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V. Maddox

Kansas.-Simmons v. Shafer (1916) 98 Kan. 725, 160 Pac. 199. Kentucky. Maddox (1909) 135 Ky. 403, 122 S. W. 201; Beard v. Beard (1923) 200 Ky. 4, 254 S. W. 430.

Michigan.-Coe v. Dickerson (1901) 129 Mich. 61, 87 N. W. 1028; Moran v. Beson (1923) — Mich. 195 N. W. 688; Lewandowski v. Nadolny (1921) 214 Mich. 350, 183 N. W. 85.

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E. 717; Cree v. Sherfy (1894) 138 Ind. 354, 37 N. E. 787; Cross v. Carson (1846) 8 Blackf. (Ind.) 138; Huffman v. Rickets (1916) 60 Ind. App. 526, 111 N. E. 322; Maddox v. Maddox (1909) 135 Ky. 403, 122 S. W. 201; Beard v. Beard (1923) 200 Ky. 4, 254 S. W. 430; Coe v. Dickerson (1901) 129 Mich. 67, 87 N. W. 1028; Lewandowski v. Nadolny (1921) 214 Mich. 350, 183 N. W. 85; Moran v. Beson (1923) Mich. 195 N. W. 688;

Payette v. Ferrier (1903) 31 Wash. 43, 71 Pac. 546; Bishop v. Aldrich (1879) 48 Wis. 619, 4 N. W. 775; Morgan v. Loomis (1891) 78 Wis. 594, 48 N. W. 109.

b. Grounds.

1. That covenant to support is personal. Relief to the grantor by canceling or setting aside a deed, where the grantee has deceased after performing the covenant to support for a period of time, has been given upon various grounds. Thus, in setting aside a deed the consideration for which is covenants, in effect, to care for, support, and maintain the grantor, and the grantee has deceased before full performance, it has been pointed out that the covenants of the grantee are personal, not subject to assignment or to performance by a third person; hence, relief by cancelation of the deed is essential to the protection of the grantor.

Thus, in Bishop v. Aldrich (1879) 48 Wis. 619, 4 N. W. 775, relief was given by setting aside a transfer of real estate in consideration of the agreement of the grantee to support the grantor, the grantee having died a short time after the transaction, which was evidenced by deed of the grantor to the grantee, and a life lease by the grantee to the grantor, containing a covenant to support the grantor and a stipulation that, upon default, the grantor might retake possession of the premises and hold them for his support and maintenance. The court said: "The covenants of [the grantee] to support and maintain the plaintiffs were not assignable and died with her. Her death, a few months after the conveyance, put an

end to the obligation to maintain the plaintiffs; and, if the conveyance stands, her heirs would take the land conveyed to her, subject to the life lease, without any obligation on their part to perform her covenants. This would be most inequitable. The use of the property may or may not be sufficient to maintain the plaintiffs; but, whether it is or not, the principle is the same. The consideration for the conveyance has failed, and, under the circumstances peculiar to cases of this class, the conveyance ought to fail with it."

In Morgan v. Loomis (1891) 78 Wis. 594, 48 N. W. 109, relief was given the grantor by setting aside a deed of land conditioned upon support, although it contained an express provision that, in case the grantee should die before the grantor, the latter should not be bound to live with the grantee's heirs, but should have the same control over the premises as if he were living. This agreement was contained in a lease by the grantee to the grantor, very similar in form to that involved in Bishop v. Aldrich (Wis.) supra.

In Payette v. Ferrier (1903) 31 Wash. 43, 71 Pac. 546, it is held that the covenants of the grantees to support and maintain the grantor are personal, and die with them, and hence that the grantor is entitled to a cancelation of the deed and the restoration to him of the property conveyed.

So, in Beard v. Beard (1923) 200 Ky. 4, 254 S. W. 430, where a deed was set aside and canceled upon the death of the grantee, who was a son of the grantor, although the widow of the grantee offered to perform, it was held that performance by the widow would not meet the requirement of the contract, which contained an express provision that the consideration of the conveyance was that the grantee should support the grantor, and also furnish her a home with him. The court said: "The contract under consideration involves personal service. In consideration of the conveyance of the land by the mother to the son, he undertook to furnish her with suitable food, clothing, medical attention,

medicine, and all other necessaries during her natural life. He was her favorite son, and had lived with and taken care of his mother for many years. She relied upon him, and by the terms of the deed he agreed to support her and furnish her 'a home with him.' She did not want to live with someone else, but she did desire to live with her son. In order to induce him to stay with her, and to care for her, as well as to give him a start in life, she gave him all her earthly belongings, retaining a lien on the land to secure the performance of the obligations. The contract was not assignable, nor could the appellant, Nan K. Beard, have performed the conditions of the deed, because the grantee therein would not have furnished a home to his mother with him."

But in Keister v. Cubine (1903) 101 Va. 768, 45 S. E. 285, in granting relief to the grantor in a deed conditioned upon the agreement of the grantee that the grantor should have a proper, comfortable home with the grantee for the remainder of her natural life, where the grantee deceased after having performed the contract for some years, the court said: "The power of a court of equity, in a proper case, to rescind the contract and restore the property to the grantor, would certainly include the power to afford less drastic relief, if the facts pointed to the latter as more consonant with justice. In the cases of Wampler v. Wampler (1878) 30 Gratt. (Va.) 454, and Lowman v. Crawford (1901) 99 Va. 688, 40 S. E. 17, the grantees were in default, and had abandoned the obligations assumed. Under the circumstances of those cases, rescission and a restoration of the status quo were considered the proper relief. In the case at bar the circumstances are unusual. Neither the grantee nor those claiming under her are in default. The grantee died, having faithfully performed her part of the contract during her lifetime. Her title devolved upon her infant children, who are not in default, because they are not capable of performing the contract during the remainder of their grandmother's life.

The fault is that of the father, who is not a party to the deed, and assumed no obligations under it. His default should not be allowed to prejudice his infant children in their rights. The deed makes no provision for the event of the grantee's death before the complete performance of her contract. It is doubtless true that an important consideration moving the grantor to make the deed was the hope and expectation of that affection and regard that no one can render so acceptably as an only daughter. That solace has been removed by the hand of Providence, and no human agency can supply an adequate substitute. All that remains to the grantor is the material support provided for by the deed. The daughter's estate is insolvent, except to the extent of her interest in this property. Under these circumstances the grantor comes into a court of equity for relief. She is entitled to the full measure of the support provided for by the deed, but not to a rescission of the contract and an entire restoration of the property to her use. In tenderness to her infant grandchildren, upon whom the grantee's title has devolved, and who are without fault, a court of equity will, through the hands of a receiver, take charge of the property as a trust asset, and administer it with due regard to the ultimate rights of the infants as well as the paramount rights of the grantor to a support. The right of the grantor to a support is above all other claims, and it may be, as suggested, that when the value of that support has been properly ascertained, a sale of the property will be necessary, and a consumption of the corpus required to satisfy the demand. On the other hand, something may be left for the infant children of the grantee, which it will be the duty and pleasure of the court to preserve and protect for their benefit."

2. That deed was on condition subsequent.

Where a deed was given of certain land, and the grantee executed. in writing, a contract to pay the grantor a sum of money and board him, do

his washing, mending, and wait on him in sickness, and otherwise care for him during the remainder of his life, it was held in Cree v. Sherfy (1894) 138 Ind. 354, 37 N. E. 787, that the deed was made upon a condition subsequent, which was broken by the death of the grantee after performance for some years, the wife of the grantee and the children refusing to perform, and it was decreed that the title of the grantor in the land should be quieted, and that a note given to represent the money which the grantee agreed to pay should be canceled. The court said: "As appears from the complaint and the finding of the court, the chief consideration for the conveyance was the home comfort of the grantor, and his support in declining years. While the decedent lived, the contract was faithfully kept; after his death, the widow and children and aged father remained together for two weeks, when the widow and children, over his advice and objection, abandoned the home and removed to her mother's residence, 4 miles away, and never returned to look after or care for the appellee, leaving him as the sole occupant of the premises. The appellants having refused to remain and execute the agreement, they are in no better situation than the grantee would occupy, if he were alive and had deserted the father. It would not be pretended that, if the son had forsaken the father under like circumstances, he would have any standing in a court of equity. It is the province of a court of conscience, when asked for relief, a right of action having arisen to one of the parties, to place the survivors as nearly in the position, relatively, they would have occupied but for the death, as it is possible to do. Act of God inures as excuse and relief to both parties to a contract. If it legally releases the one from executing a work he has undertaken, it equally protects the other from paying for more than has been done."

So, in Cross v. Carson (1846) 8 Blackf. (Ind.) 138, 44 Am. Dec. 742, a deed running to a designated person

and his heirs, conditioned upon his and their supporting a certain person during the latter's life, was held to be on condition subsequent, and to have been broken by the failure of the heirs to maintain such person after the death of their father, the grantee. The court said that the minority of the heirs did not excuse them from the performance of this express condition. The condition being broken, the estate was forfeited, and became liable to be destroyed by the entry of the heirs of the grantor.

And in Huffman v. Rickets (1916) 60 Ind. App. 526, 111 N. E. 322, a deed was canceled which contained a covenant by the grantees to support the grantor, and a provision that, upon breach of such covenant, the deed should become null and void, it appearing that, after complying with the covenant for some period of time, one of the grantees died and the other became insane. Relief was given on the ground that the deed was made upon a condition subsequent

A deed in consideration of the covenant of the grantee to support the grantor is construed in Wisconsin to be a conveyance on condition, a breach of which, although due to the death of the grantee after partial performance, entitled the grantor to have the conveyance set aside upon equitable principles. Morgan v. Loomis (1891) 78 Wis. 594, 48 N. W. 109.

3. Failure of consideration. Relief has also been given a grantor upon the ground of a failure of consideration to support a deed given in consideration of the covenants of the grantee to care for and support the grantor, where the grantee died before full performance.

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stances like here disclosed may constitute a failure of consideration, but contend that right of rescission for such cause may be waived, and was waived in this case. We do not hold that the death of the grantee in such a deed necessarily constitutes a failure of consideration, authorizing rescission. Each case must be judged in view of its particular facts and circumstances. If death of the grantee brings to the grantor right to rescind, it does not follow that the right must be exercised and rescission be sought. The grantor may waive the right to rescind and accept substituted performance, and thereby secure the benefits arranged for. Efforts, however, to adjust performance to a change occasioned by the death of the grantee, do not constitute a waiver of the right to rescind, unless they result in bringing the beneficiary to the point of being content therewith, or give him all he ought to have. Mr. Phillips was not at all content with the various shifts provided by Mr. Beson for his care after the death of Mrs. Beson. He did not like to go out for his meals, wanted his old-time home comforts, objected to a hired woman coming in the home to care for him, and finally sent for his daughter Laura to live with and care for him. Mr. Beson claims he attempted to do all he could, but his efforts did not satisfy Mr. Phillips, and trouble arose, and he left the Phillips home."

In Lewandowski v. Nadolny (1921) 214 Mich. 350, 183 N. W. 85, a deed was canceled and set aside, the consideration of which was the support of the grantor, where the grantee died after having performed for some considerable period of time, and the administrator of her estate was threatening to evict the grantor for failure to pay rent. There was no specific written agreement in this case for the support of the grantor, but the court said that this evidently formed the substantial basis for the conveyance. It is pointed out that as long as she lived the grantee performed, but that her death put an end to further performance on her part, and she left

as her sole heir a babe in arms, who, of course, could not assume performance of the grantee's duties to plaintiff. Under such circumstances the court said that relief would be granted. And see Coe v. Dickerson (1901) 129 Mich. 61, 87 N. W. 1028, supra, where similar relief was given upon apparently the same ground.

So, in Maddox v. Maddox (1909) 135 Ky. 403, 122 S. W. 201, where the consideration of a deed of land was the covenant of the grantees, two brothers, to support the grantors, being husband and wife, it was held that the consideration failed by reason of the death of one of the grantees and the inability of the other to perform the covenant. The deed was canceled on condition of the repayment to the surviving grantee of the amount found due for support, and the matter was referred to a commissioner, for the purpose of ascertaining what proportion of the whole consideration had been paid, either in money or in service, from which was to be deducted the value of the use of the land, if any, during the time the service was being rendered.

The death of the grantee was also held in Bishop v. Aldrich (1879) 48 Wis. 619, 4 N. W. 775, and Payette v. Ferrier (1899) 20 Wash. 479, 55 Pac. 629 (see later appeal in (1903) 31 Wash. 43, 71 Pac. 546), to entitle the grantor in a deed, the consideration of which was the support of the grantor, to have it set aside on the ground that the consideration had failed.

4. Other grounds.

In Lanfair v. Thompson (1900) 112 Ga. 487, 37 S. E. 717, a deed, the consideration of which was an agreement to support the grantor, was set aside, following the death of the grantee, but the relief was given upon the ground that the deed was secured through fraud.

c. Conditions attached to relief. Where relief has been given the grantor by setting aside or canceling a deed the consideration of which was the covenant of the grantee to care for and support the grantor, because

full performance has been prevented by the death of the grantee, the grantor has been required to do equity.

Thus, in Huffman v. Rickets (1916) 60 Ind. App. 526, 111 N. E. 322, where a deed was canceled because the death of one of the grantees, and the insanity of the other, prevented performance by them of a covenant to support the grantor, the court said that in order that no injustice might be done, and all the parties might be restored to their original status as nearly as possible, an accounting should be had, in which should be included, as one of the items, the value of services performed and support furnished.

In Beard v. Beard (1923) 200 Ky. 4, 254 S. W. 430, a deed was canceled and set aside upon the death of the grantee, where the consideration thereof was the grantee's agreement to support the grantor and furnish her with a home with him, he being a son of the grantor. There was also a provision that a lien was specifically retained on the property to secure the performance by the second party of all the obligations he therein assumed. Upon decree for cancelation, testimony was taken with reference to a comparison of the value of the use of the property received by the grantee and the value of the support furnished, and the one was held to offset the other, and hence the deed was set aside without terms.

In Coe v. Dickerson (1901) 129 Mich. 61, 87 N. W. 1028, the court, in setting aside a deed of land the consideration of which was the support of the complainants, being the father and mother of the grantee therein, gave to the widow of the grantee, as one of his heirs, there being no children as a result of the marriage, a lien upon the property for a sum of money which represented the difference between the amount paid out by the grantee in behalf of the grantor, the support furnished, and the value of the use of the property conveyed. It is pointed out that the complainant did not convey a conditional title, and, at the most, had a lien upon the son's reversionary

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