Knutson v. Bostrak

Pinney, J. Considerable evidence was produced at the trial showing the relations existing between the parties, and .how completely the family arrangement into which they — 482 — bad entered with the best of intentions bad miscarried and substantially failed to accomplish its purpose. There is no reason, we think, to suppose that the parties, with mutual accord, will again attempt to carry out its provisions. The pleadings and evidence, in our judgment, show abundant ground for rescinding the agreement and the deed of conveyance and bill of sale executed under it, and for restoring the parties, as near as may be, to their former fights and condition. From,a fair construction of the agreement and the various instruments executed at the same time, as applied to the subject matter and situation, we think they mast be construed together, and regarded as parts and provisions of a single instrument. They appear to have been induced largely by the confidence the plaintiffs very naturally had» in their son. An equitable accounting and adjustment of the matters and differences between the parties should be adjudged according to their respective rights as they may appear. The pleadings are so framed that such a judgment may be rendered as between, them, and which will provide for and adjust all their rights and equities. The agreement manifestly required the defendant Bostralc,. in consideration of the conveyance of the lands then made to him by the plaintiffs, to support and care for his aged and infirm parents in sickness and health during their natural lives, or the life of either of them; to furnish to them on the-15th of November in each year, and annually thereafter, certain specified articles of food, and the use of certain portions of the dwelling, with free ingress and egress therefrom to any part of the building; to furnish in the house plenty of good firewood and water ready for use at all times; and “to care for them in all things and furnish them with a doctor and medicine when needed, and at death with a decent burial.” They were transferring and conveying to their son their farm and home with which they had provided themselves by the care and industry of a lifetime, — 483 — where he should personally minister to their wants and necessities, and which was still to be their home and refuge in their declining years. Evidently the language used, taken in connection with the situation and circumstances, clearly indicated and amounted to a promise that he would devote his personal efforts to support and care for them, and carry out the terms of the agreement according to their fair import and meaning. The consideration for the conveyance of the farm and bi.ll of sale of the personal property was the agreement entered into by the son for the support and maintenance of his aged and infirm parents during their lives. The performance of the condition upon which the conveyance and transfer were made was executory, and when taken and construed together, they appear to have been taken and held by the defendant under a condition subsequent for the support and care of his aged parents. Beckman v. Beckman, 86 Wis. 655; Hartstein v. Hartstein, 14 Wis. 1; Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 886; Blake v. Blake, 56 Wis. 393; Belong v. Belong, 56 Wis. 514. It is in accordance with the principle of these cases for a court of equity to freely set aside such conveyances for a breach of such condition, and to do full equity between the parties thereto as the circumstances of the case may require. It is plain that it was intended that the plaintiffs were to be supported and cared for by the defendant, who was to minister to their wants and necessities in their old home, certain portions of which were devoted to and reserved specially for their occupancy and use. It would manifestly be unreasonable to hold that, after the defendant Bostrak had secured the title to this valuable farm, and the personal property transferred by the bill of sale, he might abandon the plaintiffs, and leave them to care for themselves as best they might, and still retain the property conveyed to him. The property so conveyed and transferred to the defendant was transferred and conveyed upon — 484 — a condition of substantial and faithful performance upon his part of the stipulations of the agreement in question. The written instruments, taken together, are upon a condition subsequent that the defendant should fairly and faithfully perform the terms and conditions of said agreement, and that he would support and care for the plaintiffs during their natural lives; and this care we must hold was intended to be personal on the part of their son, in whom they placed special trust and confidence. Instead of keeping faith with his aged father and mother, he virtually renounced his natural and covenanted duty to personally care for and support them, and practically abandoned them, failed to provide them with wood and water, and left them to care for themselves as best they might during the rigor of a long winter, and even drew away and deprived them of much of the fuel provided for their use. His failure to supply them with water suitable for use, or with the proper means to draw it from the well; his failure to keep their rooms in good condition, and to give any personal attention to his mother during her illness in the winter of 1896, or to go into her room in the house in which they all lived during that time, or to render her any personal assistance, and leaving them alone during the entire winter without sending any one to help take care of them; and his absolute refusal in March, 1897, to fulfill or perform in the future the contract he had made,— evinced in the clearest manner an utter and absolute disregard of his plain duty. Finally, he removed from the farm to another one he had purchased a few miles distant, so that he could give little or no aid to them when it might be most urgently required. These acts and omissions and others shown by the evidence indicate an utter renunciation of all duty and liability to perform or discharge his obligations to the plaintiffs under the contract or otherwise, and constitute, as we must hold, a breach of the defendant’s contract of the most substantial character, requiring the exercise of the — 485 — powers possessed by courts of equity to redress such wrongs and grievances. Ye are unable to see how it can be maintained that there has been no such breach of contract as to entitle the plaintiffs to any relief, as contended by defendants’ counsel, or to warrant an absolute dismissal of their complaint. The printed case purports to contain all of the evidence, and Ave do not see anything to warrant the conclusion that the plaintiffs had waived their right to insist upon the performance of the contract in respect to the material and substantial matters indicated, or to any relief for a breach of its provisions. The action brought by the plaintiff Mary Knutson to foreclose the mortgage executed by the defendant to her was dismissed before the present action was instituted. The bringing of that action, and the dismissal thereof, was certainly no waiver of or bar to the present equitable action to obtain the relief therebj’ sought. The right of the plaintiffs to seek and have a rescission in equity of the contract, deed, and bill of sale as for a breach of condition subsequent still remained. The plaintiffs were not restricted or limited to an action for the foreclosure of either of the mortgages executed to secure the performance of the agreement, or the payment of the $2,000 note executed to the plaintiff Mary Knutson. Eor the reasons stated, we think that the judgment appealed from dismissing the plaintiffs’ complaint is erroneous, and must be reversed. The defendant Susan Cady and the defendant Stoughton State Bank do not appear to have answered the plaintiffs’ complaint, or to have contested their right to the relief they have claimed, and the equities between the plaintiffs and these parties, whatever they may be, have not been determined. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded to that court, with directions to render judgment rescinding and setting aside the — 486 — said agreement, and tbe deed of conveyance and bill of sale executed under and in pursuance thereof, and granting the said plaintiffs restitution of said premises, and for such further or other relief as shall be according to law.