Glocke v. Glocke

Maushall, J. The disposition of this case by the trial court was not complete in that there was a failure to make — 308 — findings covering the allegations o-f tbe counterclaim constituting a cause of action for a reformation of tbe deed. However, appellant does not appear to bave been prejudiced thereby, because tbe evidence did not establish such allegations with sufficient certainty to warrant findings in bis favor.. It is elementary that a written contract or instrument cannot be reformed so as to include matters alleged to bave been omitted therefrom through mutual mistake, or mistake of one party and fraud of the other, without entirely clear and satisfactory proof of all the facts involved, — proof which will admit of no reasonable controversy. Meiswinkel v. St. Paul F. & M. Ins. Co. 75 Wis. 147. In such a case the party upon whom the burden of proof rests must do more than to-produce a mere preponderance of the evidence tending to-establish the facts in his favor to a reasonable certainty, as in an ordinary civil case. The court cannot overturn the solemn agreements of parties, as indicated by their writings, by merely choosing between conflicting reasonable inferences,, where there is a fair controversy yet remaining. The inferences must be substantially either all in, favor of the reformation requested or must so overbalance the inferences-to the contrary that a reasonable person would not be liable to act thereon otherwise than in favor of the major inferences. Many courts hold the degree of certainty with which a contract must be established to warrant changing a written agreement, intended to, embody that which the minds of the parties met upon but which fails to do so> is the same as that required to-warrant conviction in a criminal case, i. e., beyond a reasonable-doubt. This court has not gone quite that far, but has followed the rule which generally prevails, that the facts must be established, as before indicated, beyond reasonable controversy. Perhaps it may well be said that the difference between the two rules is quite shadowy and inconsequential, yet it is considered that there is a difference. In Kropp v. Kropp, 97 Wis. 137, the language used was, “The — 309 — rule wbieb governs in tbis class of cases is that tbe facts ■requisite to a recovery must appear by clear and satisf acfcory ■evideiice, or, as is usually said, tbe proof of tbe facts must be entirely plain and convincing.” In a later case, Fillingham v. Nichols, 108 Wis. 49, speaking on tbe same subject, tbe 'court said tbe proof should be sucb as to establish tbe facts “beyond reasonable controversy.” Tbe language is probably more comprehensive than any other of tbe various expressions commonly used. Tbe supreme court of tbe United .'States uses similar language in respect to tbe subject: “In each case the burden rests upon tbe moving party of overcoming tbe strong presumption arising from tbe terms of .a written instrument. If tbe proofs are doubtful and unsatisfactory, if there is a failure to overcome tbis presumption by testimony entirely plain and convincing beyond reasonable controversy, tbe writing will be held to express correctly tbe intention of tbe parties.” Howland v. Blake, 91 U. S. 624. A brief review of tbe evidence will be sufficient to demonstrate that it comes far short of satisfying tbe standard above indicated. Appellant Albert Qlocke said that when tbe paper was made tbe understanding was that tbe farm implements would stay on tbe place. Defendant Bmma> Qlocke said tbe .same and that respondent consented to give appellant tbe farm and personal property. Neither of tbe defendants testified that there was anything said about personal property being mentioned in tbe conveyance or contract. Both testified that they knew within a few days after tbe papers were drawn that respondent claimed tbe personal property and that no mention thereof was made therein. They did not make any ■complaint in respect thereto or intimate in any way that any mistake bad been made in tbe writings. With full knowledge of tbe facts, and without objection, nearly a year after tbe papers were made, they entered upon tbe performance of their obligations, and there is nothing to show that they ceased performance because of any breach upon respondent’s part — 310 — either of the written contract or the contract they claimed should have been reduced to writing. Respondent testified that he did not agree to convey the personal property or have any such thing in mind; that the only time such property was mentioned was when the papers were being signed, when he said to appellants: “If you keep me good, everything will be left. Not a pin will be taken off. If yon do not keep me good I will do what I have a mind to;” and that he never said anything other than that to any one. The scrivener who drew the conveyance and mortgage testified that respondent used some such language; that no directions were given to him to embody in the conveyance any reference to the personal property; that the parties talked partly in German and partly in English. Two relatives of appellant testified that respondent said to them the day the papers were made that he had given everything to his son. So it will be seen that the evidence, that the parties agreed that the conveyance of property to appellant should include respondent’s personal property on the farm, is not entirely clear and satisfactory. All parties were present when the papers were drawn. Appellant must have heard and participated in giving directions to the scrivener; yet there is an entire absence of testimony as to anything having been said to him about mentioning personal property in the papers. The evidence corroborating appellant’s version of the matter is no stronger than that corroborating respondent’s version. The case stands substantially on the evidence of the opposing parties. It is far too weak to warrant changing their written contract. The claim is made that the findings of fact are riot supported by the evidence. As we understand defendants’ counsel, they do not contend but that substantial breaches of defendants’ obligations were established if the contract between the parties required them' to reside upon the farm or where they could render respondent personal attention, but say the contract will not bear that construction. In our judgment — 311 — it mil not reasonably admit of any other construction. Respondent’s purpose clearly was to make provision for bis support during tbe balance of bis life, including care and nursing in sickness and all tbe attention wbieb a person in bis declining years might probably require. It is not reasonable that be would have thought of intrusting bis future in those respects to any one but a member of bis family, or that be would have made such a disposition of bis property as be did with tbe idea that bis immediate associate or associates during tbe last years of bis life might be a stranger or strangers, — ■ persons who would have no interest whatever to care for him but tbe expectation of pecuniary compensation to be paid by another; that be should have mere hired attention. Respondent bad in mind tbe benefits of filial regard, — something which, under ordinary circumstances, uninfluenced by disturbing conditons, is invaluable; something which can neither be estimated in nor bought with money, nor made tbe equivalent of anything else in a mere commercial transaction. Tbe natural yearning of a person to have in bis declining years tbe full benefit of that regard is well illustrated by tbe frequency with wbieb persons, circumstanced as respondent was when tbe transaction in question occurred, part with all or substantially all their property, trusting to tbe beneficiary to administer tbe same with tbe fidelity which becomes a son, in face of the fact shown by experience, that failure, absolute failure, will probably result, and be accompanied with loss of tbe enjoyment that legitimately belongs to tbe parental relation; and not only by loss thereof, but a substitution therefor of tbe most annoying of all hostile relations that can exist between acquaintances not going .to tbe extent of imperiling safety of person or property in a physical sense. Such contracts have come to be looked upon as almost if not quite presumptively improvident in their inception, and in that view courts of equity have gone to great lengths to remedy tbe mischief by reading out of them a.conditon, where — 312 — a covenant only is expressed, upon wbieb may be founded, on principle, a right of rescission where justice requires it for the protection of the weak, the exercise of which will undo the mischief ab initio and restore the parties, substantially, to their original situation. In this case it seems that the hope and expectation of filial regard was the moving cause on the part of respondent in transferring his property to his son. The contract contained the characteristic features found in most agreements of its class, with which courts have commonly had to deal. It obligates appellant and his wife to give respondent good and proper care and nursing in sickness and to hold themselves ready at all times to execute respondent’s request to procure for him a physician; and it required the doing of things for him from day to' day that could not be done other than by the personal presence of the son and his wife, or one of them, and which would not in the nature of things have been intrusted to any one with power to delegate it to another. We cannot doubt but that one of the primary considerations for the conveyance made by respondent was the agreements, as he understood them, which would secure to him the personal presence of his son during his last years. That is as plainly written into the papers by reasonable construction of them as if it were literally expressed. The contract reposed in appellant a trust of the most important character — that of caring for the daily wants of an aged parent in health and sickness to the end of his life, — a trust which only the trustee, under proper conditions, could properly exercise' — one that never ought to be delegated, never can be properly delegated to another not in the same relation. Divan v. Loomis, 68 Wis. 150. Looking at the evidence in the light of common experience, and the construction generally put upon instruments similar to the one before us, we must hold that it required defendants to live on the land conveyed and to personally execute the agreements on their part to be performed; and that when — 313 — they abandoned tbe farm and set up a borne twenty miles .away, tbey incapacitated themselves from performing their obligations, — breached the same in - such a way as to take from respondent a substantial part of the consideration for ■the conveyance of his property, a part which, taken away, rendered what remained entirely inadequate to satisfy the ■purpose of the conveyance, and without which it would never lave been made. That renders it unnecessary for us to examine in detail the evidence to see whether it sustains each particular violation of the contract of which defendants were convicted by the finding of the trial court. The next proposition submitted by appellant’s counsel is that a transaction of the kind in question is not subject to ■rescission unless it was made generally for maintenance and ■support; that it is not subject to rescission where the agreement between the parties calls for specific payments of money ■or the delivery of property from time to time, the value of which can be readily ascertained, and a mortgage was given ■to secure performance thereof as in this case, though the .agreement may also provide for care and nursing, since damages for a breach in that regard can be measured in money. In view of the law that performance of such a contract as the ■one in question is not delegable, it would seem that counsel’s proposition has been covered by what has been said if it were not for Peterson v. Oleson, 47 Wis. 122, upon which he relies. ‘The contract there passed upon was similar-in all respects to the one before us, and it was distinctly held that the rem■edy by foreclosure of the mortgage, not by an action in equity for a reclamation of the property, applied. The real basis for the jurisdiction of the court in this class of cases, .it seems, ■was not thoroughly established and comprehended. In the ■first case where the court had the subject under consideration, Bogie v. Bogie, 41 Wis. 209, the facts were that the plaintiff, :an aged person, gave the defendant, his son, a deed of his ¿property in the usual form, taking back an agreement as con — 314 — sideration therefor, binding tbe grantee to pay certain sume of money to' other members of the grantor’s family, and to support his father during the remainder of his life. The son failed to' perform any part of his agreement. This court decided that it could not be held that performance of the contract by the defendant was a condition subsequent and that the' conveyance could not be rescinded for nonperformance of such a condition, but that it was within the power of the court to deal with the situation and remedy the wrong by annulling the whole transaction between the parties, forfeiting the title to the property to the father on the ground of fraud, or to prevent the fraud that would otherwise be consummated. No attempt was made to justify the decision on principle, other than by an observation that the equity power of the court to compel specific performance of a contract, where failure to perform wbuld be a fraud upon the adverse party, includes, necessarily, power to annul a contract or conveyance where that is required to prevent injustice. That rule, perhaps, was not broad enough to govern Peterson v. Oleson, upon the theory that damages for the breach complained of were susceptible of measurement in money, and the parties had limited the remedy for the breach by giving-the mortgage to secure performance of the contract. ' It is-significant that Peterson v. Oleson has not been followed in any subsequent decision. We are unable to find that it has-ever been cited as authority. It seems to be out of harmony with Bogie v. Bogie, except upon the theory suggested, and out of harmony with numerous cases that have been since decided, and that it has been impliedly overruled. It is perhaps unfortunate that the real situation in that regard has-not heretofore been made significant by some direct reference-thereto, since counsel for appellant seem to have relied upon Peterson v. Oleson, largely, in bringing this appeal, and it is .not improbable that such case may have ruled many case» — 315 — in trials at the circuit, which, have not been brought to the attention of this court. The only case after Bogie v. Bogie, in which the subject under consideration received attention here, except Peterson v. Oleson, and in which the former was followed, not recognizing any other ground for relief than the one therein stated,, is Bresnahan v. Bresnahan, 46 Wis. 385. When the court, reached Blake v. Blake, 56 Wis. 392, it was suggested that the’ stipulations made by the grantee in the conveyance, or in the contract forming the consideration therefor, might, by construction, be deemed to constitute a condition subsequent,, though in form mere covenants. In Delong v. Delong, 56 Wis. 514, decided at the next term of the court, that suggestion was referred to in connection with references to the first two cases mentioned, the court saying that in each of such cases the obligation of the son rested in covenant, not in condition. True, it rested in covenant in form, but in condition by the rule of construction which the court intimated in Blake v. Blake might be applied to such a transaction, and which the court later repeatedly held was the true ground for equitable interference. In Gilchrist v. Foxen, 95 Wis. 428, the consideration for the conveyance was payment of a sum of money to a person named therein and support of the grantor during his life. The grantee accepted the deed and thereby impliedly agreed to render to the grantor the consideration named therein. In that, -the transaction differed! from each of those where there was a written agreement. The court held that what was a covenant in form should be held to be really a condition subsequent, the breach of which, with re-entry by the grantor, would operate to revest the title to the property conveyed in the grantor. In Knutson v. Bostrak, 99 Wis. 469, the facts, in all essential particulars, were the same as in the case at hand. Plaintiff conveyed property, consisting of a farm and farm implements which — 316 — were for use and in use in connection with such farm, all of the value of $8,000 or thereabouts, to the defendant, his son. The grantor was an old man and made such conveyance to provide for his support and that of his wife the balance of their lives. As evidence of the purpose of the conveyance the son, at the time of the conveyance and as the consideration therefor, gave to his father a written agreement promising to support him and his wife during the remainder of their lives or the life of either of them, to provide them a home on the farm during such period in the dwelling house there situated, and in a part thereof particularly designated, and to do many other things similar to those which appellant promised, to do for respondent here. Performance of the agreement was secured by the son by a mortgage on the property conveyed. The court held that a foreclosure of the mortgage was not the only remedy for breach of the agreement, no reference being made to Peterson v. Oleson, 41 Wis. 122; 'that the agreement contemplated personal attention of the son to the wants of his parents as indicated in the agreement, services which he could not delegate, and that performance of the agreement should be held by construction to be a condition subsequent. The early cases to which we have referred were cited, the court saying, in effect, that it is in accordance with such cases for a court of equity to set aside such a conveyance for breach of condition subsequent. That was not strictly accurate, as we have seen, so far as relates to the precise ground upon which the court rested its decisions in such cases at the start, it being there distinctly held that the obligation assumed by the grantee did not rest in condition und that relief could not be granted on that ground. However, it declared distinctly, what was the necessary conclusion from the history of the subject, that out of such a transaction as the one in question the court may, by rules of judicial construction peculiar to courts of equity, properly — 317 — rea,d a condition, thereby holding obligations which, in form rest in covenant to rest in condition; ox, in other words, that a conveyance made under such circumstances is not absolute — is not to be deemed to have bean so intended by the parties, — but was made and intended to have been made upon condition subsequent; and that the title to the property conveyed may be devested from the grantee and revested in the grantor the same as in any other case of a conveyance upon such a condition. That rule is reasonable. If any of the situations where equity, by construction, so called, may arbitrarily, if necessary, turn a transaction into something entirely different from what the parties thereto expressed in their writings in order to dp justice, can be supported on principle, the one under consideration can. If courts of equity did not possess power to do that, they would be shorn of much of their efficiency to protect the weak, to prevent the realization of contemplated frauds, of unconscionable bargains, and,, generally, of administering justice between man and man. Probably no situation can be named where the exercise of that important power is more needed than just such as the one before us, — one where a confiding parent, in his old age, trusting largely to the affectionate regard of his son, conveys, to the latter all his property to secure support and personal care for the balance of his days, and the consideration, by the wrongful conduct of the son, so far fails that there is no efficient remedy that can be applied to right the wrong other than to restore the parent to the ownership and possession of his property. In such a case the court does not lend its. jurisdiction to effect a forfeiture. The rule in that regard is not violated. The forfeiture, or rescission, as it is sometimes called, is effected by the acts of the grantor, by his re-entry, or its equivalent, for condition broken. Equity lends its aid to quiet the title, as said in Knutson v. Bostrak, 99 Wis. 469. It lends its aid to “set aside the conveyances.” — 318 — Equity deals witb the situation the same as with any other where a reversion of title has taken place by re-entry, or its ■equivalent, for condition broken. It establishes the title to .the property in accordance with the facts and clears away .all apparently interfering writings and records, giving such other relief as may be necessary to fully accomplish that end. Maginnis v. Knickerbocker I. Co. 112 Wis. 385. An examination of the authority by which Bogie v. Bogie, 41 Wis. 209, was supported in the opinion, and others cited to the attention of the court on the argument, bears out what has been said, notwithstanding the remark there found that the decision could not be justified upon the doctrine of forfeiture for breach of condition subsequent. Reid v. Burns, 13 Ohio St. 49, is the only case particularly referred to. ■Remarks are there made indicating that the judicial idea was .that the controversy turned on fraud — the right to a rescission for fraud. Surely the idea of rescission for fraud in the making of the contract would not apply to such a case. The ■subject does not seem to have bean carefully considered. If the doctrine of rescission by election of one party to a contract for breach of condition subsequent by the other party was definitely in mind, no clear statement thereof appears in the language of the court. Tracey v. Sacket, 1 Ohio St. 54, was referred to, but that went on the ground of undue influence in the making of the contract, and the evidence was •ample to sustain that theory. Story, Eq. Jur. § 692 et seg., :and Willard, Eq. Jur. 302 et seq., are referred to. Both ¡authorities, where cited, treat of the power of a court of ■equity to clear away those things existing after a rescission by the party for nonperformance of obligations without which ■the contract would not have been made, and for the breach of which there is no adequate remedy other than a rescission, which have no force in fact but may be used by persons having apparent rights thereunder to the prejudice of the re — 319 — scinding party. After going over all phases of equitable interference in such matters, Willard says (p. 304, Potter’s ed.) : “It is obvious from the preceding views, that the jurisdiction exercised in cases of this sort, is .founded upon the administration of a protective or preventive justice. The party is relieved upon the principle, as it is technically called, of quia timet; that is, for fear that such agreements, whatever may be the character of the instrument, may be vexatiously or injuriously used against him,when the evidence to imp-each them may be lost, or that they may now throw- a cloud over his interest.” 2 Story, Eq. Jur. (13th ed.), § 701, in summing up the matter, uses similar language. The idea expressed is that equity is not invoked to obtain a forfeiture or to rescind the contract itself; that the plaintiff’s rights to that extent may be vindicated by his own election and act; that what he needs is to obtain a judicial establishment of his status in regard to the thing in controversy according to the facts, so he may be freed from danger from outstanding agreements or conveyances which, though void, are apparently good upon their face, and might in some way, presently or in the future, be used to his prejudice. The court so treated the matter in Devereaux v. Cooper, 11 Vt. 103, a case cited to the attention of this court in Bogie v. Bogie, supra. Leach v. Leach, 4 Ind. 628, is another case brought to the attention of the court in Bogie v. Bogie. There the court acted on the authority of Jenkins v. Jenkins, 3 T. B. Mon. 327; Scott’s Heirs v. Scott, 3 B. Mon. 2; Devereaux v. Cooper, supra; and Hefner v. Yount, 8 Blackf. 455, all of which cases except the last were cited by counsel in Bogie v. Bogie. The Indiana court decided, as regards the real situation of parties circumstanced as appellant and respondent were after the making of the papers evidencing their agreement, that the grantee holds the land upon condition subsequent that he will in all things substantially comply with his covenant, and in such cases the — 320 — failure to perform the obligation is a breach of condition subsequent, and a forfeiture of the estate forms a proper subject for tbe interference of a court of chancery. In Hefner v. Yount, supra, the facts were similar to those in Bogie v. Bogie, and the court decided that the grantee held the property conveyed to him subject to forfeiture for nonperformance of a condition subsequent. In Richter v. Richter, 111 Ind. 456, the facts were quite similar to those in the case before us, including the element of a mortgage to secure performance on the part of the grantee and promisee. The court, looking at all the circumstances under which the papers were made, said: “Giving full effect to the rule that conditions subsequent, as they ‘go in destruction and defeasance of estates, are odious in law and shall be taken strictly,’ we are, nevertheless, constrained that the deed and mortgage, taken together, create an estate in the grantee upon condition subsequent, that the latter shall perform the terms stipulated in the mortgage. True, neither the deed nor the mortgage states in express terms that the estate is granted upon condition, but the word ‘condition’ is not necessary to the creation of an estate upon condition, if it plainly appears from the words used that the intent of the parties was to create an estate of that descrip tion.” The controlling circumstance in that case, and in most of the cases of the class to which it belongs, by which courts are enabled to reach the conclusion that the intention of the parties was that the estate granted should be held upon condition, was that the grantor was an old man, that he made the conveyance not only to secure the performance of the obligations referred to in the writings, but performance thereof by the particular person therein obligated, — performance with that affectionate regard for the welfare of the grantor which an aged father has a right to expect of his son and which he has no right to expect from a stranger or any person not standing near to him in the family relation. In such a case, if — 321 — tbe purpose of the agreement substantially fails of realization, nothing short of a restoration of the original status as to the property involved is an adequate remedy. So nothing short of that could be reasonably said to have been in the minds of the parties at the inception of their contract as the consequence that might follow from a breach of it. In that' situation “a condition subsequent arises by clear implication.” 2 Washb. Real Prop. 7. Nothing further need be said to demonstrate that the doctrine of Peterson v. Oleson, 47 Wis. 122, upon which counsel for appellant chiefly relies, and the doctrine of Bogie v. Bogie, 41 Wis. 209, so far-as it is to the effect that relief in such a case cannot go upon the ground of forfeiture for nonperformance of a condition subsequent, is not the law; and that by repeated decisions of this and other courts the law has been firmly established that where a son obtains title and possession of his father’s property, giving as a consideration therefor his promise to support the grantor for life, such promise, whether the manner in which it is to be kept be definitely specified in the writings or not, is not delegable; that the property conveyed is held upon condition subsequent ; that for a breach thereof the title thereto will, at the election of the grantor, no sufficient equitable considerations to the contrary standing in the way, revert, without judicial aid, the same as in any other case of breach of condition subsequent; and that the grantor may have the aid of a court of equity for such appropriate relief as may be necessary to judicially establish his status as regards the property and quiet his title thereto, removing any adverse claim or outstanding paper in regard thereto that may exist, which might be used, presently or in the future, prejudicially to him. That amply justifies the judgment appealed from. By the Oourt. — Judgment affirmed.