Wier v. Simmons

Tavlor, J. The important question to be determined on this appeal is whether, by the terms of the deed from Blotz ±o Frank Eeichling, set out in the complaint, Nicholas Eeich-ling took the title in fee to the lands described in said deed after the death of said Frank Eeichling, charged with the payment of $111 to his brother and to each of his sisters within five years after the death of his father, Frank Eeichling, or whether he took the estate subject to forfeiture in case he refused to pay said several sums to his brother and sisters within the time fixed. On the part of the learned counsel for the appellant it is insisted that the deed clearly vested the title in Nicholas, subject to forfeiture for the non-performance of a condition subsequent, viz., the failure to pay the brother and sisters each the sum of $111 within five years from the death of his father; that the provision in the deed is strictly a condition subsequent, and cannot be construed into a provision to charge the estate in his hands with the payment of said sums. It was therefore optional with him whether he would perform the condition subsequent, and thereby perfect his title, or whether he would refuse or neglect to perform it, and thereby forfeit his estate therein. "Whether a provision in a deed or will, which, as a part of the consideration, requires the payment of money to third persons by the grantee or devisee therein, within a fixed time .after the title and right of possession vest in him, will be construed to be a charge upon the land, or whether it will be «construed to be a condition subsequent, depends upon the intent of the parties to the conveyance, or of the testator in the case of a devise, and it will always be construed to make [642] a charge upon the premises, unless a different intent is clearly apparent, or in the case of a deed the language is so clear as to leave no room for construction or doubt. The complaint in this case would have been more satisfactory if it had fully disclosed the nature of the transaction between the original grantor, Blotz, and the father, Frank Reichling. If by proper allegations it had been clearly shown that Blotz received a full consideration for the land from Frank Reichling, that Blotz was a stranger to the Reichlings, and that the extraordinary provisions of his conveyance were dictated by Frank Reichling alone, for his benefit and the benefit of his children, it seems to us very clear that the provisions referred to would not be construed into a condition subsequent, by the non-performance of which the title would revest in the grantor, Blotz. Such a construction would be against the intent of Blotz, who clearly intended to divest himself of his entire estate, absolutely and without anj>- condition; and it would also be clear that the provision was not inserted for the benefit of Frank Reichling, the father, to forfeit the estate in his favor, because the condition could not be broken and the forfeiture take place until five years after his death. In that view of the case it would be very certain that the condition or provision was made solely for the benefit of the brother and sisters of the second grantee, Nicholas Reich-ling, and that the payment of the sums mentioned to the brother and sisters of Nicholas was required by the father as a part of the consideration to be paid by Nicholas for the estate, which was made to vest in him at the death of the father, and that such payments were to be made by Nicholas in case he accepted the estate. We think, notwithstanding the want of any express allegations of the complaint showing the exact nature of the transaction between Blotz and Frank Reichling, that we are at liberty to construe the complaint as showing that Blotz intended to and did divest him [643] self of. all present and future right to said lands, and that the provision for the payment of $114 to the brother and each of the sisters of Nicholas was inserted therein at the suggestion of the said Frank Eeichling, for the benefit of such brother and sisters. In that view of the case, for the purpose of giving effect to the intent of the parties, and to prevent a forfeiture, we ought to construe the words “ upon the express condition,” etc., to mean subject, however, to the payment by the said Nicholas Eeichling of $114 to his brother and to each of his four sisters within five years after the death of his father, Frank Eeichling. Such construction, we are very clear, will effectuate the intention of the parties without doing violence to the language of the deed itself. The rule is well settled that conditions subsequent which, work a forfeiture of the estate are not favored in the law, and no language will be construed into such a condition contrary to the intent of the parties when such intent can bo derived from a consideration of the whole instrument, or from the circumstances attending the execution thereof; nor will the language used be construed into such a condition subsequent, when any other reasonable construction can be given to it. The rule was forcibly stated by the late chief justice in the case of Lawe v. Hyde, 39 Wis., 345-356, and the rule there announced is approved in the cases: Lyman v. Babcock, 40 Wis., 503; Morse v. Ins. Co., 30 Wis., 534; Jackson v. Silvernail, 15 Johns., 278; Hadley v. Hadley, 4 Gray, 140; Osgood v. Abbott, 58 Me., 74; Merrifield v. Cobleigh, 4 Cush., 178. Having reached the conclusion that the deed should be construed so as to vest the title of the real estate therein described in Nicholas Eeichling after the death of his father, not subject to forfeiture, but subject to the payment of said sum of $114 to his brother and to each of his sisters within five years after the death of the father, the only other question to be determined is whether, so construed, the several sums [644] so secured to the brother and sisters are a charge or lien upon the lands conveyed. That they are a lien and charge upon the lands which can be enforced in equity, we think is well settled, both upon principle and authority. This court held in the case of Powers v. Powers, 28 Wis., 659, that “ a will which, after devising certain lands to E. P., added, ‘ and it is also understood that the said E. P. is to pay or cause to be paid to O. P. within one year the sum. of $200,’ ” created a charge upon the land so devised for the payment of the $200; and the devisee having accepted the land under the will, he held it in trust for O. P. to the extent of the $200, and that the proper circuit court had jurisdiction to enforce the trust by a sale of the land for the payment of the same, with interest. The decision in that case is supported by a long list of authorities, among which are the following: Harris v. Fly, 7 Paige, 421; Clyde v. Simpson, 4 Ohio St., 445; Nellons v. Truax, 6 Ohio St., 97; Hill v. Huston, 15 Grat., 350; Bugbee v. Sargent, 23 Me., 269; Kightley v. Kightley, 2 Ves. Jr., 331; Lupton v. Lupton, 2 Johns. Ch., 623; Rogers v. Ross, 4 Johns. Ch., 404; Kelsey v. Deyo, 3 Cow., 133; Luckett v. White, 10 Gill & J., 480; 3 Jarman on Wills (5th Am. ed.), 402-3, and notes. It is true that in all the cases above cited the question arose upon the construction of the provisions of wills, but we see no reason why the same construction should not be given to a conveyance made to a grantee who paid the consideration for the whole estate, and which by his direction is made to vest an estate in his son after his death, subject to the payment of certain specified sums to another son and his four daughters. The court in all cases endeavors to give effect to the intent of the parties to the conveyance, no matter what its form or nature; and it seems to us very clear that it was the intent in this case that Nicholas Reichling should have the estate after the death of his father, subject only to the payment of $114 to the brother and to each of the four sis [645] ters, and that such payments were in the nature of a consideration to be paid by bina for the estate granted. The allegations of the complaint show that Nicholas so understood the grant, for he paid two of the beneficiaries after he accepted the, grant and took possession thereof. In equity there is a lien upon the estate conveyed for the consideration money. The defendants took the estate with notice of the lien or charge. It was made apparent upon the face of the recorded deed of their grantor, and as the mortgages under which they claim title were given long before the money became due and payable, they took the risk of the payment by their grantor when it became due, and took the estate subject to the lien and charge if their grantor failed to pay the same. In the view we have taken of the case, the original grantor, Blotz, had no interest in the controversy, having divested himself of all interest in the property by his deed to Frank Keichling. This being an equitable action for the purpose of subjecting trust property to sale for the payment of equitable liens thereon, all the lien holders or cestui que trusts are proper parties to the action and may join as plaintiffs; and this is especially so where all their liens are based upon the same contract and grew out of the same transaction. By the Court.— The order of the circuit court overruling the demurrer is affirmed.