Krahn v. Goodrich

Makshai/l, J. Many interesting questions are presented for consideration here, but, as what follows will show, we have not been able to proceed far before reaching an insuperable infirmity in the judgment. Serious objection is made to the findings as a whole; but it does not seem necessary to deal therewith. We will consider only such features as seem to shed some light on the-vital point to which we h^ve referred and the features directly involved therein, some of which are not really findings, of fact, though harmlessly classed as such'. The finding that the farm was worth $4,000 on.the 19th of April, 1897, when it was conveyed to Frank Mittelstadt,. doubtless, had a very important bearing on several other important points in the case. It is insisted that such finding is manifestly contrary to the clear preponderance of the evidence and, though contentions of that nature seldom require-reference to the evidence in detail, the one here seems to be a rather striking exception, indicating that the conclusion was reached without appreciating the weakness of the basis for it. The rule that findings of fact made by a trial court will not be disturbed unless contrary to the clear preponderance-of the evidence, giving due weight to the superior advantages below for discovering therefrom, in the light of appearance-on the trial, the real truth of the matter, as has often been said, is a very important one in the administration of jus: tice; but care must be constantly exercised not to treat such — 607 — findings so lightly as to really classify them with jury findings. It must be appreciated that there is some difference as to the former, requiring the evidence on each side to be weighed and probabilities to be put against probabilities, sufficiently to determine whether those on one side so manifestly outweigh those on the other as to clearly answer to the call for that dear preponderance essential to disapproval of the result complained of. The logic of the rule contemplates that a finding is not, necessarily, to be sustained merely because there is some evidence which, if not controverted, would support it. The finding in question rests on the evidence of two witnesses ; one being a plaintiff and the other a person who, evidently, was personally friendly to plaintiffs and unfriendly to defendant, which circumstances have a material bearing ■on their credibility. Furthermore, neither of the witnesses qualified to testify by showing, affirmatively, that he knew the fair market value of the property in 1897, either by reference to actual sales of similar property, or otherwise, and the evidence as a whole, is quite barren of circumstances of a corroborating nature. Opposed thereto there is evidence of four witnesses who were, apparently, unprejudiced in the matter and so circumstanced as to be specially credible. One had known the place for forty-five years and lived close by it for some twenty years; one had lived near the place for some-thirty-five years; another owned adjoining land and had known the particular land from before 1897 and the other examined the place in 1899 with a view of buying a farm, and was acquainted with the value of such land. Each qualified, very satisfactorily, to testify to the value. The land was described as light and rough, without any valuable timber, as badly cut up by ravines and impaired by washing, and the buildings were said to be poor, — all of log construction except the house and part of that was of such construe — 608 — tion. They placed the value at from $1,100 to $2,500. There were some quite persuasive corroborating circumstances. In view of the record as indicated, we cannot escape the conclusion that the evidence very significantly preponderates against the finding that the farm was worth $4,000 in 1891. The character of the four witnesses, and their probable appearance on the stand, rather corroborates their testimony than furnishes any warrant for holding that it does not manifestly outweigh the weak opposing evidence. It seems clear that the proper conclusion is that the farm was worth not more than $2,500 and probably less, — somewhere close around $2,200, in 1897, or but a very small amount more than the incumbrance upon it and the other indebtedness of Gottfried Schiefelbein when he made the deed. The error as to the value of the farm, doubtless, led to the conclusion that, by the agreement Mittelstadt made with his grantor, it was intended that he, his heirs or assigns, should pay the three children the amounts contingently provided for them and that such amounts aggregated $1,000 each. There is nothing in the deed indicating that the grantee was to be permitted to pass his obligations on to his vendee. They were expressly made personal on his part. The very nature of the instrument and the whole transaction, including the lease of the personal property, rebut the idea that anything else was contemplated. Any shifting of the responsibility was a breach of the condition of the conveyance. Had there been no express condition, one, if necessary, would have been read out of the instrument by the rule of construction peculiarly applicable to such situations and enforced by forfeiture or otherwise, as needed for the protection of the grantors as to the dominant purpose of the grant and all which were inseparably connected therewith. Gudden v. Estate of Gudden, 113 Wis. 297, 89 N. W. 111; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671; Burgson v. Jacobson, — 609 — 124 Wis. 295, 102 N. W. 563; Gall v. Gall, 126 Wis. 390, 105 N. W. 953; Lowrey v. Finkleston, 149 Wis. 222, 229, 134 N. W. 344. Tbe last case cited, as suggested by counsel for appellant, is directly in point. There the court held that the agreement was purely a personal one for reasons appearing upon the face of the deed, all of which, and others, characterize this case. The two errors indicated led to the finding of fact, so called, that the $1,000 of Mr. Schiefelbein’s indebtedness was paid in ten years, -which was essential to give vitality to the provision for the three children. The condition precedent was payment of the $1,000 by Mittelstadt, — not by any one else or by using the property therefor. Doubtless, considering that the equity in the real estate and the value of the personal property was not large, in view of the burden imposed on Mittelstadt, independently of the provision for the three children, it might be more, than he could bear, he was given the long term of ten years, which might probably span the remainder of the lives of the grantors, to pay the $1,000, and was not compelled to make payment in such time. The entire situation created by the deed and the lease points to a purpose that the entirety should be kept intact for protection of Schiefelbein and wife so long as they, or either of them, should live, otherwise that the property should revert and that such an event was thought to be probable, which was confirmed by Mittelstadt tiring of his bargain in about two yeais and conveying back to his mother without having paid off any of the incumbrances. The manner in which the personal property was turned over to Mittelstadt significantly shows that the intention was that all the property was to be devoted by him, as indicated, not sold or used to pay the indebtedness. His use of the personalty was limited to such time as he should stay on the farm and perform all the conditions of the deed. He was not permitted to dispose of any of it without replacing the same or paying the proceeds over — 610 — to tbe lessor. His interest was not to ripen into an absolute title except upon condition of his remaining on the farm so long as the lessor and his wife, or either of them, should live. While the court found that during the two years Mittel-stadt possessed the farm, he paid $600 of the indebtedness and that, later, the balance was, in effect, paid by him through the transfer to his mother and her transfer to appellant, the evidence shows that the payment of $600, so called, consisted of his taking up the old mortgage indebtedness of $400 and a note of $100, by giving a new mortgage, and paying a small amount of other indebtedness by use of money. The indebtedness against the property, which it was intended should be discharged, was not lessened at all. It was, in the end, satisfied by using the property therefor which was foreign to the purpose of the conveyance to Mit-telstadt. So, not only is the conclusion, that the condition in the deed did not contemplate personal payment by Mittelstadt, not warranted by the facts, but it contradicts the plain letter of the deed, as does also the conclusion that payment of $1,000 of indebtedness -was made in two years, as contemplated by Mr. Schiefelbein. “Pay” is a word of quite comprehensive meaning; but we agree with counsel for appellant that, as used in the deed, it was evidently intended to have its ordinary meaning which is to discharge an indebtedness by the use of money. The thought was payment which' would relieve the property from incumbrance, not a mere change in form, or of creditors, leaving the property burdened as before, or a discharge of indebtedness by using the property therefor. That the ordinary meaning of the word “pay” is as indicated, is supported by Becker v. Chester, 115 Wis. 90, 122, 91 N. W. 87, 650, and cases cited to our attention. Marinette v. Oconto Co. 47 Wis. 216, 2 N. W. 314; Oneida Co. v. Tibbits, 125 Wis. 9, 15, 102 N. W. 897. That, as used in this case, it contemplated the movement of — 611 — money to tbe creditors and actual extinguishment of indebtedness, seems very plain. Therefore it is considered that the conclusion that the circumstance occurred, specified in the deed as essential to vitalize the provision for the three children, cannot be approved. The conclusion should, it seems, have been to the contrary. The decision below that the conveyance of land by one person to another by deed, on condition of such other paying to a third person a specified sum of money, and acceptance of such conveyance, creates a lien upon the land in favor of such third person, is correct,—Wier v. Simmons, 55 Wis. 637, 13 N. W. 873; Williams v. Williams, 82 Wis. 393, 52 N. W. 429; Merton v. O'Brien, 117 Wis. 437, 94 N. W. 340; Powers v. Powers, 28 Wis. 659; Korn v. Friz, 128 Wis. 428, 107 N. W. 659; but where the payment is made contingent upon a condition precedent, the lien is likewise contingent and, if the time limited for such precedent event to occur expires without its happening, the possibility of the lien ripening into an absolute interest no longer exists. That was what happened in this case. By the same logic the doctrine of Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440, and similar cases, has no application here. If one, for a consideration moving to him from another, agrees to pay a third person a sum of money, the law Creates the essential of privity between him and such third person, making a binding contract between them which cannot be impaired by any subsequent agreement between such other and the first person without such third person’s consent; but where the promise to pay is conditional, it will wait upon the condition being satisfied, and if the time set therefor lapses without such satisfaction occurring, the promise falls with it. So the contingent lien and obligation to pay in this case never ripened into absolute rights and, in the nature of things, never can. Thus the end of this case has been reached without any — 612 — necessity for considering whether the language of the contingent provision for the three children is void for uncertainty, or, if not, whether the trial court correctly construed such language, or whether the interest of the three children was extinguished by the statute of limitations, or became unenforceable, by laches, or whether, equitably, appellant should have been adjudged to have a lien upon the property for the value of his improvements superior to any interest of respondents, some of which, particularly the first two, are involved in much difficulty. By the Court. — The judgment is reversed, and the cause remanded with directions to dismiss the same with costs.