C. NITARDY et al., Appellants, v. Charles THAYER, Respondent.
• Court: Wisconsin Supreme Court

Page 325

82 N.W.2d 325

275 Wis. 459

G. C. NITARDY et al., Appellants, v. Charles THAYER, Respondent.

Supreme Court of Wisconsin.

April 9, 1957.

Dempsey & Robinson, Whitewater, for appellants.

Kenney, Korf & Pfeil, East Troy, for respondent.

MARTIN, Chief Justice.

Respondent owned a marsh area in Jefferson county and in 1954 he invited the appellants to join him in building a pond therein to improve duck and goose hunting conditions. A written agreement was entered into on September 22, 1954, after work had been commenced on the pond, and thereafter appellants expended $2,576.50 on the improvements. The agreement provided that the appellants pay $160 per year for lease of the marsh for hunting, and it further provided:

'This lease is to run indefinitely from year to year unless the party of the first part sells the real estate, in which event the party of the first part will reimburse parties of the second part for the amount of money spent in the creation of the pond, less twenty per cent per year for each year the pond has been in existence, starting in 1954. * * *'

In November 1954 respondent sold the marsh to one Richard Gumz, who had knowledge of the lease before he purchased the property and was willing to be bound by the terms thereof. Respondent gave appellants no notice of the sale. They learned of it in the spring of 1955 and advised respondent they desired to terminate the lease. Although no one prevented them from hunting there after the sale, they did not hunt the marsh during 1955. Appellants brought this action for reimbursement of their expenditures, claiming the lease was terminated by the sale.

The trial court held that the clause relating to the term of the lease was not a limitation but a condition subsequent and that it was waived by the respondent when he sold the land.

In 52 L.R.A.,N.S., note, p. 718, it is stated:

'The distinction between a 'condition subsequent' and a 'special limitation' is that, in the former, the words creating the condition do not originally limit the term, but merely permit its termination upon the happening of the contingency, while in the latter the words creating it originally limit the term to the time of the happening of the contingency, hence, when the contingency, happens, the estate is terminated as if the term had expired.'

In Restatement, Property, sec. 24, p. 59, it is stated:

'The term 'condition subsequent' denotes that part of the language of a conveyance, by virtue of which upon the occurrence of a stated event the conveyor, or his successor in interest, has the power to terminate the interest which has been created subject to the condition subsequent, but which will continue until this power is exercised.'

While the trial court made a point of the distinction between the word 'unless' used in the clause in question and such words as 'until' which specifically connote time, we do not consider the distinction controlling since---- '* * * the great weight of authority now is that whatever the form of language used, whether adapted to the creation of a special limitation or a condition subsequent, the provision will be construed as the latter unless a contrary intent is clearly expressed.' 32 Am.Jur., Landlord and Tenant, sec. 825, p. 702.

Since a lessor has an absolute right to sell his reversion subject to a lease without notice to or consent of the lessee, see Annotation, L.R.A.1915 C, p. 192 et seq., the more reasonable construction of a provision for termination of the leasehold estate in case of sale is that it is enabling and not restrictive of the lessor's...