September 9, 1958 —
October 7, 1958.
APPEAL from a judgment of the county court of Green county: MARSHALL L. PETERSON, Judge. Affirmed.
For the appellant there were briefs and oral argument by John P. Derning of Brodhead.
For the respondent there was a brief by F. Earl Lamboley of Monroe, and Thronson, Roethe Agnew of Janesville, and oral argument by John T. Roethe.
Action by plaintiff for an accounting and a conveyance of real estate. Plaintiff bases her alleged rights thereto upon a written agreement dated December 15, 1942. Action was commenced January 26, 1956. Judgment, dated September 23, 1957, dismissed the complaint.
The agreement upon which this action is based is as follows:
"This Agreement, made and entered into this 15th day of Dec., A.D., 1942, by and between R. J. Nyman and Nora Nyman, his wife, hereafter referred to as parties of the first part, and LaVerne Nyman and Lesetta Nyman, his wife, hereafter referred to as parties of the second part;
"Witnesseth: That whereas, the said parties of the first part, at the special instance and request of the said parties of the second part, have purchased from Julius Goecks the farm situated in the township of Jefferson, Green county, Wisconsin, to wit:
"The west one half of the southwest quarter and the northeast quarter of the southwest quarter of section 12, town 1 north, range 8 east, all being in the township of Jefferson, Green county, Wisconsin.
For the sum of Thirteen Thousand Dollars ($13,000), and the farm personal property thereon for the sum of Five Thousand Dollars ($5,000), and
"Whereas, said purchase was made by first parties for and on behalf of second parties, and at their request, and
"Whereas, first parties are paying the entire sum of Eighteen Thousand Dollars ($18,000) at the present time, first parties paying part thereof in cash, and the balance to be secured by a first mortgage on the above-described premises, and a first mortgage on the farm now owned by first parties and occupied by second parties, and
"Whereas, to secure themselves in said transaction, first parties have caused title in all of the property purchased from Julius Goecks to be transferred to them, and
"Whereas, it is the intention of the parties that title to said premises remain with first parties until such time as second parties have paid to first parties all moneys advanced by first parties at the present time, plus all moneys that may hereafter be advanced by first parties for the payment of the above-described premises and personal property;
"Now, therefore, it is hereby mutually agreed by and between the parties, in consideration of one dollar and other good and valuable considerations to each in hand paid, the receipt whereof is hereby acknowledged, that the said parties of the first part will cause to be deeded, transferred, conveyed, and delivered to second parties, title to the Julius Goecks farm as above described, and title to the personal property thereon, at such time and such date as second parties cause to be paid in full to first parties all sums of every kind and nature advanced by first parties in said transaction, including all payments made by first parties on the purchase price of said premises and all payments made by first parties to retire the mortgage which will incumber the farm which they now own;
"It is further hereby agreed by second parties that they hereby obligate themselves to pay to The First National Bank of Monroe, Monroe, Wisconsin, the institution from which first parties will borrow the money to finance this transaction, all moneys borrowed by first parties in connection with this transaction.
"Second parties further hereby agree to hold said first parties harmless in all respects in any matters growing out of the purchase of the said Julius Goecks farm and personal property, and agree to indemnify them for any loss sustained by the first parties.
"First parties further hereby agree to collect all net income from the said Julius Goecks farm above described and the personal property thereon, and use the same, first, for the payment of taxes on said farm and personal property, second, for the payment of the interest on the loan of Eighteen Thousand Dollars ($18,000) to The First National Bank of Monroe, Monroe, Wisconsin, and any balance to apply on the principal amount of said loan to The First National Bank of Monroe, Monroe, Wisconsin. It is understood and agreed that all payments on principal made from income of the Goecks farm above described shall be considered as income of second parties, and any payments on principal made out of such income shall reduce the amount in which they are obligated to first parties herein.
"It is further hereby agreed by second parties that they will pay to first parties interest at the rate of four per cent on all moneys advanced by first parties in this transaction, including any payments made at the time of the delivery of the deed and all subsequent payments advanced by first parties.
"It is further hereby agreed that this agreement shall be binding upon the parties hereto, their heirs, successors, or assigns.
"In witness whereof, the parties hereto have caused their hands and seals to be affixed the day and year first above written."R. J. Nyman (SEAL) "Nora Nyman (SEAL) "Parties of the First Part "LaVerne Nyman (SEAL) "Lesetta Nyman (SEAL) "Parties of the Second Part"
The agreement was witnessed and notarized and eligible to be recorded.
R. J. and Nora Nyman are the parents of LaVerne Nyman.
Additional facts are stated in the opinion.
The Goecks farm described in the agreement had been purchased by the senior Nymans on October 21, 1942, who took title as joint tenants. Nora Nyman claims the property as surviving joint tenant. At the time of the purchase the senior Nymans borrowed the purchase price from a Monroe bank giving a purchase-money mortgage to the bank upon this farm and another one. There is no evidence that the junior Nymans participated in any way in these transactions, though the agreement acknowledges that the purchase was made at their request and on their behalf.
Broadly interpreted, the agreement is a promise by the elder Nymans to convey the farm to their son and his wife if and when the profits from the operation of the farm shall reimburse the purchasers for their expenditures. LaVerne and Lesetta Nyman make no promise to pay LaVerne's parents for the farm and defendant's brief submits that there is no consideration for the promises to convey which Nora and her husband made in the agreement. Nevertheless we find there that the instrument is under seal, which imports consideration, consideration of one dollar is stated, and LaVerne and Lesetta promised to hold the parents harmless for losses or liabilities they might incur and to pay interest on moneys advanced by the parents. We cannot dispose of the agreement as being without consideration.
However, we do think that there was a failure on the part of LaVerne and Lesetta to perform any of the obligations which were theirs or reasonably to be expected of them by virtue of the agreement, all to an extent which convinces us that they had abandoned it.
When the agreement was executed December 15, 1942, the elder Nymans were already the owners of the farm as joint tenants. They continued to operate it, and to receive all the income. They made no demands upon their son and his wife in any way related to this agreement. On their part the latter made no inquiries concerning what progress, if any, the farm was making in paying for itself. If principal payments were made out of farm profits the agreement provided that those should be considered income of LaVerne and his wife, but although they were obligated to report their income for taxation they never inquired if there was income from this source.
One paragraph of the agreement declares:
"It is further hereby agreed by second parties that they hereby obligate themselves to pay to The First National Bank of Monroe, Monroe, Wisconsin, the institution from which first parties will borrow the money to finance this transaction, all moneys borrowed by first parties in connection with this transaction."
As shown by the second paragraph of the agreement the parties well knew that the elder Nymans had purchased the farm some six weeks before. The paragraph just quoted states that the elders will borrow and the second parties obligate themselves to repay the loan to the bank. No such further, future, loan was obtained by first parties nor have the second parties entered into any repayment obligation with the bank nor have they reimbursed their parents otherwise.
The only mortgage of which there is evidence is the one given to the bank by R. J. and Nora Nyman on October 21, 1942, the day when the Goecks' deed was delivered. This was satisfied on April 18, 1945, and satisfaction recorded. Nora Nyman testified that this mortgage was paid with other funds and not derived from the operation of the farm.
R. J. Nyman died February 7, 1955, and Nora was appointed administratrix of his estate with the will annexed. As such, on March 1, 1957, she filed an inventory and appraisal in which she scheduled this farm as owned by her husband and herself in joint tenancy. No other interest in anyone was mentioned. The combined interests of the joint tenants were appraised at $20,000. LaVerne Nyman had notice of the probate proceedings but neither he nor his wife asserted any interest in the farm and final judgment was entered in the matter of the estate by the Hon. MARSHALL L. PETERSON, county judge, August 8, 1955. In this, too, the farm was described as joint-tenancy property with no mention of other interests and it was assigned to Nora, surviving joint tenant, as of the date of her husband's death.
A witness, LaVerne's brother, testified that he once asked for some help in work on the Goecks farm and LaVerne refused and said he was not interested in that farm.
LaVerne Nyman died suddenly July 4, 1955. Lesetta Nyman was appointed executrix of his will on August 2, 1955. It is worthy of note that the agreement of December 15, 1942, was not recorded until August 24, 1955. As this action is between original parties to the agreement and no rights of third parties are involved the failure to record is unimportant, except that ordinary caution for protection against claims by third parties would impel LaVerne and his wife to record promptly a document which they considered important to them. The failure to record for so long a time argues that whatever their original intention was, it had been abandoned.
This history of more than thirteen years of indifference on the part of the LaVerne Nymans to the affairs of the farm convinces us that they truly had abandoned whatever interest in the property which the written agreement may originally have given them. The two male parties to the transaction are dead. Their lips are sealed. Records and recollections over so many years bid fair to be incomplete and untrustworthy. Too much uncertainty is inherent in this situation. Equity had better keep her hands off and will not decree either specific performance or an accounting.
By the Court. — Judgment affirmed.
MARTIN, C.J., took no part.