Carleton Harris, Chief Justice.
This litigation involves the validity of a deed. Appellant, Noles Bryant, and her former husband, Dr. Robert L. Bryant, were named grantees in a deed conveying a certain forty-acre tract in Montgomery County, said deed being executed by the widow and surviving heirs1 of Dr. Bryant’s deceased father. Dr. Bryant and his wife took title as an estate by the entirety. The granting clause recites that the widow, Lou Bryant, and heirs,
“for and in consideration that the grantees are to provide a place for Mrs. Lou Bryant to live for the remainder of her life, and of the sum of THIRTY FIVE HUNDRED ($3500.00) DOLLARS, in hand paid receipt of which is hereby acknowledged, do hereby grant, bargain and sell to Robert L. Bryant and Noles Bryant his wife, GRANTEES, and unto their heirs and assigns forever, the following land lying in Montgomery County, Ark.: # * * ’ ’
It is undisputed that Dr. Bryant did provide a home for the mother, Mrs. Lou Bryant, which was located on a one-acre tract, and that she was still living there at the time of this litigation.2 Dr. Bryant, however, did not convey the property to his mother.
Dr. Bryant and appellant were divorced on May 1, 1953. The divorce decree sets out the property that each is to receive, but the particular forty acres here involved is not mentioned. The one acre, upon which the home was provided for Mrs. Lou Bryant, was awarded to Dr. Bryant. In August of the same year, Dr. Bryant married Gerry Matsuko in Honolulu, Hawaii. On August 24, 1954. Dr. Bryant and the second wife executed a deed conveying the forty acres to Jerry Witt, an attorney; also a deed was executed conveying the one acre. On the next day, Attorney Witt and his wife conveyed the properties back to Dr. Bryant and Gerry. The doctor and his wife lived together until his death on May 29, 1955. Within a week, the second Mrs. Bryant deeded both pieces of property to Mrs. Lou Bryant.
Appellant instituted suit, contending that she was the sole owner of the forty-acre tract by virtue of being the survivor of the estate by the entirety. -Appellees answered, contending that the $3,500, mentioned as part of the consideration in the deed, was never paid, and they prayed that their deed to Dr. Bryant and appellant be cancelled. On hearing, the court held,'
“that the deed executed by the defendants [appellees] to Robert L. Bryant and Noles Bryant on the 9th day of August, 1954 [52], and recorded in deed record books B-41, Pages 366-368 conveying the following lands herein described as follows: [here appears description of the forty acres] should be cancelled and set aside for the reason that the consideration in said deed wholly failed and that said deed should be removed as a cloud on the title of the defendants * * *”
Title to the property was quieted and confirmed in appellees. From the decree so entered, appellant brings this appeal.
We think, under our cases, that this decree must be reversed. In 1856, this court held that where a deed acknowledges payment of a consideration, the expressed consideration cannot be disproved for the purpose of defeating the conveyance, unless it be on the ground of fraud. The court went on to say that, for the purpose of ascertaining damages for which a plaintiff might be entitled, due to breach of covenant, the true consideration might be shown. Vaugine, et al, v. Taylor, et al, 18 Ark. 65. In 1955, this court said: “The recital of consideration in a deed may be varied by parol for every purpose except to show that the deed was without consideration, ’ ’ United Loan & Investment Co. v. Nunez, 225 Ark. 362, 282 S. W. 2d 595. In Rebsamen Motors v. Moore, 231 Ark. 249, 329 S. W. 2d 155, we reiterated:
“* * * It has been decided by this court in numerous cases that, though the recitals as to consideration in a deed cannot be contradicted by parol evidence for the purpose of defeating the conveyance,3 it is competent to prove by such evidence that the consideration has not been paid as recited or to establish the fact that other considerations not recited in the deed were agreed to be paid, when it does not contradict the terms of the writing. ’ ’
In 26 C.J.S., Deeds, § 21, Page 618, we find:
"While it has been recognized that failure of consideration for a conveyance is sufficient ground to warrant a rescission, at least where it is total, as a general rule a deed which is otherwise valid will not be invalidated by reason of a total or partial failure of consideration, and will nevertheless operate to convey title. So, in the absence of statutory authorization, or an express provision for a forfeiture or reconveyance, a deed will not be avoided or canceled because the consideration agreed on is not paid, or because the grantee fails to perform a promise forming the whole or part of the consideration therefor'; nor will failure to perform such a promise ordinarily give rise to a lien or charge against the land; nor is a party entitled to have his deed set aside and canceled simply because he has not received full consideration. ’ ’
An Arkansas case, Wheeler v. Wendleton, 209 Ark. 601, 191 S. W. 2d 952, is cited. There, this court stated:
"The fact that the consideration for this agreement was not paid would not revest the title in Hunt, but Avould only give him a right to enforce collection of the amount due him for his improvements and taxes.” * * *
We are firmly of the opinion that, even if failure of consideration were established, appellees would not be entitled to cancellation of the deed because of that fact alone. There is an exception to the general rule, vis, that Avhen a deed is executed in consideration of future support and maintenance — then, if the provision is not fulfilled by the grantee, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration. In Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331, this court commented:
“* * * Our cases hold that when a deed is executed in consideration of future support and maintenance — as here — then, if the grantee fails to fulfill the provisions of the deed, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration.”
Appellees here contend that the $3,500 was for support of the mother, and that accordingly, the chancellor properly cancelled the dead.
Let us look to the circumstances herein, commencing with an examination of the deed. First, that instrument does not recite that the $3,500.00 is to be paid to the mother; rather, the wording of the conveyance indicates that this sum of money had been received by all grantees.4 It will be noted that there is no provision in the deed requiring Dr. Bryant to provide support in the future; in fact, there is nothing to indicate that the $3,500 lump sum payment (shown as paid) was to be used for support. Of course, if the money had been paid to the mother, she would have been privileged to use it for support or whatever else she desired. The point is that there was no obligation on Dr.
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Carleton Harris, Chief Justice.
This litigation involves the validity of a deed. Appellant, Noles Bryant, and her former husband, Dr. Robert L. Bryant, were named grantees in a deed conveying a certain forty-acre tract in Montgomery County, said deed being executed by the widow and surviving heirs1 of Dr. Bryant’s deceased father. Dr. Bryant and his wife took title as an estate by the entirety. The granting clause recites that the widow, Lou Bryant, and heirs,
“for and in consideration that the grantees are to provide a place for Mrs. Lou Bryant to live for the remainder of her life, and of the sum of THIRTY FIVE HUNDRED ($3500.00) DOLLARS, in hand paid receipt of which is hereby acknowledged, do hereby grant, bargain and sell to Robert L. Bryant and Noles Bryant his wife, GRANTEES, and unto their heirs and assigns forever, the following land lying in Montgomery County, Ark.: # * * ’ ’
It is undisputed that Dr. Bryant did provide a home for the mother, Mrs. Lou Bryant, which was located on a one-acre tract, and that she was still living there at the time of this litigation.2 Dr. Bryant, however, did not convey the property to his mother.
Dr. Bryant and appellant were divorced on May 1, 1953. The divorce decree sets out the property that each is to receive, but the particular forty acres here involved is not mentioned. The one acre, upon which the home was provided for Mrs. Lou Bryant, was awarded to Dr. Bryant. In August of the same year, Dr. Bryant married Gerry Matsuko in Honolulu, Hawaii. On August 24, 1954. Dr. Bryant and the second wife executed a deed conveying the forty acres to Jerry Witt, an attorney; also a deed was executed conveying the one acre. On the next day, Attorney Witt and his wife conveyed the properties back to Dr. Bryant and Gerry. The doctor and his wife lived together until his death on May 29, 1955. Within a week, the second Mrs. Bryant deeded both pieces of property to Mrs. Lou Bryant.
Appellant instituted suit, contending that she was the sole owner of the forty-acre tract by virtue of being the survivor of the estate by the entirety. -Appellees answered, contending that the $3,500, mentioned as part of the consideration in the deed, was never paid, and they prayed that their deed to Dr. Bryant and appellant be cancelled. On hearing, the court held,'
“that the deed executed by the defendants [appellees] to Robert L. Bryant and Noles Bryant on the 9th day of August, 1954 [52], and recorded in deed record books B-41, Pages 366-368 conveying the following lands herein described as follows: [here appears description of the forty acres] should be cancelled and set aside for the reason that the consideration in said deed wholly failed and that said deed should be removed as a cloud on the title of the defendants * * *”
Title to the property was quieted and confirmed in appellees. From the decree so entered, appellant brings this appeal.
We think, under our cases, that this decree must be reversed. In 1856, this court held that where a deed acknowledges payment of a consideration, the expressed consideration cannot be disproved for the purpose of defeating the conveyance, unless it be on the ground of fraud. The court went on to say that, for the purpose of ascertaining damages for which a plaintiff might be entitled, due to breach of covenant, the true consideration might be shown. Vaugine, et al, v. Taylor, et al, 18 Ark. 65. In 1955, this court said: “The recital of consideration in a deed may be varied by parol for every purpose except to show that the deed was without consideration, ’ ’ United Loan & Investment Co. v. Nunez, 225 Ark. 362, 282 S. W. 2d 595. In Rebsamen Motors v. Moore, 231 Ark. 249, 329 S. W. 2d 155, we reiterated:
“* * * It has been decided by this court in numerous cases that, though the recitals as to consideration in a deed cannot be contradicted by parol evidence for the purpose of defeating the conveyance,3 it is competent to prove by such evidence that the consideration has not been paid as recited or to establish the fact that other considerations not recited in the deed were agreed to be paid, when it does not contradict the terms of the writing. ’ ’
In 26 C.J.S., Deeds, § 21, Page 618, we find:
"While it has been recognized that failure of consideration for a conveyance is sufficient ground to warrant a rescission, at least where it is total, as a general rule a deed which is otherwise valid will not be invalidated by reason of a total or partial failure of consideration, and will nevertheless operate to convey title. So, in the absence of statutory authorization, or an express provision for a forfeiture or reconveyance, a deed will not be avoided or canceled because the consideration agreed on is not paid, or because the grantee fails to perform a promise forming the whole or part of the consideration therefor'; nor will failure to perform such a promise ordinarily give rise to a lien or charge against the land; nor is a party entitled to have his deed set aside and canceled simply because he has not received full consideration. ’ ’
An Arkansas case, Wheeler v. Wendleton, 209 Ark. 601, 191 S. W. 2d 952, is cited. There, this court stated:
"The fact that the consideration for this agreement was not paid would not revest the title in Hunt, but Avould only give him a right to enforce collection of the amount due him for his improvements and taxes.” * * *
We are firmly of the opinion that, even if failure of consideration were established, appellees would not be entitled to cancellation of the deed because of that fact alone. There is an exception to the general rule, vis, that Avhen a deed is executed in consideration of future support and maintenance — then, if the provision is not fulfilled by the grantee, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration. In Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331, this court commented:
“* * * Our cases hold that when a deed is executed in consideration of future support and maintenance — as here — then, if the grantee fails to fulfill the provisions of the deed, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration.”
Appellees here contend that the $3,500 was for support of the mother, and that accordingly, the chancellor properly cancelled the dead.
Let us look to the circumstances herein, commencing with an examination of the deed. First, that instrument does not recite that the $3,500.00 is to be paid to the mother; rather, the wording of the conveyance indicates that this sum of money had been received by all grantees.4 It will be noted that there is no provision in the deed requiring Dr. Bryant to provide support in the future; in fact, there is nothing to indicate that the $3,500 lump sum payment (shown as paid) was to be used for support. Of course, if the money had been paid to the mother, she would have been privileged to use it for support or whatever else she desired. The point is that there was no obligation on Dr. Bryant to do anything in the future for his mother except provide a place for her to live for the remainder of her life — which was done. Be that as it may, we do not feel that appellees have established by the necessary quantum of proof either that the $3,500 represented'support money for Lou Bryant, or even that Dr. Bryant failed to pay the $3,500. In Kirkham v. Malone, 232 Ark. 390, 336 S. W. 2d 46, we said:
“At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. ’ ’
Appellant offered witnesses who testified that the $3,500 had been paid. On the other hand, appellees offered testimony to the effect that it had not been paid. It is evident that Dr. Bryant considered that the transaction had been consummated, else he would not have conveyed the property to his attorney and then obtained a conveyance back to himself and second wife. By virtue of this act, it would appear that the doctor recognized that his first wife still had an interest in the tract at that time.
The testimony of appellees is conflicting as to who was to receive the $3,500. For instance, Lou Bryant, the mother, testified that the $3,500 was to be paid to her and the children; that it was to be divided equally between all of them. A daughter, Hecldie Tucker, likewise testified that the money was to be paid to the mother and the heirs (meaning the children); that she (the witness) was to receive a part of the money. Mae Kilby, another daughter, also testified that, in addition to her brother providing a place for the mother to live, $3,500 was to be paid to the mother and to the children for the property. At another point in her testimony, the witness stated that “Mother would have money to live on.” Anna Barber, a daughter, testified that Dr. Bryant “was supposed to support my mother, but he did not.” Wesley Bryant, a son, stated, “It was my understanding that Dr. Bryant was to deposit the purchase price of this land in the bank, and it was agreed that my mother would be supported by this deposit until her death, and any money left at her death would be divided among the heirs.” Oda Rogers, a daughter, testified that her brother was supposed to put $3,500 in the bank to be used by the mother. All of the appellees who testified stated that no part of the $3,500 was paid to any of them; this testimony, of course, could mean nothing more than that they had not individually received any money.5
It is obvious that appellees themselves were not in agreement as to who would receive the money, which means that they certainly were not in agreement that it was to be paid solely to the mother, or that it was to be used for her support. Appellees alleged fraud in the procurement of the deed, but the chancellor made no finding of fraud, nor would the proof support such a finding. In fact, we think the testimony falls far short of establishing by clear, cogent, and convincing testimony that the $3,500 ivas to be used for the support of the mother, or that the money was not paid, though there was more evidence concerning the latter than the former.
The decree is accordingly reversed, and the cause remanded to the Montgomery County Chancery Court, with directions to enter a decree cancelling the following deeds to the forty-acre tract involved in this litigation :
Dr. Robert L. Bryant and wife, Gerry Matsuko Bryant, to Jerry Witt and wife;
Jerry Witt and wife to Dr. Bryant and Gerry Matsuko Bryant;
Gerry Matsuko Bryant to Lou Bryant.
It is so ordered.
McFaddin, J., dissents.