!

interest for nonperformance of his contract. On the other hand, the son's representative had no claim against the complainant, for he had received his pay in advance, and that was real estate, which, subject to debts and the possible lien of the grantor, descended to the grantee's heirs, of whom his wife was one. The court added: "It might also be said that she also had a dower interest, if nothing more, in the land, subject, of course, to the lien, if there was a lien, which we need not decide. In view of these circumstances, we think it not inequitable to say that she had an interest amounting to $500 in these premises, over and above any claim that the complainant could hope to enforce; and, as 'he who seeks equity must do equity,' there was no impropriety in requiring it as a condition upon which he should be granted relief, although not claimed in the answer." The lien thus given the widow of the grantee was not payable until after the death of the complainant.

In Bishop v. Aldrich (1879) 48 Wis. 619, 4 N. W. 775, where relief was given the grantors by setting aside a conveyance to the grantee, conditioned upon support, the grantee having died a short time after commencing performance, the court suggested that, if the grantee expended more for the support of the plaintiffs than she received from them during the few months that she lived after the conveyance was made to her, her personal representative might be made a party to the action, and the amount ascertained and required to be paid as a condition of relief.

However, in Morgan V. Loomis (1891) 78 Wis. 594, 48 N. W. 109, the trial court, in setting aside and canceling a deed executed in consideration of the agreement of the grantee to support the grantor, the agreement being, in part, implied from the circumstances attending the transaction, ordered an accounting as to the rents and profits from the premises, or the value of the use thereof, and the value of the support furnished and improvements laid out upon the

premises, the amount found due in the latter regard being nearly equal to the value of the use of the premises. The plaintiff appealed, and in reversing the action of the trial court the court on appeal said: "The decision of the trial court, however, seems to have been based upon the theory that the property thus conveyed should be held, and the same or its equivalent should from time to time, as circumstances required, be expended for the support, maintenance, etc., of the grantor, with the right to permanently retain all not so expended; but that, in case such grantee at any time found it for his advantage, interest, or convenience not to further execute such trust, then he should be at liberty to refuse further performance, and reclaim all he had expended, less rents and profits actually received. This would

not only be unjust to confiding age, but contrary to the rule thus established by this court. We are inclined to think, however, that it is no violation of that rule to allow the defendants for the $150 expended in making permanent improvements on the land, less the $50 damage to the premises by reason of timber cut and removed therefrom."

d. Denial of relief.

Relief was denied the grantor in a deed the consideration of which was her support, where the grantee died after having performed for a period of time. Knight v. Jones (1912) 93 S. C. 376, 76 S. E. 978. The court said that the fact that the grantor did not foresee the death of the grantee might have been unfortunate, but it could not invalidate the deed.

In Calkins v. Calkins (1906) 220 Ill. 111, 77 N. E. 102, it is held that, in the absence of any fraud on the part of the grantee, a grantor in a deed, part of the consideration of which was his support and maintenance, is not entitled to have the deed set aside on the death of the grantee, although the latter failed to perform that portion of the consideration which was to be paid in money, or to pay a portion of the encum

brance existing against the property, and support was not furnished the grantor subsequently to the grantee's death. The court said that if the grantor has been damnified by the fact that the conditions to the deed which were to be performed by the grantee have not been complied with since his death, and by the fact that they cannot be complied with in the future, he may file claims against the estate of the deceased in the county court, and have damages allowed. To the same effect is Seymour v. Belding (1876) 83 Ill. 222.

In Flanagan v. Flanagan (1918) 133 Md. 332, 105 Atl. 299, the court sustained a demurrer to a bill by the grantor in a deed the consideration of which was the support of the grantor, the bill containing allegations that the real consideration for the deed was an oral promise and agreement to support the grantor; that the grantee died without leaving sufficient means of support at the age of eightytenance for the grantor; and that to permit the deed to stand, without the promised assistance and support, would work a constructive fraud upon the grantor, as she was without other means of support at the age of eightyone years. In denying relief in these circumstances, the court said: "There are cases where it is held that where a grantor conveys property, and the consideration is an agreement by the grantee to support, maintain, and care for the grantor during his or her natural life, and the grantee neglects or refuses to comply with the contract, a court of equity will rescind the contract, strike down the deed, and decree a reconveyance of the property. The decisions will be found upon examination to be based upon the theory that the neglect, failure, or refusal of the grantee to comply with the contract raises the presumption that the contract was fraudulent in its inception, and he will not be permitted to enjoy the possession of property so obtained. The present case, however, does not fall within the principle announced by those cases, because it is alleged in the bill of complaint that the grantee did sup

port and maintain the grantor for many years at his home, and this continued during his entire lifetime and up to the time of his death." The cases relied upon and cited in favor of the grantor were decided upon a different state of facts, and were held not to be controlling in the instant case, where the grantor failed to establish a right to equitable relief under the bill.

III. Other forms of relief.

In other jurisdictions, while denying relief by setting aside a deed, where, after performing for a period of time covenants relative to the care and support of the grantor, the grantee has died, the grantor has been given relief of a limited or restricted character.

Thus, in Keister v. Cubine (1903) 101 Va. 768, 45 S. E. 285, where the grantee died after faithfully performing, for over seven years, her covenant to support the grantor, and was survived by two infant children, it was held that equity would, through a receiver, administer the estate with due regard to the ultimate rights of the infants, as well as to the paramount right of the grantor to support.

In the reported case (MARCUM v. MARCUM, ante, 133) the court refused to rescind a deed, the consideration of which was the support of the grantor, where the grantees died during performance, but after they had performed for some time, holding that equity required that the property be administered for the benefit of all the parties, rendering to the grantor his support in accordance with the covenant of the grantees.

In McSwean v. McSwean (1920) 204 Ala. 663, 86 So. 646, in sustaining a deed the consideration of which was the support of the grantor, the court remarked that, if the grantee should be prevented by his death from discharging his contract obligations to the grantor, the latter would not be without care, support, or maintenance since a court of chancery would subject the property to the due and necessary discharge of the condition of the trust.

In Simmons v. Shafer (1916) 98 Kan. 725, 160 Pac. 199, where a grantee in a deed, the consideration of which was a covenant to support the grantor, died, and the grantor was unable to live in harmony with the grantee's widow, who left the premises, it was held that the court properly refused a rescission of the contract, but that relief should be given by making the future care and support of the grantor a charge upon the land. It is pointed out that there was testimony that the widow of the grantee stated that she would pay for the grantor's care and maintenance, and that she also told him to go to a store and get anything that he wanted, and she would pay for it; that, upon moving from the premises, she left considerable fruit and some groceries in the house, but made no other contribution during a period of about three months between the time she left the farm and the commencement of the action for cancelation of the deed. Under these circumstances, it was held that there was a partial noncompliance with the terms of the contract which formed the consideration of the deed, but the court said that a partial failure of consideration did not necessarily work a forfeiture or require the cancelation of the deed. "In case of fraud in the making of such a contract, or of a purpose on the part of the grantee to avoid the obligation to provide future support, or where it is the only effective remedy, a court of equity is justified in setting aside a conveyance. Martin v. Martin (1890) 44 Kan. 295, 24 Pac. 418. The plaintiff appealed to a court of equity for relief, and, the parties interested being before the court, it is justified in settling the rights of the parties upon equitable principles. There having been full performance of the contract for years, the death of the grantee, a change as to the improvements and mortgage debt against the land, and an offer by the defendant to provide for the care and maintenance of the plaintiff after it became evident they could not live together in friendly relations, the court naturally concluded that equity

required a remedy other than absolute forfeiture and the cancelation of the deed. Equity is satisfied where the rights of the parties to the contract are substantially attained or provided in the decree. The care and maintenance which J. W. Shafer undertook to give to the plaintiff, and which were contemplated under the contract, were largely of a personal nature. These the plaintiff had, so long as Shafer lived. Upon his death the obligations, of course, passed to his widow. Whoever may have been at fault, it is reasonably clear that she and the plaintiff could not live under the same roof. It was incumbent upon her to provide proper care and maintenance for the plaintiff in some practical way, and these she offered to furnish. The decree provided that his care and maintenance should be made a charge upon the land, and that all the rents and profits, except taxes and interest charges, should be devoted to this purpose so long as he lived. This substantially accomplished the purposes of the original contract between the plaintiff and Shafer, and does not appear to be inequitable."

In Stephens v. Daly (1920) 49 App. D. C. 389, 266 Fed. 1009, in considering the character of relief to be given the grantor in a deed the consideration of which was her support, the grantee having died after partially performing, the court said: "Should we award a rescission here, equity would demand that the grantor account for the amount received by her up to the time of the grantee's death. and that the grantee account for the net income of the property conveyed to her by the grantor. A further accounting would be necessary from the date of the grantee's death. As the estate is small, and the delay and expense of such an accounting would be considerable, we incline to the view that, in the circumstances, justice will be done by charging the interest conveyed to the grantee with an equitable lien in favor of the grantor for the carrying out of the contract forming the real consideration for the conveyance."

witness, and that the systolic bloodpressure rises are brought about by nervous impulses sent to the sympathetic branch of the autonomic nervous system. Scientific experiments, it is claimed, have demonstrated that fear, rage, and pain always produce a rise of systolic blood pressure, and that conscious deception or falsehood, concealment of facts, or guilt of crime, accompanied by fear of detection when the person is under examination, raises the systolic blood pressure in a curve, which corresponds exactly to the struggle going on in the subject's mind, between fear and attempted control of that fear, as the examination touches the vital points in respect of which he is attempting to deceive the examiner.

In other words, the theory seems to be that truth is spontaneous, and comes without without conscious conscious effort, while the utterance of a falsehood requires a conscious effort, which is reflected in the blood pressure. The rise thus produced is easily detected and distinguished from the rise produced by mere fear of the examination itself. In the former instance, the pressure rises higher than in the latter, and is more pronounced as the examination proceeds, while in the latter case, if the subject is telling the truth, the pressure registers highest at the beginning of the examination, and gradually diminishes as the examination proceeds.

Prior to the trial defendant was subjected to this deception test, and counsel offered the scientist who conducted the test as an expert to testify to the results obtained. The offer was objected to by counsel for the government, and the court sustained the objection. Counsel for defendant then offered to have the proffered witness conduct a test in the presence of the jury. This also was denied.

Counsel for defendant, in their able presentation of the novel question involved, correctly state in their brief that no cases directly in point

have been have been found. The broad ground, however, upon which they plant their case, is succinctly stated in their brief as follows: "The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates, are admissible in evidence."

Numerous cases are cited in support of this rule. Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recog- Evidence-ex

nized scientific prin- pert-deduction ciple or discovery, from principle.

the thing from

scientific

which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood-pressure deception test has not yet gained such stand

ing and scientific blood-pressure

recognition among deception test.

physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

The judgment is affirmed.