Poluckie v. Wegenke

• Decision Date: 05 January 1909
• Citation: 119 N.W. 188,137 Wis. 433
• Parties: POLUCKIE v. WEGENKE ET AL.
• Court: Wisconsin Supreme Court

137 Wis. 433

119 N.W. 188

POLUCKIE

v.WEGENKE ET AL.

Supreme Court of Wisconsin.

Jan. 5, 1909.

Appeal from Circuit Court, Green Lake County; Chester A. Fowler, Judge.

Action by Anna Poluckie against George E. Wegenke and others. From a judgment for plaintiff, defendant George E. Wegenke appeals. Affirmed.

Equitable action to have a forfeiture declared of rights obtained by John Poluckie and others through him under a conveyance to him by his parents, plaintiff, and her husband now deceased, to secure their support for the balance of their lives, the claim being that the deed and contract back for support had been extinguished by breach of condition subsequent.

The consideration for the transfer and the status of the title at the time thereof and subsequent occurrences as to the title are indicated in the findings covering the issues and are in brief, as follows:

November 22, 1901, plaintiff's husband owned the premises described in the complaint, subject to a mortgage owned by Gustave Krause. At that time and for a long time prior thereto they occupied such premises as their home. Defendants John and Joseph Poluckie are their sons. On the day named they joined in a conveyance of the property to John, the deed being duly recorded. They took a contract back for their support, which was the consideration for the conveyance. Such contract provided for delivery to the grantors and the survivor of them of specified articles at specified times for maintenance and provided that during their lives, or the life of either survivor, they should have the use of a part of the dwelling house and a specified amount of land for a garden. The contract and deed were duly recorded. The husband died December 23, 1901. December 23, 1903, John deeded his interest in the property to his brother Joseph, the deed being duly recorded. Joseph upon receiving the deed assumed John's obligations under the contract for support. February 26, 1905, he mortgaged the property to defendant Krause to secure an additional loan. Plaintiff at that time, no consideration moving to her, but solely to assist Joseph, quitclaimed her interest in the property to Krause. As part of the transaction it was agreed between the parties that in case of payment of all the indebtedness to Krause within three years the property should be conveyed to plaintiff and Joseph. As a further part of the transaction plaintiff signed a satisfaction which was delivered to Krause, reciting that it was of a mortgage to secure fulfillment of the obligations of a life lease to plaintiff and her husband. There was no such mortgage in fact. As a further part of the transaction, intended to evidence the agreement aforesaid as to re-deeding, a land contract was made which was supposed by the parties thereto and plaintiff to run to the latter and Joseph. The land contract was not recorded till February 9, 1906. Neither plaintiff nor any one concerned intended that the contract for support should be superseded except so far as necessary to secure Krause. Plaintiff could speak only in the Polish language, Krause could speak only in German and imperfectly in English, and Joseph could speak only in Polish and imperfectly in English. Joseph and Krause could not converse with each other except with difficulty in English. Plaintiff and her son were below the ordinary in intelligence and without business experience. All the papers aforesaid except the land contract being recorded, Joseph, February 8, 1906, quitclaimed the property to defendant Wegenke and assigned to him his interest aforesaid in the contract with Krause. The consideration named in the deed was $1,910. The conveyance, contract to Krause and assignment thereof by Joseph were immediately duly recorded. Wegenke was duly informed by Joseph at the time of the transaction of plaintiff's interest in the premises and that his conveyance was subject thereto. February 25, 1906, with knowledge as aforesaid and that plaintiff would insist upon her rights, Wegenke tendered to Joseph at the home on the place then occupied by plaintiff, the balance of the consideration mentioned in the deed to him after deducting the amount due Krause. Joseph refused to receive the money. Wegenke then left it on the table and Joseph straightway deposited the same subject to Wegenke's demand and informed him thereof and at the commencement of the action it was tendered to him and payment thereof upon the trial subject to the order of court was offered. Wegenke knew all the time of plaintiff's interest under the contract for support and that she had been from the beginning and was in possession of the premises, using the dwelling house 40 as a homestead. Such occupancy was adverse to the extent of her interest. Joseph breached the contract for support of plaint...