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after notice of rescission, but his dam- And in Texas in Tufts v. Lawrence ages, in such cases, are to be meas- (1890) 77 Tex. 526, 14 S. W. 165, it apured, as of the time of the breach of peared that the defendants had on May the contract by the vendee. Vanstory 9, 1885, given an order for a sodaClothing Co. v. Stadiem (1908) 149 N. water apparatus to be manufactured, C. 6, 62 S. E. 778; Heiser v. Mears and had, on June 2, telegraphed the (1897) 120 N. C. 443, 27 S. E. 117. The plaintiff not to send it. The latter, theory upon which this conclusion is however, completed it and shipped it reached is not that the buyer, or the on June 4. As to the question of damparty in default, has a right to pay ages the court said: “The telegram damages as an alternative perform- sent by appellees on the 2d day of ance of his contractual obligation, but June and received by appellant before rather upon the theory that it is the the goods were ready for delivery was duty of the seller to do nothing, after a repudiation of the contract. After notice of rescission, to increase his it was received, appellant had no right damages." Novelty Advertising Co. v. to proceed with the performance or to Farmers Mut. Tobacco Warehouse Co. recover the contract price as if the (1923) 186 N. C. 197, 119 S. E. 196. property in the goods had passed to

In another case in that state it ap- the appellees. His remedy was to sue peared that the defendants' retail mer- for damages for breach of contract, chants in Asheville, North Carolina, and he was entitled to recover the difon May 21, 1894, contracted with the ference between the contract price and plaintiff, a wholesale manufacturer of the value of the goods in the condition Baltimore, Maryland, for a lot of shoes they were in when he received the noto be soon thereafter manufactured tice at the place of their manufacand delivered. On May 26, 1894, the ture.” plaintiff received written notice from In the case of a contract for goods the defendants not to make the shoes, to be manufactured, it has been held and that the defendants could not take that where the goods have been made them. At that time the plaintiff "had and are ready for delivery at the time cut the leather for the uppers prepara- of the breach, the measure of damages tory to making the shoes, and partly is to be determined on the basis of the fitted them to the lasts.” The plaintiff difference between the market value refused to accept the countermand, at that time and the contract price, if finished the shoes, and tendered them the latter be greater

the former. to the defendants, who refused to re- Kingman & Co. v. Western Mfg. Co. ceive and pay for them. The plaintiff (1839) 34 C. C. A. 489, 92 Fed. 486; then sued for the entire contract price. Mangold Stave & Cooperage Co. v. The court charged the jury that the Lucas E. Moore Stave Co. (1912) 116 measure of the plaintiff's damages was C. C. A. 542, 197 Fed. 20. the difference between the contract In a case in the circuit court of apprice and the market value of the peals which involved a contract for goods at the time they were to be de- the manufacture of bags, it appeared livered. The court on appeal said: that the plaintiff bought cotton specifi"When the contract is executory and cally to make up the cloth in question, the buyer countermands his order, that that this cotton was allocated to these is notice to the other party that he contracts, and that it was manufacelects to rescind his contract and sub- tured into cloth long before the final mit to the legal measure of damages, repudiation. The court held that the which must result from every breach measure of damages would be the difof contract. We think his Honor gave ference between the contract price of the jury proper instruction, except the bags and the market value of the that he should have said, 'at the time cloth, or of cloth of plaintiff's grade of the breach,' instead of 'at the time and quality, at the date of repudiation, the goods were to be delivered.' That plus the cost of the conversion into error does not hurt the defendant, as bags. Petoskey Portland Cement Co. he does not appeal.” Heiser v. Mears v. E. V. Benjamin Co. (1924) 296 Fed. (N. C.) supra.


H. C. J.

(94 W. Va. 686, 120 8. E. 73.)


POLLY MARCUM et al., Appts.

West Virginia Supreme Court of Appeals

November 6, 1923.

(94 W. Va. 686, 120 S. E. 73.)

Deeds, $ 118 — rescission - conveyance for support death of grantee.

1. Where a father conveys his land to his two sons in consideration of their agreement to support and maintain him during his life, and after the grantees have supported him for some time, pursuant to the conveyance, they die, each leaving a widow and infant children, equity will not, at the suit of the grantor, rescind the conveyance, but will administer the property for the benefit of all parties, rendering to the grantor his reasonable maintenance out of the income from or corpus of the estate, and preserving for the widows and children all that remains at the time of his death, in such proportions as they are legally entitled to.

[See note on this question beginning on page 136.] Deeds, § 118 conveyance for sup- and for that purpose may apply either port — control by court.

the income or the proceeds of sale, 2. In such case the court may direct or such part thereof as may be necesthat the land, or so much thereof as sary, to the maintenance of the grantmay be required for the grantor's sup- or, in a manner suitable to his station port during his life, be leased or sold,

in life.

[See 4 R. C. L. 511.] Headnotes by MEREDITH, J.

APPEAL by defendants from a decree of the Circuit Court for Mingo County in favor of plaintiff in a suit brought to set aside a deed. Reversed.

The facts are stated in the opinion of the court. Messrs. Stafford & Rhodes, for ap- The death of the grantees was unpellants:

avoidable, so far as they were conPlaintiff was entitled to no relief, cerned, and was an act of Providence as the deed was made to hinder, delay, which prevented further carrying out and defraud creditors.

of the contract as appears from the Burt v. Timmons, 29 W. Va. 441, 6 deed of conveyance, and excused them Am. St. Rep. 664, 2 S. E. 780; Knight from doing anything further under 5. Capito, 23 W. Va. 644; Bump, Fraud. the contract. Conv. 3d ed. pp. 57–59; Livey v. Win- Sanders v. Coleman, 97 Va. 690, 47 ton, 30 W. Va. 555, 4 S. E. 451; Kana- L.R.A. 581, 34 S. E. 622; 4 Enc. U. S. wha Valley Bank v. Wilson, 25 W. Va. Sup. Ct. Rep. 587; Board of Education 243; Hunter v. Hunter, 10 W. Va. 321; v. Townsend, 63 Ohio St. 524, 52 L.R.A. Horn v. Star Foundry Co. 23 W. Va. 868, 59 N. E, 223; Wilson v. Riffle, 87 522; McClintock v. Loisseau, 31 W. Va. W. Va. 160, 104 S. E. 285. 865, 2 L.R.A. 816, 8 S. E. 612; Stout v. Mr. James Damron for appellee. Phillippi Mfg. & M. Co. 41 W. Va. 340, 56 Am. St. Rep. 843, 23 S. E. 571; Cor

Meredith, J., delivered the opinion rothers v. Harris, 23 W. Va. 177; Edgell of the court: V. Smith, 50 W. Va. 350, 40 S. E. 402; This is an appeal from a decree of Hanna v. Charleston Nat. Bank, 55 W. the circuit court of Mingo county, Va. 185, 46 S. E. 920; J. G. Cherry Co.

setting aside a deed made by Henry 5. Helm, 2 A.L.R. 1439, note; 19 R. C. L. 243, 4; 8 R. C. L. 1026, 8 82; Keister

Marcum to his two sons, James and

John B. Marcum, dated June 27, 1. Cubine, 101 Va. 768, 45 S. E. 285; Pownal v. Taylor, 10 Leigh, 172, 34

1919. The deed recites a consideraAm. Dec. 725; Bates v. Swiger, 40 W.

tion of $3,000 paid, "and the further Va. 420, 21 S. E. 874.

consideration that the parties of the second part is to cear and montain Some of the children were infants the the said Henry Marcum during and lived with their parents. In his natial life,” and purports to con- June, 1919, Verlina Marcum, wife of vey with general warranty two plaintiff, left home, taking the intracts aggregating 445 acres. It is fant children, and went to Portsshown by the evidence of the scrive- mouth, Ohio, where she has lived ner that the cash consideration was ever since. According to the testinot paid, nor was it intended to be mony of the plaintiff, she stripped paid. Suit was brought to set aside the store of about everything in it, the deed because of the failure of the and took part, if not quite all, of the grantees to furnish the required household furniture. There being support. The court granted the no one to care for plaintiff, he proprayer of the bill.

posed to his two sons, James and Defendants urge two grounds of John B., or they proposed to him error: First, that the deed was (but who made the proposal is immade to hinder, delay, and defraud material), that the father should the grantor's creditors; hence, he is convey to the two sons his land, in entitled to no relief. Second, that consideration of a lifetime support assuming the grantor is entitled to from them. Thereupon the deed support from the property, he can- was made. It will be observed that not have the deed set aside, because it covers the whole of the 445 acres, there was no default of the original ascertained to be 415 acres, while grantees, they having partly per- the father had but a half interest formed their contract and died, leav- therein. Immediately thereafter ing the property to their widows and James, with his wife and children, infant children, who would have moved into the home which had been completed performance, had the occupied by the father, where they plaintiff permitted them to do so; continued to reside until the son that, had the widows refused per- James was killed in June, 1920. formance, it was the duty of the Shortly thereafter the son John B., court to treat the land as a trust es- with his wife and children, undertate, and, through a receiver or oth- took the care of the father, and coner officer, rent or sell it, using a suf- tinued to furnish him a home until ficient amount of the proceeds to the following December, a period of support the grantor during his life,

ing his life, about six months, when the son John and distributing the remainder, up- B. was killed. on his death, among the grantees' There is no doubt but that the faheirs and the two widows, according ther and the two sons got along well to their respective interests.

together, and plaintiff was satisfied It appears that Henry Marcum with his treatment, but after the was about seventy years of age. He death of the second son troubles was handicapped by the loss of an arose. Plaintiff and the wife of arm and an eye, was ignorant, and John B. Marcum could not get along not of a very pleasant disposition together. Each one states it was the He and his wife, Verlina, owned to- other's fault, but the wife of James gether an undivided two tracts of Marcum and the wife of John B. land, aggregating about 415 acres, Marcum both say that they would upon which they had lived for many have been willing to care for the fayears. He owned a store located on ther, had he treated them right. the land, which was conducted by his However, they both testify that, owwife. They had had twelve children, ing to his conduct, they could not rethree of whom were deceased. One main in the same home and care for or more had married and moved him. away from the neighborhood. James It appears that James Marcum and John B., the grantees, were had built a store after he moved into married and lived near by in sep- the father's home, and conducted a arate homes, probably on this land. store there up to the time of his (94 W. Va. 686, 120 S. E. 73.) death; that he had a 40-acre tract of this case we think that justice can land of his own, and was employed be done to all parties. It appears by the Norfolk & Western Railway that after his wife left him a divorce Company at $90 per month. John suit was instituted, either by him or B. Marcum was also employed. The her, and that the plaintiff was father, during the life of the two awarded a decree of divorce; also, sons, worked upon the land and each that a partition suit was instituted, helped the other. So there can be and the land was divided between little controversy as to whether the the plaintiff and his wife, the plainsons, during life, carried out their tiff receiving approximately 200 portion of the contract, and there is acres, so that there is now in controno doubt that since the death of John versy that portion of the land which B. Marcum the father has been com- was laid off to the plaintiff in that pelled to support himself on the partition suit. farm. It appears that, after the As already stated, the grantees in widow of John B. Marcum left, the the deed partially performed their plaintiff's daughter and one or two part of the contract for a period of of his other children came back to at least eighteen months. Each left the old home, where they have since surviving a widow and infant chilbeen living.

dren. Upon their death the title to The defendants contend that the the land passed by descent to their deed was made to defraud the grant- heirs, subject to plaintiff's right to or's creditors. It is shown that at maintenance and to the right of the time the deed was made plaintiff dower of the widows. The conveyhad scarcely any other property, cer- ance is a grant of the land; it containly not more than $200 worth. tains no condition subsequent. UpAt that time he owed debts aggre- on failure of the grantees named gating from $500 to $750—debts therein to support the grantor, there that were contracted through the is no provision made in the deed for store, all of which, however, have, a forfeiture of the estate. Of since the deed was executed, been course, if the grantees had refused paid by the grantor. But plaintiff to support the grantor, he would was fearful that his wife, before she have had a right to rescind. Lowleft him, had contracted debts to a man v. Crawford, 99 Va. 688, 40 S. considerable amount over and above E. 17; White v. Bailey, 65 W. Va. the sums proved. He claimed that 573, 23 L.R.A. (N.S.) 232, 64 S. E. she had bought some furniture, had 1019. At the death of the grantees, it charged to him, and had it shipped however, all that remains is the to a party at Williamson in the name grantor's right to charge the land of "Brown," where she obtained it for a lifetime support. Under the and took it with her to Portsmouth. terms of the deed, the widows and He was also afraid that she would grantees' children are not required contract debts for which he would to support the grantor. The chilbe liable. There is evidence in the dren and the widows are probably record to the effect that he made va- not in a position to support the rious statements to disinterested grantor unless they are allowed to persons that his object in making live upon the land; they have not the deed was to avoid paying these sufficient property, other than the debts. But, as the circuit court has land itself, out of which to furnish found for the plaintiff upon the is- him support. The original grantees sue as to his fraudulent intent, we never were in default. The circumfind it unnecessary to state whether stances here are somewhat unusual. such fraudulent intent has been The deed makes no provision for the proved, in view of our disposition of event of the grantees' death before the case. He is an old man, having the complete performance of the only a few years to live, at most, and contract. under the peculiar circumstances of Plaintiff is in a court of equity.




He is entitled to the full measure of for sufficient to provide the grantsupport provided for in the deed, but or's support and pay the taxes thereunder the circumstances he is not on, the land ought to be leased for

entitled to a rescis- that purpose; that the court should

sion of the contract also ascertain what would be a rea. ance for support and to an entire res- sonable sum required for his support -death of

toration of the prop- annually, and, if the land cannot be

erty. We think leased for a sum that a court of equity should find sufficient to support Tor support some

means of taking charge him, then the court control by of this property and administer- should sell it, or ing the estate as a trust for the such part thereof as it may deem benefit of the grantor during his reasonable for the purpose, and dilife, the residue of the property rect that a sufficient sum of the into be distributed or divided among come, or of the corpus of the estate, the children of the two sons and if necessary, be used to provide his their widows, as their interests may support and maintenance until his appear at the time of the grantor's death—the proceeds to be preserved death. The grantor has a first and protected under the decree of charge upon the land; his right to the court, so that, if there be any. support is above all other claims. thing left at the time of his death, The record shows that, if he lives it may be divided among those enupon the land, he can be supported titled thereto. If the plaintiff deat a cost of from $150 to $250 per

sires such relief as herein indicated, year. As time goes on it may cost

it will be necessary for him to more, but he is entitled to a rea

amend his bill. This case is, in sonable support, suitable to his cir

many respects, similar to the case of cumstances and condition in life.

Keister v. Cubine, 101 Va. 768, 45

S. E. 285. See also Abbott v. SanWhether the land will rent for suffi

ders, 80 Vt. 179, 66 Atl. 1032, 13 cient or not to furnish this support L.R.A.(N.S.) 725, 130 Am. St. Rep. does not appear. It is shown that 974, 12 Ann. Cas. 898, and notes the land, valuable chiefly for its coal thereto. and timber and prospective oil and For the foregoing reasons, the degas rights, is worth at least $20,000.

cree will be reversed, and the cause We are of opinion that it is the duty remanded for further proceedings of the court to ascertain the rental to be had therein in accordance with value of the land, and, if it will rent the principles herein announced.


Rights and remedies in respect of the property upon the death, in the lifetime

of grantor, of the grantee in a deed in consideration of future support.


I. In general, 136.
II. Right to have deed canceled or set

a. In general, 137.
b. Grounds:
1. That covenant to support is

personal, 137.
2. That deed was on condition

subsequent, 139.

II. b-continued.

3. Failure consideration,

140, 4. Other grounds, 141. c. Conditions attached to relief, 141.

d. Denial of relief, 142. III. Other forms of relief, 143.

1. In general. Generally, covenants in effect to care for and support the grantor in consideration of a conveyance of real

estate are construed to be based upon a consideration so peculiar that the total or partial failure of this consideration requires relief of a special

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