Young v. Young

147 N.W. 361, 157 Wis. 424, 1914 Wisc. LEXIS 223

• Court: Wisconsin Supreme Court
• Decided: May 21, 1914
• Status: Published

Opinion

Winslow, C. J.

In this court it is held:

1. Conveyances like the present, made by aged people in consideration of support and care, are deemed to be conveyances made upon condition subsequent, and will be set aside by a court of equity upon proof of substantial failure to perform. Bogie v. Bogie, 41 Wis. 209; Lowrey v. Finkleston, 149 Wis. 222, 134 N. W. 344.

2. In such' a case, although the title to the real estate was in the husband, the wife has such a substantial interest in the carrying out of the contract that she is entitled to bring an equitable action alone (in case her husband refuses to become a plaintiff) for reconveyance of the land and rescission of'the agreement, joining her husband as a party defendant. Especially is this true when a part of the premises conveyed consists, as here, of the homestead. This is simply the application to a new situation of an ancient and familiar equitable principle.

3. Where the agreement for support also provides for the payment of sums of money to third persons and makes such payments a charge on the real estate conveyed, such third persons are not only proper but necessary parties to an action of this nature, in order that their interests in or liens upon the real estate may be bound by the judgment. Mootz v. Petraschefski, 137 Wis. 315, 118 N. W. 865.

4. Whether the parties will be entitled to any other relief than the revesting of the title and the rescission of the agreement is not now decided. The measure and character of the relief to be given can be better determined after the testimony is taken and the facts are determined.

The order appealed from must be modified by reversing that part thereof sustaining the demurrer for insufficiency of facts and affirming the order as so modified, with costs to the appellant.

By the Gourt. — It is so ordered.