Cross v. Bowker

Dodge, J. It is sharply contested in this case whether, upon the doctrine laid down in Bogie v. Bogie, 41 Wis. 209, and following cases, any cause of action in equity to set aside the deed and revest title in the parent grantor becomes so completely vested as to survive by virtue of .sec. 4253, R. S. 1818, unless the grantor in his lifetime in some manner exercises his election to pursue "that remedy rather than to enforce the contract for support by legal action, or to seek other redress inconsistent with the rescission of the convey500 anee. It is also a subject of controversy whether, if any such cause of action becomes so vested and survives, the survival is to the heirs or to administrators. We do not, however, in this case, find it necessary to decide either of these questions. We think the conduct of the plaintiffs is such as to preclude them from seeking from a court of equity the relief here demanded, namely, the entire rescission of the conveyance and revesting in the heirs at law of the title to the homestead thereby conveyed. It appears by the findings that since November, 1894, the present holder of the title, Jones, has been performing the contract for support to the satisfaction of its beneficiaries, and is still performing it; that such conduct has been open and notorious; and that such performance has been upon the faith of the conveyance of the land to .him, and the assent thereto by the beneficiaries of the contract for support. The plaintiffs, if they desired to enforce a right to rescind the conveyance and take from both Ella Tice and the defendant Jones the land conveyed, could as well have acted in 1894 as at the present time. ' Inasmuch as this action addresses itself to the broadest of the equitable powers of the court, a form of relief resulting in such hardship to the defendant by reason of this delay on the part of the plaintiffs should not be accorded to them. THeir delay until after the death of their mother, thereby subjecting the defendant to the burdens resulting from her support in her old age and last illness, has brought about such a situation that the relief prayed, even if otherwise equitable to them, would be inequitable to the defendant, and ought not to be granted. Frederick v. Douglas Co. 96 Wis. 415. By the Gourt.— Judgment reversed, and cause remanded with directions to dismiss the complaint.