Opinion
October 7, 1952 —
November 5, 1952.
APPEAL from an order of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Reversed.
The cause was submitted for the appellants on the brief of Eberlein Eberlein of Wausau, and Lehner Lehner and Adolph P. Lehner all of Oconto Falls, and for the respondent on the brief of Krueger Fulmer of Wausau.
Action by plaintiff Alice Voight against defendants Harland Walters and Betty Voight Walters (1) to set aside the deed to certain real estate conveyed by plaintiff to defendants under an agreement thereafter breached by defendants, and (2) for declaratory relief declaring it to be the duty of defendants to make payments to Marathon County Building Loan Association pursuant to a certain mortgage on said real estate more particularly described hereinafter. Defendants offered to plaintiff judgment as demanded on the first cause of action. Harland Walters demurred to the second cause of action, and from an order overruling the demurrer said defendant appeals.
At the time the agreement was entered into the defendants were husband and wife; at the time this action was commenced a divorce action was pending between them. Plaintiff is the mother of defendant Betty Walters. On February 7, 1947, plaintiff was the owner of the real estate here involved, which was her home, and on that date conveyed the property to the defendants. In consideration of the deed defendants entered into an agreement, among other things, to make certain payments to plaintiff and to provide for her care and maintenance. Said agreement provided that the obligations undertaken by defendants "are conditions subsequent upon which said conveyance is based, and upon failure of the grantees to perform all or any of said obligations, the grantor may at her option (a) declare such conveyance void for breach of conditions subsequent," or (b) declare certain forfeitures as damages. The agreement was secured by a mortgage to plaintiff in the sum of $6,000.
Thereafter, on November 18, 1949, defendants borrowed $2,700 from the Marathon County Building Loan Association, securing said loan by a note and mortgage to the association which has since been reduced to $2,407.79. In plaintiff's amended second cause of action she alleges that "in order to aid the defendants in procuring said loan and at their request [she] signed such note with the defendants as an accommodation maker thereof" and "as an accommodation maker only, executed such mortgage along with defendants in order to subject her interest in said premises to the lien thereof."
Plaintiff's prayer on the amended second cause of action is —
". . . for declaratory relief, declaring that the indebtedness to the Marathon County Building Loan Association secured by promissory note and mortgage as set forth in the complaint, is the primary obligation of the defendants, that the plaintiff is an accommodation maker thereon and is and shall be entitled to reimbursement for any amounts paid by her thereon and further declaring and defining the rights of the parties with respect to such indebtedness, note, and mortgage."
This is not a proper case for declaratory judgment. Any opinion given in the present action would be advisory only, and probably of no avail. There is no allegation in the complaint that a decision is necessary in order to guide the plaintiff or that she will be guided by any such decision.
Sec. 269.56, Stats., so far as material, reads:
"(2) Any person interested tinder a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that he holds a license or permit under such statutes or ordinances.
"(3) A contract may be construed either before or after there has been a breach thereof."
Referring to sec. 269.56, Stats., in Skowron v. Skowron (1951), 259 Wis. 17, 19, 47 N.W.2d 326, this court said:
"Read literally, the subsections (2) and (3) thereof seem to require courts to give advisory opinions in any question concerning a contract, but before the law was enacted in Wisconsin other states had enacted and construed it, as the Uniform Declaratory judgments Act, which constructions come with it into our own jurisprudence. Since its enactment in this state in 1927, this court also has often construed it and it is well settled that the act does not compel or permit the courts to give advisory opinions and they properly refuse judgments unless the pleadings present a justiciable controversy ripe for judicial determination. The statute deals with present rights only. Courts will not declare rights until they have become fixed under an existing state of facts nor will they determine future rights in anticipation of an event that may never happen. Heller v. Shapiro (1932), 208 Wis. 310, 242 N.W. 174; Sun Prairie v. Wisconsin Power Light Co. (1933), 213 Wis. 277, 251 N.W. 605."
In 9 U. L. A., Uniform Declaratory judgments Act, p. 257, sec. 1, note 53, it is stated:
"Courts are not constituted to render advisory opinions to private litigants and will not adjudicate issues not founded on a state of possibility or issues proved on facts which may never occur. Brunton v. International Trust Co. 1935, 47 P.2d 394, 97 Colo. 49. See also Schoenbrun v. Nettrour, 1948, 61 A.2d 868, 360 Pa. 474; Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont, 1943, 27 S.E.2d 486, 126 W. Va. 183. . . .
"This act does not require a court to give a purely advisory opinion which the parties might keep for future use to be used if and when the occasion might arise. Town of Tryon v. Duke Power Co. 1943, 22 S.E.2d 450, 222 N.C. 200.
"This act does not intend that courts should issue advisory opinions on hypothetical facts or on some possible future transaction. Tietjens v. City of St. Louis, 1949, 222 S.W.2d 70, 359 Mo. 439."
By the Court. — Order reversed and cause remanded with directions to enter an order sustaining the demurrer.