OPINION OF THE COURT.
ROBERTS, C. J.
(after stating the facts as above) —
[1] In discussing the questions presented by appellant, upon which she relies for a reversal of the judgment of the trial court, we must assume that the consideration for the conveyances made by Reed to her was the promise on her part “to live with him and care for him and nurse' him during the remainder of his natural life at his home is Tueumcari, N. M.,” as found by the court. This finding was based upon conflicting evidence, and, there being substantial evidence to support the same, it will not be disturbed in this court. The court also found that, at the time the promise was made, Mary E. Reed had no intention of keeping and performing the same, but made such promise fraudulently and with intent to deceive and defraud said Joseph Z. Reed. There was no positive evidence that appellant had no intention of keeping her promise, at the time it was made. It would, indeed, be an exceptional case, where positive proof of fraud in such a ease as this could be adduced, for a rational person, who set about to defraud another, would not proclaim his evil intent in the open. This finding by the court was predicated upon the facts and circumstances proven in the case, among which the following may be enumerated:
[2] The fact that she visited him soon after he was stricken with paralysis, and paid him marked attention; bestowed upon him the tenderest care, and talked in such a manner that he naturally assumed that she intended to live with him during the remainder of his life and care for him. After securing the execution o£ the deeds and their delivery and recordation, she, within a short time, left him and returned to her home in California, where she remained until after he had instituted suit to set aside the deeds. In her answer to the suit filed by Reed she denied that she ever promised to live with, care for, and nurse him, and that such promise was the consideration for the deeds, and set up an entirely new and different consideration. She set up the same defense in the present suit, which the court found was untrue. There were other minor facts, developed upon the trial of the case, tending to show a design on her part to secure deeds to the real estate, from which, together with the facts above recited, the court could and did find an actual purpose to deceive.
“Fraud therefore is properly made out by marshaling the circumstances surrounding the transaction and deducing therefrom the fraudulent purpose where it manifestly appears, as by presenting the more positive and direct testimony of actual purpose to deceive; and, indeed, circumstantial proof in most cases can alone bring the fraud to light, for fraud is peculiarly a wrong of secrecy .and circumvention, and is to be traced, not in the open proclamation of the wrongdoer’s purpose, but by the indications of covered tracks and studious concealments.” Smith on the Law of Fraud, § 266.
[3, 4] Having concluded that there were facts and circumstances proven on the trial of the cause which justified the court in finding as he did in this regard, we come now to the consideration of appellant’s main contention, which is that representations to be fraudulent, must relate to a present or past state of facts, and relief for deceit cannot be obtained for nonperformance of a promise looking to the future.
The majority of the courts, in the ordinary cases of fraudulent representations, hold in accord with appellant’s statement of the law; but some jurisdictions hold that, if the promise to perform some act in the future is made with the design and intention of the promisor to disregard it, and with no intention to perform it, and was made to deceive and entrap the other party, then such promise, in case the refusal to perform takes place, will amount to actual fraud. Elliott on Contracts, § 83. The question will be found discussed and the authorities reviewed in extensive case notes to the case of Cerny v. Paxton & Gallagher Co., 10 L. R. A. (N. S.) 640, and Miller v. Sutliff, 24 L. R. A. (N. S.) 735.
But the courts of this country, with but few exceptions, treat contracts by a grantee to furnish a home for and support to a grantor, when constituting the consideration for a conveyance by the grantor of the whole or major portion of his property, as being in a. class by themselves, which are not governed by the ordinary rules which apply in the construction of contracts. While the agreement, which constituted the consideration for the conveyance in the present case, was not for support, being .for ■companionship, care, and nursing, yet it is so nearly akin to those contracts for support, so often before the courts, that it must be placed in the same class, and is accordingly governed by the principles applicable in such cases. The value of the services, care, and attention contracted for cannot be measured in money. In this case, while others might have administered to the necessities of the grantor, in caring for and nursing him, they could not give to him that which he understood he was contracting for, viz., the care and nursing by one upon whom, if the witnesses are to be believed, he bestowed his love and affection and beliefed that he was receiving in return, and would continue to receive, daily evidences of similar devotion and affection, the loss of which, and her ministrations to his wants, could not be supplied by others, or its loss measured in money, as stated. Such a consideration as the above is not regarded as an ordinary obligation, but is of a peculiar character, imposing upon the grantee burdens which must be performed, if he would retain the benefits of the contract. Courts of equity, because of the inadequacy of any legal remedy, do not hesitate to set aside such contracts, upon proof of failure to-perform by the grantee. Such courts are not so much concerned as to the proper theory upon which such contracts may be avoided, as they are that'they must be set aside in order to prevent grave injustice and the imposition upon aged people, by unscrupulous persons, who pretend love, devotion, and friendship, where no one of such elements exists. Cancellation is the only adequate remedy applicable to such a case, where there is a refusal or intentional failure to perform. This being true, it is only natural that we should find the courts at variance, upon the proper equitable ground upon which such cancellation should be predicated.
In Kentucky (Reeder v. Reeder, 89 Ky. 529, 12 S. W. 1063), such contracts are canceled on the ground that the only certain measure of damages for the breach is to place the parties in statu quo; the damages for the breach being too speculative and conjectural to be passed upon by a jury. Upon somewhat similar grounds such contracts are avoided in Rhode Island. Grant v. Bell, 26 R. I. 288, 58 Atl. 951. Several of the state courts cancel such contracts on the ground of failure of consideration. Haataja v. Saarenpaa, 118 Mann. 255, 136 N. W. 871; Lane v. Lane, 106 Ky. 530, 50 S. W. 857. Many of the courts have canceled .such contracts, without stating any ground for so doing. Tomsik v. Tomsik, 78 Neb. 103, 110 N. W. 674; Humbles v. Harris, 151 Ky. 685, 152 S. W. 797; Peck v. Hoyt, 39 Conn. 9; Bruer v. Bruer, 109 Minn. 260, 123 N. W. 813, 28 L. R. A. (N. S.) 608. In Indiana (Cree v. Sherfy, 138 Ind. 354, 37 N. E. 787) and Wisconsin (Glocke v. Glocke, 113 Wis. 308, 89 N. W. 118, 57 L. R. A.
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OPINION OF THE COURT.
ROBERTS, C. J.
(after stating the facts as above) —
[1] In discussing the questions presented by appellant, upon which she relies for a reversal of the judgment of the trial court, we must assume that the consideration for the conveyances made by Reed to her was the promise on her part “to live with him and care for him and nurse' him during the remainder of his natural life at his home is Tueumcari, N. M.,” as found by the court. This finding was based upon conflicting evidence, and, there being substantial evidence to support the same, it will not be disturbed in this court. The court also found that, at the time the promise was made, Mary E. Reed had no intention of keeping and performing the same, but made such promise fraudulently and with intent to deceive and defraud said Joseph Z. Reed. There was no positive evidence that appellant had no intention of keeping her promise, at the time it was made. It would, indeed, be an exceptional case, where positive proof of fraud in such a ease as this could be adduced, for a rational person, who set about to defraud another, would not proclaim his evil intent in the open. This finding by the court was predicated upon the facts and circumstances proven in the case, among which the following may be enumerated:
[2] The fact that she visited him soon after he was stricken with paralysis, and paid him marked attention; bestowed upon him the tenderest care, and talked in such a manner that he naturally assumed that she intended to live with him during the remainder of his life and care for him. After securing the execution o£ the deeds and their delivery and recordation, she, within a short time, left him and returned to her home in California, where she remained until after he had instituted suit to set aside the deeds. In her answer to the suit filed by Reed she denied that she ever promised to live with, care for, and nurse him, and that such promise was the consideration for the deeds, and set up an entirely new and different consideration. She set up the same defense in the present suit, which the court found was untrue. There were other minor facts, developed upon the trial of the case, tending to show a design on her part to secure deeds to the real estate, from which, together with the facts above recited, the court could and did find an actual purpose to deceive.
“Fraud therefore is properly made out by marshaling the circumstances surrounding the transaction and deducing therefrom the fraudulent purpose where it manifestly appears, as by presenting the more positive and direct testimony of actual purpose to deceive; and, indeed, circumstantial proof in most cases can alone bring the fraud to light, for fraud is peculiarly a wrong of secrecy .and circumvention, and is to be traced, not in the open proclamation of the wrongdoer’s purpose, but by the indications of covered tracks and studious concealments.” Smith on the Law of Fraud, § 266.
[3, 4] Having concluded that there were facts and circumstances proven on the trial of the cause which justified the court in finding as he did in this regard, we come now to the consideration of appellant’s main contention, which is that representations to be fraudulent, must relate to a present or past state of facts, and relief for deceit cannot be obtained for nonperformance of a promise looking to the future.
The majority of the courts, in the ordinary cases of fraudulent representations, hold in accord with appellant’s statement of the law; but some jurisdictions hold that, if the promise to perform some act in the future is made with the design and intention of the promisor to disregard it, and with no intention to perform it, and was made to deceive and entrap the other party, then such promise, in case the refusal to perform takes place, will amount to actual fraud. Elliott on Contracts, § 83. The question will be found discussed and the authorities reviewed in extensive case notes to the case of Cerny v. Paxton & Gallagher Co., 10 L. R. A. (N. S.) 640, and Miller v. Sutliff, 24 L. R. A. (N. S.) 735.
But the courts of this country, with but few exceptions, treat contracts by a grantee to furnish a home for and support to a grantor, when constituting the consideration for a conveyance by the grantor of the whole or major portion of his property, as being in a. class by themselves, which are not governed by the ordinary rules which apply in the construction of contracts. While the agreement, which constituted the consideration for the conveyance in the present case, was not for support, being .for ■companionship, care, and nursing, yet it is so nearly akin to those contracts for support, so often before the courts, that it must be placed in the same class, and is accordingly governed by the principles applicable in such cases. The value of the services, care, and attention contracted for cannot be measured in money. In this case, while others might have administered to the necessities of the grantor, in caring for and nursing him, they could not give to him that which he understood he was contracting for, viz., the care and nursing by one upon whom, if the witnesses are to be believed, he bestowed his love and affection and beliefed that he was receiving in return, and would continue to receive, daily evidences of similar devotion and affection, the loss of which, and her ministrations to his wants, could not be supplied by others, or its loss measured in money, as stated. Such a consideration as the above is not regarded as an ordinary obligation, but is of a peculiar character, imposing upon the grantee burdens which must be performed, if he would retain the benefits of the contract. Courts of equity, because of the inadequacy of any legal remedy, do not hesitate to set aside such contracts, upon proof of failure to-perform by the grantee. Such courts are not so much concerned as to the proper theory upon which such contracts may be avoided, as they are that'they must be set aside in order to prevent grave injustice and the imposition upon aged people, by unscrupulous persons, who pretend love, devotion, and friendship, where no one of such elements exists. Cancellation is the only adequate remedy applicable to such a case, where there is a refusal or intentional failure to perform. This being true, it is only natural that we should find the courts at variance, upon the proper equitable ground upon which such cancellation should be predicated.
In Kentucky (Reeder v. Reeder, 89 Ky. 529, 12 S. W. 1063), such contracts are canceled on the ground that the only certain measure of damages for the breach is to place the parties in statu quo; the damages for the breach being too speculative and conjectural to be passed upon by a jury. Upon somewhat similar grounds such contracts are avoided in Rhode Island. Grant v. Bell, 26 R. I. 288, 58 Atl. 951. Several of the state courts cancel such contracts on the ground of failure of consideration. Haataja v. Saarenpaa, 118 Mann. 255, 136 N. W. 871; Lane v. Lane, 106 Ky. 530, 50 S. W. 857. Many of the courts have canceled .such contracts, without stating any ground for so doing. Tomsik v. Tomsik, 78 Neb. 103, 110 N. W. 674; Humbles v. Harris, 151 Ky. 685, 152 S. W. 797; Peck v. Hoyt, 39 Conn. 9; Bruer v. Bruer, 109 Minn. 260, 123 N. W. 813, 28 L. R. A. (N. S.) 608. In Indiana (Cree v. Sherfy, 138 Ind. 354, 37 N. E. 787) and Wisconsin (Glocke v. Glocke, 113 Wis. 308, 89 N. W. 118, 57 L. R. A. 458), it is said that such conveyances are upon condition subsequent and will be defeated by a failure of the grantee to perform. In Illinois (Frazier v. Miller, 16 Ill. 48; Oard v. Oard, 59 Ill. 46; Cooper v. Gum, 152 Ill. 471, 39 N. E. 267), Oklahoma (Spangler v. Yarborough, 23 Okla. 806, 101 Pac. 1107, 138 Am. St. Rep. 856), and some other states, such deeds are canceled and set aside on the theory of fraud in the inception of the contract. In the case of McClelland v. McClelland, 176 Ill. 83, 51 N. E. 559, the court held that the conduct of the grantee in breaching his agreement to support the grantor gave rise to the presumption of the abandonment of his contract and of a fraudulent intent in entering into it.
[5] In the case now under consideration, the complaint is based upon the theory of fraud in the inception of the contract, following the Illinois rule. Appellant, as stated, contends that this theory is incorrect. While, as applied to the ordinary contract, this court might be inclined to agree with this contention, we cannot do so in the present case. As stated, contracts like the one now under consideration stand alone, and are not subject to the ordinary rules applied by courts in other cases. The necessity of avoiding such contracts, in cases where there is an intentional and inexcusable failure to perform by the grantee, in order to do justice, is so paramount, and cancellation being the only adequate and complete remedy in such a c.ase, the court will give the remedy upon any reasonable theory. In other words the court in such a case, upon intentional and inexcusable failure to perform such a contract, will decree cancellation without much regard to or consideration of the theory upon which such cancellation is sought. This being true, this court will uphold cancellation in' such cases where the complaint proceeds upon any reasonable theory. The theory of fraud, in the inception of the contract, in such a case will support a decree of cancellation, where there is an inexcusable and intentional failure to perform, and the facts in the ease show that the grantee never intended to perform the contract which the court found she entered into. She says that no such contract was ever made by her, and, this being true, we may reasonably assume that she never ^intended to perform or keep it.
The various theories upon which the courts have decreed cancellation, of such contracts will be found discussed in an extended note to the case of Dixon v. Milling, 43 L. R. A. (N. S.) 916.
[6] In view of our conclusion that the complaint stated a good cause of action, in so far as its theory was concerned, the question of the survival of the cause of action is eliminated by our statute (section 3087, C. L. 1897), which provides that:
“In addition to the causes of action which survive at common law, causes of action for mesne profts, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same.”
But, waiving the statute, all the reported cases dealing with the question hold that the grantor’s right to rescind for breach of condition as to support descends to his heirs or representatives. See White v. Bailey, 65 W. Va. 573, 64 S. E. 1019, and case note to the same case in 23 L. R. A. (N. S.) 232.
Several other questions, of minor importance, were discussed by counsel for appellant- in their brief. All these questions have been examined by the court, but none of them warrant a reversal of the case.
Finding no error in the record warranting a reversal, the cause will be affirmed, and it is so ordered.
Hanna and Parker, J.J., concur.