Morgan v. Loomis

Cassoday, J. . The deed from the plaintiff to George R. Loomis and the agreement back were parts of one transaction, executed at the same time, and must therefore be construed together, as constituting one paper in law, for the purpose of determining the character of the transaction and the intention of the parties. Bogie v. Bogie, 41 Wis. 209. Being one paper in law, they must either stand or fall together in law. Newbegin v. Langley, 63 Am. Dec. 612. The deed recites a consideration of $200, but it is conceded, and the court in effect finds, that there was no consideration therefor except the agreement back. That instrument is a singular document, and not at all suited to the manifest purpose for which it was drawn. The plaintiff was at the time of its execution a widow, fifty-nine years [599] of age, and so crippled by disease that sbe bad but very little use of ber legs, and could only walk a little by means of crntcbes, and is now nearly seventy • and yet tbe instrument purports to lease tbe premises to ber, “ h&r heirs, executors, administrators, and assigns . . . for and during tbe term of ber natural life.” Since sbe could have no beirs, executors, or administrators during ber life, and bence during tbe continuance of tbe lease, it is very manifest that tbe parties did not comprehend tbe nature of tbe instrument they were executing. Notwithstanding tbe lease to tbe plaintiff, tbe court finds, in effect, that upon tbe execution of tbe papers George E. Loomis went into tbe immediate possession of tbe premises, and remained in such possession up to tbe time of bis death, and during that time bad tbe exclusive use and control of tbe same; and that tbe defendants, as bis legal representatives, have ever since bad such possession, use, and control, as mentioned in tbe foregoing statement. Manifestly none of tbe parties ever understood that tbe old lady was to run and manage the farm as lessee of G eorge E. Loomis, or to be in any way accountable as such lessee. This is apparent from tbe practical construction which tbe parties thus put upon tbe transaction. To construe tbe papers as so intending, would convict George E. Loomis of tbe deliberate purpose of defrauding tbe old lady out of ber farm. Tbe instrument is burdened with unnecessary agreements on tbe part of tbe plaintiff. Sbe expressly agreed therein to be of no expense to Loomis while absent from tbe family; “ to demand . . . only tbe necessaries of life, such as good, wholesome food, suitable clothing, washing, ironing, done at proper times, good care in sickness and in health and until death, . . . and after death a Christian burial; ” while Loomis and wife therein only expressly agree to erect upon tbe plaintiff’s grave “ a suitable tombstone,” and do not expressly agree to furnish the plaintiff with such neces [600] saries during her life; and yet, by necessary implication from the negatives so imposed upon the plaintiff, they do in effect agree to furnish such necessaries during such period, and after death give such Christian burial. Such implied agreements are also strengthened by the provision therein to the effect that in case Loomis and wife should die before the plaintiff, then she was not to be bound to reside with their heirs, but should have the same control over the premises as though both parties were living. By the two instruments, taken together, the plaintiff in effect conveyed the premises to George R. Loomis, his heirs and assigns forever, on condition that he or they would during her natural life (except when she should be voluntarily absent) furnish her with the necessaries of life, such as good, wholesome food, suitable clothing, washing, ironing, done at proper times, good care in sickness and in health and until death, and upon her death a Christian burial, and then erect a suitable tombstone upon her grave. That such was the intent of the parties is plain from the parol testimony, which is admissible in evidence in such cases. The trial court found that there had been a breach of such conditions by the defendants’ neglecting and refusing to furnish such necessaries; and to that finding there is no exception. Besides, it seems to be supported by the testimony. This court has by a long line of adjudications settled the rule that for such breach of conditions a court of equity will, upon proper pleadings, set aside such conveyance and agreement, and do equity between the parties, especially in favor of an aged woman in the condition of the plaintiff at the time of the execution of the papers in question. Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 385; Blake v. Blake, 56 Wis. 392; Delong v. Delong, 56 Wis. 514; Divan v. Loomis, 68 Wis. 150; Stoel v. Flanders, 68 Wis. 256; Hartstein v. Hartstein, 74 Wis. 1; Dickson v. Field, 77 Wis. 439. See, also, Martin v. Martin, 44 Kan. 295. [601] • The principles upon which the rule is based are exhaustively considered in the cases cited, and need no repetition. It is enough to say that they go upon the theory that property thus conveyed shall remain intact for the security of the conditions thus annexed to the grant. The decision of the trial court, however, seems to have been based upon the theory that the property thus conveyed should be held, and the same or its- equivalent should from time to time, as circumstances required, be expended for the' support, maintenance, etc., of the grantor, with the right to permanently retain all not so expended; but that in case such grantee at any time found it for his advantage, interest, or convenience hot to further execute such trust, then he should be at liberty to refuse further-performance, and reclaim all he had expended, less rents and profits actually received. This would not only be unjust to confiding age, but contrary to the rule thus established by this court. We are inclined to think, however, that it is no violation of that rule to allow the defendants for the $150 expended in making permanent improvements ,on the land, less the $50 damage to the' premises by reason of timber cut and removed therefrom. Blake v. Blake, 56 Wis. 392; Delong v. Delong, 56 Wis. 514 By the Qowrt.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment setting aside said deed and agreement, and adjudging title to the land in the plaintiff, subject to the payment at her death, or sooner ■ at her option, of the sum of $100.