Munz v. Leuchtenberger

Doerfler, J.

There is ample evidence to' support the findings of fact of the trial court, and under the repeated rulings of this court such findings cannot now be disturbed. Under such findings the lease and option could not in any event become effective unless and until all of the children joined in the execution. Whether the parties to the lease had as their sole object in executing this agreement the making of a satisfactory provision for the benefit of the widow, or whether they had in view the'creation of a situation by which they contemplated a sale of the property at the price fixed in the option, is immaterial. Every one interested in the property had the undoubted right, before subjecting his interest to this agreement, to dictate and insist upon such terms and conditions as to him or her seemed meet and proper. No claim is made by the defendant or by any of the parties that the plaintiff either agreed to or that he actually did sign the agreement. Under the circumstances, therefore, the agreement itself never became perfected as a binding document, and the same was at no time ripe for delivery, and any delivery of the instrument was unauthorized, and the recording of the same did not bind the parties.

But it is strenuously contended by counsel for the defendant Oscar Mum that parol .evidence was improperly ad *60 mitted and that it modified the terms of a written document. The parol-evidence rule is so well established as to make the citation of authorities unnecessary. The object and purpose of the agreement was plainly expressed, and the same was in no respect ambiguous, and if the oral testimony introduced had for its purpose the modification of the express terms, of the written document, then it was clearly inadmissible. This testimony, however, was not aimed at the contents of the agreement, but was directed to a condition precedent, the happening of which became necessary before the instrument became a valid, effective, and binding document. In the body of the instrument all of the parties, including the plaintiff, are specifically named as parties of the first part. This in itself is strongly indicative that it was contemplated that all should join in its execution. It is not unlike an agreement entered into on a stock subscription, where the right is expressly reserved by the subscriber that the subscription shall not become effective until a certain specific amount°of the stock shall be subscribed. That was expressly held in Gilman v. Gross, 97 Wis. 224 , 72 N. W. 885 . See, also, Nutting v. Minnesota F. Ins. Co. 98 Wis. 26 , 73 N. W. 432 ; New Home S. M. Co. v. Simon, 104 Wis. 120 , 80 N. W. 71 ; Paulson v. Boyd, 137 Wis. 241 , 118 N. W. 841 ; State ex rel. Jones v. Chamber of Commerce, 121 Wis, 110, 98 N. W. 930 ; Curry v. Colburn, 99 Wis. 319, 74 N. W. 778 ; Wilson v. Powers, 131 Mass. 539 .

In Prutsman v. Baker, 30 Wis. 644 , Mr. Chief Justice Dixon said:

“A conditional delivery is and can only be made by placing the deed in the hands of a third person to be kept by him until the performance of some condition or conditions by the grantee or some one else, or until the. happening of some event whefi ... it is to be delivered over by the depositary to the grantee.” See, also, Chaudoir v. Witt, 170 Wis. 556 , 170 N. W. 932 , 174 N. W. 925 .

Such is the law firmly established by this court, but it *61 will be noted that in the instant case there never was a delivery to a third person in escrow or to the grantee.

But it is claimed by counsel for Oscar Munz that, inasmuch as Oscar went into possession of the premises and partly performed the conditions of the agreement, the objecting defendants are bound thereby and estopped from denying the validity of this agreement as to them. It must be remembered, however, that the widow had a life estate in this real estate, and therefore had full authority to lease the property during her lifetime upon such terms and conditions as she might deem proper and to whomsoever she might determine. If, therefore, the condition necessary to make this document effective never transpired, and the defendant Oscar entered into possession of the premises, the presumption would necessarily be that he entered under an agreement with his mother, the life tenant, which she was authorized to make. Neither is the fact that the objecting children permitted Oscar to remain upon the premises for the short period of time intervening between the death of the mother and the commencement of the action of great significance, because the mother’s death occurred at a time when Oscar had made his plans and had performed considerable work preparatory to the operation of the farm during the farming period which had then arrived.

It is therefore held that Oscar’s right as a tenant ceased at the time of the death óf his mother, and that his subsequent occupancy was merely permissive, and that the conduct of the parties herein interested, after the mother’s death, did not operate so as to- estop them from claiming their rights as devisees under the will of their deceased father. In so holding it becomes unnecessary to consider the validity of the option agreement itself, which was strenuously attacked by the plaintiff for indefiniteness and uncertainty.

By the Court. — The judgment of the trial court is affirmed.