Donnelly v. Eastes

MaRshall, J. The question upon which this case, turns-mainly is, Was the condition in the deed a condition prece-dente such as must happen before title would vest in the-grantee, or was it a condition subsequent, a breach of' which might be taken advantage of, or operate, under its. terms, to defeat a title already vested? If the latter, a., court of equity had ample power to relieve defendant, upon equitable principles of compensation, from a forfeiture; if the former, the court had no such power. Failure to perform a condition precedent is an effectual bar to any remedy at law, and, in a case like this, to any remedy in equity as well. The law governing this subject is too well settled to require any extended discussion of it, or the citation of authorities, but we call attention to the following in this, court, to which reference may be made: Warren v. Bean, 6 Wis. 120; Hudson v. McCartney, 33 Wis. 331; Drew v. Baldwin, 48 Wis. 529; Redman v. Ætna Ins. Co. 49 Wis. 431; Stoel v. Flanders, 68 Wis. 250; Gates v. Parmly, 93 Wis. 294. This appears to be a harsh doctrine when viewed apart from the reason for it. Courts give effect to contracts according to the intention of the parties,— do not make them. They cannot substitute a new contract for the one the parties see fit to make, because nonperformance on the part of one of the parties thereto becomes difficult, or the consequences of such nonperformance onerous. If one agrees that full performance of all obligations on his part shall be [394] requisite to the enjoyment by him of any benefit under the contract, he is presumed to know the legal effect of assuming such an obligation, to have done it for a consideration, and must abide the consequences of it, and not expect, by the aid of a court of equity, to shift the burden •onto others which he has voluntarily agreed to bear himself. The learned circuit judge decided that the condition in the deed in question is a condition subsequent, and it is difficult to see how any other conclusion can be arrived at, consistent with the decision of this court in Drew v. Baldwin, supra. All the essential elements to be considered in the •deed here were present in the deed there. Here the deed recites that: “Levi Johnson and Minerva, his wife, parties •of the first part, for and in consideration of the agreements on the part of Sarah M. Bastes, party of the second part, to perform the conditions of such deed, hereinafter mentioned, . . . have given, granted, bargained, sold, . . . conveyed, and confirmed, and by these presents do give, grant, , . . sell, . . . convey, and confirm, unto the said party of the second part, her heirs and assigns, forever, the following described real estate: . . Then follows the ■description of the land conveyed, then the conditions, closing with the words: “Upon the death of both said first parties, then the absolute title to all said lands, in fee simple, shall vest in said second party: provided she has fulfilled and performed all of the conditions of this deed; but, in case said •second party shall fail to perform any of the conditions, then this deed shall be null and void, and all rights conveyed shall revert to first parties.” Then follows the usual haben-dum, clause and covenants. This differs from the deed in Drew v. Baldwin only in that in the latter the conditions follow the habendum clause and covenants, while in the former they precede; and in the latter there is no clause to the effect that, on failure to perform, the deed shall be void, [395] and the rights conveyed shall revest in the grantors. But that clause aids in reaching the conclusion that the intent of the parties was to pass a title in prmenti. If such was not the intent, the words “ all rights shall revert ” have no meaning. Such words clear up any such difficulty as the court observed existed in Drew v. Baldwin. The rights conveyed consisted of the legal title to the premises. That was what the language providing for a reversion referred to. Mr. Justice Cole, speaking for the court in Drew v. Baldwin, said: “ It will be observed that it is declared the conveyance shall not become absolute until the death of the grantors. . . . This language implies that an estate was intended to pass by the conveyance. If this were not so, it would seem inconsistent to state that the conveyance should not be absolute until these conditions were performed.” A for-tiori, it would be inconsistent to say, if the deed here did not vest a title in jormenti, that the interest conveyed shall revert on nonperformance of the conditions. The question presented is one of construction. No particular words are necessary to create a condition. The intention of the parties must be determined from the language used by them, and from the subject matter to which such language relates. Such intention being determined, it governs. But, in reaching a conclusion, doubts are rather to be resolved in favor of an intention to create a condition subsequent than precedent. So it is said that if the acts may as well be done after as before the vesting of the estate, or, from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent. 2 "Washb. Real Prop. § M6. Some of the tests of whether parties intend to create a condition subsequent or not are whether a re-entry after demand of performance for condition broken is requisite to revest the title in the [396] grantor, and whether a reversion of the title is provided for, consequent upon nonperformance, without such re-entry. Such tests clearly indicate the character of the condition in question to be subsequent. But it is said, conceding the condition to be a condition subsequent, the forfeiture occurred prior to the commencement of this action; that the action is not to enforce a forfeiture, but merely to cancel the deed. If there were a. rightful entry for condition broken, so that the estate re-vested under the terms of the deed, or even if the title re-vested under the terms of the deed without a re-entry, the-court is yet not powerless to relieve the defendant from the-consequences thereof. But the trial court found that there-was no refusal to perform, and, in effect, that the failure to-perform is attributable largely, if not wholly, to the conduct of the grantor Levi Johnson. There are exceptions to such findings and to others, but an examination of the record fails to disclose any ground to disturb them; hence they must stand as verities in the case. To be sure, the court, also finds, as a conclusion of law, that the defendant was. bound to fulfill without any request on the part of Johnson;, but that finding was made with reference to the status of the parties, respecting the equitable liability for costs and interest. The rule is that the entry for condition broken must be after demand and refusal to perform, in order to make such entry effectual to revest the title. That applies unless, by the terms of the deed, the title revests for breach of condition without re-entry; but then the provision in that regard would not operate except on demand and refusal to perform. 1 Warvelle, Vendors, 464; Cory v. Cory, 86 Ind. 567; Lindsey v. Lindsey, 45 Ind. 552; Bradstreet v. Clark, 21 Pick. 389; Nicoll v. N. Y. & E. R. Co. 12 N. Y. 121. It follows from the foregoing that the court rightly concluded that the real purpose of this action is to enforce a forfeiture,— to divest the estate vested in the defendant. ‘A [397] ■court of equity never actively interferes for such a purpose, even where no equitable relief would be given to the defaulting party against the forfeiture, but will, when compensation can be made in money, compel the complaining party to take it, and relieve against a forfeiture.’ 1 Pomeroy, Eq. Jur. §§ 455, 459; Gates v. Parmly, 93 Wis. 294; Henry v. Tupper, 29 Vt. 358. Applying the foregoing rules to this case, the judgment must be affirmed. There was no difficulty in ascertaining accurately what amount of money it would take to fully compensate the representatives of Johnson for failure to perform the conditions of the deed complained of. The trial court made such determination upon equitable principles, and provided that the defendant should pay the sum so determined within a reasonable time, fixed by the court, as condition of the title vesting in her, absolute, under the deed. By the Court.— Judgment affirmed.