Sutherland v. Pierner

• Decision Date: 26 November 1946
• Citation: 249 Wis. 462,24 N.W.2d 883
• Parties: SUTHERLAND v. PIERNER et al.
• Court: Wisconsin Supreme Court

249 Wis. 462

24 N.W.2d 883

SUTHERLAND

v.PIERNER et al.

Supreme Court of Wisconsin.

Nov. 26, 1946.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Judge.

Reversed.

This action was begun by the plaintiff, Cora Gayle Sutherland, to quiet the title to certain city lots as against the defendants, Melvin Pierner, Richard Pierner, Loraine Van Beckum, Warren Pierner and Ruth Nicklas. The defendants, except John Pierner, counterclaimed. They asked to have the complaint dismissed; for judgment against plaintiff for the several amounts due; that the judgment be declared a lien on the premises conveyed and foreclosed in default of payment by the plaintiff. The case was tried by the court. The court filed findings of fact and conclusions of law in favor of the defendants and judgment was entered in accordance therewith on November 5, 1945, from which the plaintiff appeals.

The facts will be stated in the opinion.

Lynn D. Jaseph, of Green Bay, for appellant.

Strehlow & Cranston, of Green Bay, for respondents.

ROSENBERRY, Chief Justice.

The facts in this case are undisputed and may be briefly stated as follows: On May 16, 1932, Nellie Sutherland, the mother of Cora Sutherland, also known as Cora Gayle Sutherland, conveyed certain real property to the plaintiff. The deed was given subject to the following conditions:

‘This deed is given to Grantee, subject to the following conditions: That upon my death, that the Grantee must pay to my Grand Children out of my estate, the sums of money indicated after each name; To Harley Pierner $500.00; Melvin Pierner $1000.00; Richard Pierner $500.00; Loraine Pierner $1000.00; Warren Pierner $500.00; Ruth Pierner $1000.00, and Marvin Cropsey $500.’

The deed was duly recorded. It was drawn by a justice of the peace. Harley Pierner died leaving as his sole heir his father, John Pierner; John Pierner by deed properly transferred his interest to the other defendants, share and share alike.

After the conveyance, Nellie Sutherland continued in possession of the premises, collected the rents thereon up to the time of her death. Since that time Cora Sutherland has collected the rents and had possession of the property; that the only other estate or property owned by Nellie Sutherland at the time of her death was a bank deposit of $100. No part of the amount stipulated in the deed has been paid to the grandchildren or any of them.

The defendants answered the plaintiff's complaint and prayed that the plaintiff's complaint be dismissed; that each of them have judgment for the amount to be paid them under the terms of the deed and for an additional sum each one-sixth of $500, the share which was to have been paid to Harley Pierner; that the judgment be held and declared to be a lien upon the premises conveyed to the plaintiff by her mother; that in default of payment of the amount due the defendants, the defendants may have foreclosure of said lien by sale of the premises and application of the purchase price in payment of said judgment, and that a trust fund be set up for the payment of the amount found to be due to Marvin Cropsey. The judgment granted the relief prayed for in the counterclaim, directed a sale of the premises in case of default and adjudged that:

‘If the proceeds realized from said sale shall be insufficient, after paying the costs of the action and of making sale, to pay the full amount adjudged to the said defendants, as above adjudged and directed, then that the said Sheriff pay and distribute the proceeds of such sale applicable thereto to each of said defendants in the proportion which the sum adjudged to each bears to the whole amount adjudged to all.

‘That if any deficiency arises upon such sale in the payment of such sums so adjudged to be due, said Sheriff shall specify the same in his report of sale, and that Judgment may be rendered therefor on the confirmation of such sale against the plaintiff, and that the purchaser, or purchasers, at such sale be entitled to a writ of assistance to obtain possession of the premises sold in manner as provided by law.’

The plaintiff contends on this appeal that the trial court was in error in holding that the defendants were entitled to a lien upon the land to secure the payment of the amounts due them; in awarding personal judgment against the plaintiff for deficiency; and in holding that the interest of Harley Pierner passed by inheritance to his father, John Pierner, and was not assignable to the remaining defendants.

The contentions of the plaintiff make it necessary for us critically to examine the clause of the deed above quoted. Does the provision as plaintiff contends (1st) charge the payment of the $5,000 upon the estate of the grantor and not upon the lands conveyed, or (2) as the court held is a contract created for the benefit of third parties-the named grandchildren-or (3d) does the quoted provision create a trust for the benefit of the named grandchildren?

Plaintiff's contention is based upon the use of the word ‘estate’ in the clause. This contention gives to the word ‘estate’ a very restricted and technical meaning. It appears that the instrument was drawn by a justice of the peace not skilled in the use of technical terms and that by the conveyance the grantor transferred practically all of the property of which she was possessed to the plaintiff, so that upon her death, she left practically no estate. According to the record she did not possess an estate exceeding $100 at the time of her...