Mash v. Bloom

114 N.W. 457, 133 Wis. 646, 1907 Wisc. LEXIS 84

Opinions

KeRwiu, J.

The complaint is very voluminous, setting forth in detail transactions between plaintiff and defendant and facts and circumstances relating to the property, much of which is wholly immaterial upon this appeal. The substance of the complaint, so far as material here, is to the effect that on November 23, 1904, plaintiff was the owner of the real estate in question, and that on said day she conveyed the property to the defendant by warranty deed. The consideration for said deed is alleged in the complaint to be love and affection and one dollar, which one dollar it is alleged was not paid, and the further special consideration to the effect that defendant and his wife were to care for plaintiff, minister to her wants, look after her household affairs, and do and perform divers other things mentioned in the agreement between the parties. The deed further provided that the defendant and his wife, during the life of plaintiff, should live in the house on the premises and be .good and kind to plaintiff, take care of her, and minister to her wants during her life as good, loving, and affectionate 'children would do for parents. It is alleged that defendant .■and his wife have failed to carry out and perform the considerations and conditions of said deed. The complaint further alleges:

“The plaintiff here elects to rescind and does here rescind said deed and all contracts and agreements therein contained or relating to the matters and things therein contained, because of the breaches, matters, and things hereinbefore stated and set forth in this complaint, and she now claims her right to re-enter the northeast half of said lot 5 in the ■same right and manner as she would have and be entitled to do had said deed never been made, executed, or delivered by the plaintiff to the defendant as aforesaid.”

The complaint also contains the following allegations:

“Defendant does now and he has wrongfully and unlawfully withheld possession of the said premises from the plaintiff, to her great wrong and damage.”

And again:

“That the defendant does now and he has wrongfully and unlawfully retained possession of the northeast half of the said lot 5 and has unlawfully deprived the plaintiff of the use and possession thereof.”

The complaint prays that “the plaintiff’s right, interest, and title . . . may he found and determined hy the court and the final judgment herein.”

The complaint fails to • state the statutory requirements for a complaint in ejectment, and especially in the following particulars, namely: As tO' the plaintiff’s estate or interest in the premises or that plaintiff is entitled to the possession of the premises. It is well settled that the requirements of the statute in complaints in ejectment must he strictly complied with. Barclay v. Yeomans, 27 Wis. 682; Lee v. Simpson, 29 Wis. 333; Platto v. Jante, 35 Wis. 629; Wilson v. Henry, 40 Wis. 594; M. E. Church v. Northern P. R. Co. 78 Wis. 131, 47 N. W. 190. Hot only has'the plaintiff failed to allege in her complaint the statutory requirements, hut she has negatived a right to recover at the time of the commencement of action by showing a conveyance of the property to defendant on condition subsequent, and failure to show in the complaint any action evincing a purpose on her part to reinvest herself of her former estate because of forfeiture on account of condition broken. There could have been no wrongful withholding of the premises until the plaintiff elected to take advantage of condition broken and so notified the defendant, either by demand of possession or some other act equivalent to a re-entry for condition broken. Until this was done no right of action to recover possession of the premises existed. This doctrine has often been recognized by this court and is supported by the authorities cited in respondent’s brief. Drew v. Baldwin, 48 Wis. 529, 533, 4 N. W. 576; Pepin Co. v. Prindle, 61 Wis, 301, 21 N. W. 254; Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585; Rogan v. Walker, 1 Wis. 527; 4 Kent, Comm. (7th ed.) 131; Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118; Maginnis v. Knickerbocker I. Co. 112 Wis. 385, 88 N. W. 300; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671; Nicoll v. N. Y. & E. R. Co. 12 N. Y. 121.

In Wanner v. Wanner, supra, this court, in speaking of the effect of breach of condition subsequent in a case quite similar to the one before us, 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 the son 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 place by reentry or its equivalent, and the deed will be set aside.”

In the case before us the entire title passed to the defendant upon a condition subsequent. No estate remained in the grantor. There remained only a possibility of reverter, which could ripen into a title only by breach of condition subsequent and re-entry or its equivalent. In Nicoll v. N. Y. & E. R. Co. 12 N. Y. 121, the court said (p. 131) :

“A mere failure to perform a condition subsequent does not divest the estate. The grantor or his heirs may not choose to take advantage of the breach, and until they do so, by entry, or by what is now made by statute its equivalent, there is no forfeiture of the estate. This was the common law, and it has not been altered by statute so as to give a right of entry to an assignee in any instance not coupled with a reversionary interest, as in the cases of estates for years and for life, except in cases of leases, or rather of grants in fee, reserving rent.”

So, too, the grantor may waive his right of re-entry and thereby lose the condition of his grant. Maginnis v. Knickerbocker I. Co. 112 Wis. 385, 88 N. W. 300.

In addition to the foregoing cases, to which our attention has been called by respondent’s counsel, we are also cited to Austin v. Cambridgeport Parish, 21 Pick. 215; Dana v. Dana, 185 Mass. 156, 70 N. E. 49; and Allen v. Howe, 105 Mass. 241. Austin v. Cambridgeport Parish, supra, merely holds that the statutes of Massachusetts modify the strict rule of the common law respecting the actual re-entry for condition broken, and that under the statute the demandant is no longer required to prove an actual entry in those cases where such entry was necessary at common law. In Allen v. Howe, supra, it appears’ there was an entry in May, 1869, and the suit was commenced in August, 1870, and we cannot see that this case in any way supports the respondent’s position. In Dana v. Dana, 185 Mass. 156, 70 N. E. 49, the estate conveyed was a life estate, the grantor retaining a re-versionary interest. Moreover, the question before us is not touched in the case. The decisions of this court heretofore referred to clearly recognize and assert the doctrine that for breach of condition subsequent similar to the one in the deed in the instant ease a re-entry or its equivalent is necessary in order to revest title; and there is abundant authority elsewhere to the same effect. 2 Washb. Real Prop. (6th ed.) § 957; Tiedeman, Real Prop. (3d ed.) § 207; 3 Kerr, Real Prop. § 1901; Osgood v. Abbott, 58 Me. 73; Tallman v. Snow, 35 Me. 342; Warner v. Bennett, 31 Conn. 468.

The person entitled to the estate on condition broken may decline to take advantage of the failure to perform, in which event the estate is not defeated, because the mere failure to perform a condition subsequent like the one in question does not in and of itself divest the estate. Nicoll v. N. Y. & E. R. Co. 12 N. Y. 121; Wanner v. Wanner, 115 Wis. 196, 91 N. W. 671. It would seem most unreasonable, therefore, to hold that before the title had revested, and before the grantee had any notice that the grantor desired to repossess himself of his former estate, the grantee could be subjected to action and costs. The theory of the action of ejectment is that the defendant wrongfully withholds possession from the plaintiff. And clearly there can be no wrongful withholding before the title revests in the grantor and the grantee has notice that the grantor desires to take advantage of the forfeiture. Our statute on the subject of ejectment supports the .doctrine that there must be a wrongful withholding before ejectment can be maintained, and that the plaintiff must have the right of possession when the action is commenced, and provides that the complaint shall contain such allegations. Sec. 3071, Stats. (1898). This section provides that the complaint shall state the nature and extent of plaintiff’s estate or interest, whether in fee, for life, or for years, and that he is entitled to the possession of such premises, and that the defendant unlawfully withholds thé possession from him. And sec. 3074, Stats. (1898), provides that no person can recover in ejectment unless he has at the time of the «commencement of the action a valid subsisting interest in the premises and a. right to recover the same, or the possession thereof, or some share, interest, or portion thereof. True, sec. 3079, Stats. (1898), provides that it shall be sufficient for plaintiff to show a right to the possession at the time of the commencement of the action as “heir, devisee, purchaser or otherwise.” But this statute, we think, does not obviate the necessity of showing that such right was vested in plaintiff when she commenced the action and that she then was entitled to possession, and was not entitled to possession until she became revested of her former title by reentry or its equivalent. This revesting of title does not necessarily require an actual re-entry on the land, but it does require at least a rescission of the deed by the grantor and an assertion in some form by the grantor of his purpose to repossess himself of his former estate, notice thereof to the grantee, and demand for possession or its equivalent. Otherwise the defendant may be subjected to action and costs upon an alleged tortious act (tbe unlawful withholding of the-premises) which he never committed.

Oases may be found in the books which appear to furnish, some support for the respondent’s contention, but a careful examination of them will show, we think, that they are distinguishable from the instant case. Some rest upon’ the express terms of the condition, others are between vendor and' vendee under land contracts, others are controlled by statute- or particular facts showing no notice necessary, and still others are cases where a reversion is reserved in the grantor- or there is a limitation. In Cowell v. Brings Co. 100 U. S. 55, the continued performance of the condition was made a-condition of the title by express terms and was self-executing,, the nonperformance of which by its terms revested the estate-in the grantor without any further act on his part. While there is a statement in the opinion in Buck v. Boch Island, 97 U. S. 693, to the effect that suit may be brought without-actual entry or previous demand, the opinion recognizes the-doctrine that the estate remained in the grantee r until consummation of the forfeiture. The court said (p. 696) :

“If the condition subsequent were broken, that did not ipso facto produce a reverter of the title. The estate continued in full force until the proper step was taken to consummate the forfeiture. This could be done only by the grantor during his lifetime, and after his death by those-in privity of blood with him.”

Under onr statute the forfeiture must be consummated and title revested before ejectment can be brought. In Cornelius v. Ivins, 26 N. J. Law, 376, there was an express provision, in the condition that the deed and estate granted should cease, determine, and become utterly void, and the premises-revert to the grantors, their heirs and assigns, and revest in. them in as full and ample a manner as if the deed had not been made. Other cases where it is held re-entry or its. ■equivalent is not necessary, where the question arose between vendor and vendee under land contracts, are Dean v. Comstock, 32 Ill. 173; Seabury v. Stewart & Easton, 22 Ala. 207; Hotaling v. Holaling, 47 Barb. 163; Olcott v. Dunklee, 16 Vt. 178.

We thirds: none of these cases are controlling here. Under our statute, in order to maintain ejectment the plaintiff must have the right of possession when he begins the action, and such right does not exist in a case like the one before us until there is a reversion of title. The complaint does not contain the necessary allegations provided by statute, and the facts pleaded show that at the time of the commencement of the action plaintiff had not taken advantage of the forfeiture by re-entry or its equivalent, so< as to reinvest herself of her former estate, and therefore she neither had title •or the right of possession, nor was the defendant unlawfully withholding possession. Eor the reasons stated we think the demurrer should have been sustained.

By the Gouri. — The order appealed from is reversed, and the action remanded for further proceedings according to law.