Dixon v. Milling

59 So. 804, 102 Miss. 449

• Court: Mississippi Supreme Court
• Decided: March 15, 1912
• Status: Published

Opinion

Reed, J.,

delivered the opinion of the court.

The appellees filed their bill to cancel a deed executed and delivered by them to appellant for failure of consideration. The deed states the consideration to be “one dollar paid in hand.” The appellees claim the real consideration to be the promise by appellant to care for and support their mother, Mrs. Sarah J. Dixon. She is the widow of John C. Dixon, who executed a deed in 1877,. conveying to her the land in controversy for her life, and the remainder to his nine ‘children. Appellant is one-of the' children.

It is claimed that appellant failed to care for and support his mother during the latter part of her life, and it is admitted that for a time after the execution of the deed he did properly take care of her. Have the appellees the right to rescind and cancel the deed of conveyance because of the failure of a part of the consideration which they claim induced them to execute the same? It is stated in 13 Cyc. page 593, that want or inadequacy of consideration by itself, or a subsequent partial failure-of consideration, is no ground for setting aside a deed.. In the case of Day v. Davis, 64 Miss. 253, 8. South. 203, the following is announced as the. rule relative to the-right of a grantor to set aside a voluntary deed: “A voluntary conveyance of land cannot be vacated, at the-instance of the grantor thereof, upon the mere ground that it was made without any consideration; nor will such grantor be permitted to dispute the existence of the consideration expressed in the deed.”'

There have been various decisions of the courts relative to the right of a grantor to vacate a deed for failure <of consideration, where such consideration consisted of ;a promise by the grantee to support and care for the grantor during the remainder of the grantor’s life. In connection with this, it is stated in Pomeroy’s Equity Jurisprudence, vol. 2, par. 686, as follows: “The general rule that the mere failure by grantee to perform a promise, which formed the whole or part of the consideration inducing an executed conveyance, gives rise to no right of rescission in the grantor, either at law or in equity, unless such promise amounts to a condition; and it is a rule of construction that, in case the language or intention is doubtful, the promise or obligation of the grantee will be construed to be a covenant, limiting the grantor to an action thereon, and not a condition subsequent with the right to defeat the conveyance.” In the states where the courts have granted cancellation of a deed on the ground of hardship of the situation, and for similar reasons, the rule relative to constructive fraud has been extended to great and uncertain lengths. This court will follow the rule as announced in the foregoing quotation from Mr. Pomeroy, and this is fully sustained in the case of Gardner v. Knight, 124 Ala. 273, 27 South. 298. In that case it is decided that a deed conveying land in consideration of an agreement to support the grantor cannot be canceled for breach of the undertaking; the remedy being by an action on the undertaking.

The deed in the instant case is absolute on its face. The validity of the deed as an operative conveyance cannot be successfully attacked for the reason that appellant has not fully performed the promise which it is c]aimed that he made and formed the consideration inducing’appellees to execute the instrument. In view of the foregoing statement of the law applicable to this case, and the conclusion therefrom that the chancellor erred in rendering his decree in this case, it is useless to discuss the question raised relative to the introduction of parol evidence touching the consideration of the deed.

Reversed, and till dismissed.