Goebel v. Thieme

Cassoday, J. The will devised to the widow only a life estate in the lands in question. She was by the express terms of the will prohibited from selling the land at all, except upon the condition precedent that she and her son, August, and her daughter, Ernestine, should together agree upon the sale of the land. The defendant claims title to the land by virtue of the quitclaim deed from the plaint [289] iffs. There is no evidence that August ever agreed with his mother and sister that such deed should be made. Without such agreement, no valid deed of the land could be made during the life of the widow. She could only lawfully convey by virtue of the power given to her by the will. As the defendant claims under the deed, the burden was upon him to prove the performance of such condition precedent; that is to say, that such agreement was made by the three, all together, and that the deed was made in pursuance of such agreement. No such proof- was made. We must assume, therefore, that the three never so agreed. It follows that the deed was executed without authority and contrary to the 'express terms of the will, and hence must be regarded as a nullity. What has been said respecting the deed applies equally to the mortgages. They were, in legal effect, conveyances given without authority'and contrary to the express provisions of the will, and hence must be regarded as null and void. Rowell v. Williams, 54 Wis. 636. The question involved being one of power, it is immaterial whether the deed was executed by the plaintiffs or ■either of them with knowledge of its contents or' for a valuable consideration, and the same is true in respect to the respective mortgages. For the same reason it is immaterial whether, prior to such conveyance, August had been paid $200 or any other sum. The manifest purpose of the will was to furnish a sure and permanent home for the widow during her life, and “after” her death to have the land sold' an.d. the proceeds thereof distributed as therein directed, except that the land might be sold prior to her death upon the single condition precedent named. Besides, after a careful examination of the evidence, we are convinced that the mortgages were given for money borrowed to pay expenses and support the defendant’s family, and hence were given for his benefit. This being [290] so, tbe payment of the mortgages by him was, in equity, simply a payment of bis own indebtedness. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiffs in accordance with the prayer of the complaint.