Burgson v. Jacobson

KeewiN, J. The principal question involved upon this-appeal is whether the counterclaim states a cause of action. From the facts stated it will be seen that the gist of the counterclaim is that defendant first conveyed his property to his son-in-law, Frank Burgson, in order to provide himself a home, and in consideration of natural affection for plaintiff,, and so that the property at his death might inure to her benefit, his son-in-law agreeing to pay him $30 a year and board during his natural life; that in default of payment an action was commenced by defendant^ which resulted, by agreement,, in the cancellation of the deed to his son-in-law, Frank Burg-son, and the execution of a new deed to plaintiff, by the terms of which defendant reserved a life estate with right of possession, and plaintiff agreed to pay the taxes; that the plaintiff [299] failed to pay the taxes by her agreed to be paid, allowed the-lands to be sold for nonpayment of taxes, and defendant, to protect himself, purchased the tax certificates, and now asks-for cancellation of the deed to plaintiff on the ground that she-has breached her agreement. This claim is made by the defendant, as we understand counsel, upon the theory (1) that-the agreement to pay taxes, under the circumstances, was a condition subsequent, upon the breach of which defendant was entitled to re-enter and rescind the conveyance; and (2) that the plaintiffs complaint does not state a cause of action, and on demurrer judgment should go against the party whose first pleading is bad. 1. Conditions subsequent, especially when relied upon to work a forfeiture, must be created by express terms or dear-implication, and are strictly construed. 2 Washb. Real Prop. (4th ed.) 7 (*447). No express condition is pleaded, nor do we think any can be implied from the facts stated. It is true that a condition subsequent may be implied though none is expressed, but the facts must be such as leave no doubt in the mind of the court that one was intended and necessary to carry out the obvious intention of the parties. The cases in this court relied upon by counsel for respondent do not support his contention. In Delong v. Delong, 56 Wis. 514, 14 N. W. 591, there was an express condition subsequent. All the other cases relied upon, notably Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, where the obligation in form rested in covenant and not in condition, hold that equity will grant relief by declaring a rescission of the conveyance,, because a substantial part of the consideration for the transfer was an agreement to perform personal services and care, for a breach of which the grantor might re-enter and be restored to his former estate. In Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671, Mr. Justice Winslow said: “In such cases it has become the settled doctrine of this court that, when it appears that a substantial part of the consideration for the transfer was the agreement on the part of [300] the sod. to render to the parent personal services and care, this agreement will be treated by a court of equity as a condition subsequent, and, if it be substantially broken through fault of the son, a reversion of title will take placp by re-entry or its equivalent, and the deed will be set aside.” In this class of cases the obligation is held to be a condition •subsequent, because from the nature of the contract the par*ties must have intended to create a condition subsequent, since otherwise upon a breach the purpose of the agreement would be defeated and the grantor have no adequate remedy. The question is fully discussed by Mr. Justice Maeshall in Glocke v. Glocke, 113 Wis. 303, and at pages 320, 321 (89 N. W. 124, 125) it is said: “In such cases, if the 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/ ” Respondent claims that the facts set up in the counterclaim bring him within the rule of Glocke v. Glocke, supra. But in the case at bar the obligation on the part of the grantee is in form a covenant, and compensation for a breach can be measured in money. There is no ground for implying a condition subsequent, and none can be implied. The broach complained of is a failure to pay money- — the taxes — and the counterclaim alleges that on account of the failure of the plaintiff to fulfil her part of the agreement in said deed the defendant elects to set aside and cancel the deed. There is no attempt to set up any grounds for equitable relief except the failure to pay taxes and that the land has been sold for taxes and certificates bought in by defendant. There is no allegation that plaintiff is insolvent, or that she was guilty of any fraud or bad faith in allowing the lands to be sold for taxes, or that defendant will suffer irreparable injury or will [301] be prevented, in the future from reaping the fruits of the-agreement, or that he has no adequate remedy at law, or any other facts showing that defendant is entitled to cancellation of the deed. The tax certificates are owned by defendant* and the plaintiff offered to pay them, with interest, before-commencement of this action. In fact, as we understand respondent’s counsel, his principal claim for rescission is upon the ground that the agreement to pay taxes is a condition subsequent, for a breach of which defendant can re-enter and have a rescission of the deed, under the rule of Glocke v. Glocke, supra. This position, we think, cannot be sustained. 2. It is also contended by counsel for respondent that plaintiff does not come into court with clean hands, because-she failed to pay taxes. But plaintiff offered to pay the taxes and perform on her part before bringing this action. She-was therefore not in default when the action was brought. So far as appears from the record, the failure to pay taxes-■may have been by mistake or inadvertence, and, plaintiff having tendered performance before action, it would not be doing equity to turn her out of court and forfeit her estate because at some time she had been in default. After tender of performance she is in court with clean hands, prompt and eager to perform. The deed in question is not a voluntary conveyance within the rule that equity will not interfere to enforce a voluntary contract to convey, or to reform a defective one. But in the case at bar we are dealing with a valid deed supported by a valuable consideration. The complaint alleges that the deed was made upon a valuable consideration, and the facts set up in the counterclaim support this. The contention, therefore, that the demurrer should be overruled because the complaint does not state a cause of action is untenable. We conclude, therefore, that the court below erred in overruling the demurrer. By tlie Gourt. — The order of the court below is reversed, and the cause remanded with instructions to sustain the demurrer.