Summary
determining whether there is a support agreement "involves the intention of the parties at the time when the deed, note and mortgage were executed. . . ."
Summary of this case from In re FillionOpinion
November 11, 1955 —
December 6, 1955.
APPEAL from a judgment of the circuit court for Lincoln county: GERALD J. BOILEAU, Circuit Judge. Reversed.
For the appellants there was a brief by Genrich, Terwilliger, Wakeen, Piehler Conway of Wausau, and oral argument by Neil M. Conway.
For the respondent there was a brief by Wurster Curtis of Merrill, and oral argument by C. B. Wurster.
Summary judgment. The defendants-appellants, Paul Bernsdorf and Adella Bernsdorf are husband and wife. The plaintiff-respondent, Carrie Bergman, is the mother of appellant, Adella Bernsdorf. Otto Bergman, husband of Carrie Bergman and father of Adella Bernsdorf, died on October 2 1953. The Bergmans were the owners of an 80-acre farm in the town of Schley, Lincoln county, Wisconsin. In 1942, while the appellant Paul Bernsdorf was working in Chicago and living there with his wife, Adella, and their children, Otto Bergman informed his daughter, Adella Bernsdorf, that he was in ill-health and was having difficulty in paying the mortgage on the farm in the amount of $2,000. He suggested that the daughter arrange with her husband to move their family to the farm and operate it. He promised that if they would do so, they could have the farm after the death of himself and his wife Carrie Bergman. The Bernsdorfs accepted the offer and took over the operation of the farm on July 1, 1942. The Bergmans and the Bernsdorfs lived together at the farm until about March 1, 1944, at which time Otto Bergman leased the farm to Bernsdorf. The Bergmans took up residence elsewhere. Through Bernsdorf's efforts the mortgage was paid. From outside earnings as an electrician, Bernsdorf contributed about $4,000 for improvements to the farm. On April 29, 1948, the Bergmans deeded the farm to Adella Bernsdorf and her four children upon condition that the title was to pass to the grantees at the death of the surviving grantor, provided that one of the grantees survived the grantors, and provided further that such surviving grantee or grantees be then in possession of the farm under the lease of March 1, 1944, or renewals thereof. Bernsdorf paid to the Bergmans 30 per cent of the proceeds of the milk checks derived from the farm and also provided foodstuffs from the farm to them. Subsequent to the death of Otto Bergman, the widow, Carrie Bergman, in January, 1954, prosecuted an unlawful-detainer action against Bernsdorf in which she charged waste in the cutting of green trees on the farm. Mrs. Bergman did not prevail in that action. Later she commenced an action against Bernsdorf for damages based upon trespass. Bernsdorf threatened to file a petition for the probating of the estate of Otto Bergman, and did so, claiming to be a creditor in view of the payment by him of the funeral expenses for his father-in-law.
Thereafter Carrie Bergman dismissed the trespass action and Bernsdorf terminated the probate proceedings. An arrangement was entered into whereby title to the farm was to be vested in the Bernsdorfs. They were to pay to Carrie Bergman $70 per month for the duration of her life, and they were also to pay her funeral expense. Title to the farm was restored in Carrie Bergman. On April 5, 1954, she conveyed title in the farm and the personalty to Paul and Adella Bernsdorf. On the same date the Bernsdorfs executed a note secured by a mortgage on the farm to Carrie Bergman, which note and mortgage provided for the payment of $70 per month to her during her life. The note provided that "the death of Carrie Bergman shall extinguish all obligation of the undersigned under this note, except for any payments hereunder which may be in default at the time of the death of said Carrie Bergman, which payment shall be collectible in accordance with law." The Bernsdorfs also entered into a written agreement with an undertaker for the payment of Carrie Bergman's funeral expense. At the time of the execution of the deed, note, and mortgage, Carrie Bergman was seventy-eight years of age. She had no other property, assets, or means of support.
Thereafter, each month until December, 1954, the Bernsdorfs paid to Carrie Bergman the sum of $70 (the amount provided in the note and mortgage). On December 28, 1954, in a letter to Carrie Bergman's attorney, Paul Bernsdorf advised that since he would like to give his children an education and would like to pay debts contracted years before, he now finds it impossible to make the monthly payments to Mrs. Bergman. No subsequent payments were made to Mrs. Bergman.
This action was commenced on January 6, 1955. The complaint alleges that the Bernsdorfs had agreed to pay to Carrie Bergman $70 per month for her support during her lifetime, and also to pay her funeral expense, in consideration of the conveyance of the farm to them, and that they had breached their agreement. Carrie Bergman in her pleading applied for rescission of the transfer of the premises and of the support agreement; a cancellation of the warranty deed, note, mortgage, and funeral agreement; and the award of the possession of the premises to her free of any claim, right, title, or interest of the Bernsdorfs.
In their answer the Bernsdorfs denied that the property was conveyed to them in consideration of a support agreement, and they alleged that the various conveyances of April 5, 1954, were all made as part of one transaction and in settlement and compromise of litigation then pending and threatened by the parties, and also because of the title interest of the minor children. They allege that their agreement to pay $70 per month to Carrie Bergman did not constitute a support agreement, but that the purpose or use of the payments provided for by their promissory note rested entirely in the discretion of Mrs. Bergman. They demanded dismissal of the complaint, or in the event dismissal was denied, an establishment of their equities in the property.
After issue had been joined, Carrie Bergman moved for summary judgment. In an affidavit presented in support of her motion, she alleged facts as set forth above. She specifically referred to statements made by or on behalf of Bernsdorf, and also as to his conduct, wherein and whereby he acknowledged support obligation. It appears, however, that such incidents took place before April 5, 1954.
Bernsdorf presented an affidavit in opposition to the motion. He indicated therein that any support obligation was terminated when he and his wife accepted title to the property and executed their note and mortgage for payment to Mrs. Bergman of $70 per month.
An affidavit of Carrie Bergman's son was filed in which it was asserted that no expenses for improvements to the farm were incurred by the Bernsdorfs since April 5, 1954. Besides other exhibits, there was of record before the court upon the hearing of the motion for summary judgment, a copy of the written agreement between the Bernsdorfs and a funeral home for payment of Mrs. Bergman's funeral expense. Neither the deed, note, nor mortgage contained any reference to support of Carrie Bergman.
The trial court granted the motion of the plaintiff and adjudged that the answer be stricken; that the deed, note, mortgage, and funeral contract be canceled and declared void; that the support agreement of April 5, 1954, be canceled and declared void; that Carrie Bergman is declared the owner of the premises, and that the Bernsdorfs vacate forthwith. It is from this judgment that the appeal was taken.
A clearly defined issue of fact is raised by both the pleadings and the affidavits. That issue involves the intention of the parties at the time when the deed, note, and mortgage were executed on April 5, 1954, with respect to support of Carrie Bergman. While it appears that under the previous contracts between the parties, there was an obligation on the part of the Bernsdorfs to contribute 30 per cent of the income of the farm to the Bergmans, or their survivor, for their support, nevertheless, it is undisputed that Carrie Bergman, in the notice and proceedings of the unlawful-detainer action claimed to be the owner of the premises, notwithstanding that she had joined in the deed to Adella Bernsdorf and her children, and thereby, at least by inference had repudiated the existence of a support contract at the time. Such incident is asserted by Bernsdorf in his affidavit. True, in both the previous proceedings, and in the negotiations leading to a termination of the then pending matters in litigation between the parties, there were statements by Bernsdorf relating to the future support of Mrs. Bergman. There is, however, a serious question as to whether upon a trial of the issues involved here, the statements of Bernsdorf referred to in some of the exhibits of the plaintiff presented in support of her motion for summary judgment, will be admissible, for the reason that it may be determined that such statements were made during the course of settlement negotiations. Neither the deed, mortgage, nor note contain any reference to the support of Carrie Bergman. Paul Bernsdorf's affidavit sets forth facts indicating that there was no intent to support her.
Appellants maintain that as a matter of law an agreement of support cannot be declared, for the reason that the obligation involves only the payment of money. They submit that it is only in situations where the agreement calls for a consideration by way of something which cannot be given monetary value, such as the rendering of personal services of some nature or other, whether it be the furnishing of board, taking care of the home, or personal needs of the grantor, etc., that equity will grant relief by way of rescission of the conveyance and transaction. We cannot agree to such principle. In Delong v. Delong (1883), 56 Wis. 514, 14 N.W. 591, a support agreement was found to exist and was rescinded where the obligation consisted of the payment of money — $450 per year to the grantors during their lifetime and $100 per year to a daughter for fifteen years.
The manner in which the support agreement is to be kept need not be specified in the writings. Glocke v. Glocke (1902), 113 Wis. 303, 89 N.W. 118.
Appellants also maintain that since the breach can be measured in money and since the respondent has an adequate remedy at law, to wit, the foreclosure of the mortgage under ch. 278, Stats., she is not entitled to a rescission of the conveyance. The existence of a remedy at law does not deprive equity of jurisdiction unless such remedy is clear, adequate, and complete. 30 C. J. S., Equity, p. 347, sec. 25. The determination of such consideration is for the court. In Menge v. Radtke (1936), 222 Wis. 594, 269 N.W. 313, the grantor elected to apply for a foreclosure of the mortgage rather than for a cancellation of the deed, and such procedure was approved, notwithstanding that rescission might have been granted if applied for.
However, it is the rule in this state that summary judgment may not be granted in a situation where it appears from the affidavits that circumstances exist which tend to support an inference of essential ultimate fact contrary to that contended for by the movant, and it further appears that the conclusive effect claimed for the affidavits of the movant may be destroyed by cross-examination. Sec. 270.635(2), Stats.; Hanson v. Halvorson (1945), 247 Wis. 434, 19 N.W.2d 882; Laughnan v. Griffiths (1955), ante, p. 247, 73 N.W.2d 587.
Since, in the case at bar, an issue of fact is raised in both the pleadings and the affidavits as to whether the deed, note, and mortgage of April 5, 1954, were intended as a support agreement, such issue must be determined at a trial. If, at the trial, it shall be found that a support agreement existed, and that Carrie Bergman is entitled to a rescission of the deed, the court will be obliged to determine the equities of the Bernsdorfs, if any.
By the Court. — Judgment reversed, and cause remanded for a trial upon the issues.
The following memorandum was filed February 7, 1956:
With respect to plaintiff-respondent's motion for rehearing, we find ourselves obliged to adhere to the original determination that the existence of a support agreement under the circumstances as indicated by the record, and the equities of defendants-appellants, should it be determined that such agreement existed, are matters that must be decided at a trial.
Defendants-appellants in their brief upon the motion for rehearing point out that while in Delong v. Delong (1883), 56 Wis. 514, 14 N.W. 591 (cited by this court in its opinion herein), the author of that opinion alluded only to money payment, nevertheless, the records and briefs of the case indicate that the agreements contemplated personal service as well as money payment. We have decided to withdraw all statements and implications in the opinion that equity may grant relief by way of rescission where a support agreement, and conveyance made pursuant thereto, involves only the payment of money. We leave such consideration for future determination.
By the Court. — The motion for rehearing is denied with costs.