WOOD, J.,
(after stating the facts). (1) Appellant contends that the demurrer to the complaint should have been sustained for the reason that the appellee did not tender therein compensation for the betterments nor offer to restore the benefits she received from the appellant. The general rule is that a plaintiff in a suit for the rescission or cancellation of ,a written instrument should allege in his bill that prior to the institution of his suit he had a made a formal tender to restore to the defendant whatever benefits he had received as the result of the transaction, or that he had offered to return such benefits. This principle grows out of the equitable maxim that, “He who seeks equity must do equity.” 4 R. C. L. pp. 511-12-13.
The rule is not applicable here for the reason that the allegations of the appellee’s complaint show that the appellee received no benefits whatever by way of consideration for the deed which she executed to appellant. But on the contrary the allegations of her complaint show that as a result of the conveyance the appellant had received personal property belonging to the plaintiff which she alleged was of the value of $1,700 and that he had received from the rents and profits from the farm the sum of $2,800 and that the labor of the plaintiff over and above what she had received was worth $700. Therefore, it is a complete answer to appellant’s contention to say that the allegations of the complaint show that the appellee had received no benefits, and therefore there was nothing for her to tender or offer to return as a prerequisite to maintaining her suit for cancellation.
(2-4) Appellant contends that the appellee is barred by laches and is estopped by her conduct from maintaining this suit. His counsel say that “he had had possession and management of the farm at least from the date of his deed in September, 1909, until the bringing of this suit in November, 1915, a period of a little over six years, and that according to the contention of the appellee he had not been contributing anything to the support of herself or mother during the latter’s lifetime nor to the support of appellee since the death of her mother. ’ ’
The testimony is exceedingly voluminous, and it has been abstracted in such manner as to necessitate our examining the record and reading the ^testimony of the witnesses in detail. . To set out and discuss this evidence would extend this opinion to great length, ,and could not serve any wise or useful purpose. In fact, the nature of the evidence is such that it is far better that much of it be not preserved in the permanent records of our reports. It will suffice to state in a general way our conclusions.
If the appellee had predicated her right to a rescission and cancellation of the contract between herself and the appellant and a cancellation of her deed upon a mere failure of consideration in that appellant had refused to provide food and clothing and had failed to comply with his contract to support appellee and her mother by refusing or neglecting to furnish créature comforts that were necessary for their physical existence, then we would hesitate to say that the proof was sufficient to warrant the finding and decree of the court. For, while the appellee testified in a general way that appellant had never supported her or her mother, had never furnished them anything, and that the home place took care of them and supported them, and that they sold chickens and eggs to help buy their supplies, yet her testimony further shows that it was understood that she was to keep house for herself, her mother, and appellant, and they were all to live together. It further shows that he managed the farm and had control of everything on the place. Her testimony shows that it was contemplated that she was to do work on the place. In fact, she testified that. she picked cotton, not because she had to, but because she wished to do so. '"While her testimony shows that the appellant neglected her and did not furnish ¡her food .and clothing and protect her from hard labor as she intended should be done when she signed the contract and deed, yet the testimony of the appellant stoutly denied that he had failed in any respect to provide for the appellee and her mother the necessaries of life, and that he was at all times affectionate and attentive to them, and secured for them all the help they needed, and, in short, fully complied with his contract to support and maintain them. Therefore, as already stated, if it were only a question as to whether or not appellant had complied with his contract to provide the necessary food and clothing for the appellee ,and her mother, the burden being upon the appellee it could hardly be said that she had shown by the preponderance of the evidence that the appellant had breached his contract and that the consideration for the deed had failed. But the obligation of appellant to support and care for his grandmother and aunt during the remaining years of their lives, written as the express consideration in the deed, included not only the duty to furnish them food and clothing but also the duty to provide for them a home suited to their condition in life where they could live with comfort. It would be idle to say that he complied with his contract by merely administering to their physical necessities when by his conduct he had made it impossible for them to use or enjoy these necessities in ease .and peace and had actually rendered their condition in life intolerable.
In addition to the allegation that appellant had failed to provide appellee .and her mother “with all the necessary conveniences and comforts of life” appellee alleges that appellant “would frequently return home drunk or in an intoxicated condition, .and sometimes bring others with him in a like condition and be boisterous .and abusive and insulting to the plaintiff and subject her ánd her aged mother to great indignities and humiliation. That his continued acts of neglect, dissipation and abuse of plaintiff have been kept up until it has become intolerable and unbearable. That he quarreled at plaintiff, called her bad names, applied to her vile epithets, accused her of stealthily slipping things aw.ay from the place, and has become so depraved that he often, when they were at home alone, solicited plaintiff to commit incest by cohabiting with him. That his drunkenness and inhuman conduct have become unbearable for the plaintiff and for her own personal safety she has been compelled to leave her home and seek protection among her relatives. ’ ’
The court found among other things that appellant by his conduct towards appellee “has rendered her condition with him intolerable and unbearable. ’ ’ The testimony of the appellee, herself, tends to prove specifically all these allegations. She testifies that after the execution of the deed and as early as 1910 the appellant began to drink whiskey;.he would go off and come home intoxicated and be very ill; he got worse every year; she would remonstrate with him and he would answer her in a very rough manner, telling her that it was none of her business. She described fully many of his debaucheries and his conduct during those times much of which is exceedingly revolting, and clearly shows, if true, that appellant, instead of providing for appellee a home where she could live comfortably, had made her home a rendezvous for his own and associates’ dissipation, and by so doing had rendered her condition in life wholly intolerable.
Free access — add to your briefcase to read the full text and ask questions with AI
WOOD, J.,
(after stating the facts). (1) Appellant contends that the demurrer to the complaint should have been sustained for the reason that the appellee did not tender therein compensation for the betterments nor offer to restore the benefits she received from the appellant. The general rule is that a plaintiff in a suit for the rescission or cancellation of ,a written instrument should allege in his bill that prior to the institution of his suit he had a made a formal tender to restore to the defendant whatever benefits he had received as the result of the transaction, or that he had offered to return such benefits. This principle grows out of the equitable maxim that, “He who seeks equity must do equity.” 4 R. C. L. pp. 511-12-13.
The rule is not applicable here for the reason that the allegations of the appellee’s complaint show that the appellee received no benefits whatever by way of consideration for the deed which she executed to appellant. But on the contrary the allegations of her complaint show that as a result of the conveyance the appellant had received personal property belonging to the plaintiff which she alleged was of the value of $1,700 and that he had received from the rents and profits from the farm the sum of $2,800 and that the labor of the plaintiff over and above what she had received was worth $700. Therefore, it is a complete answer to appellant’s contention to say that the allegations of the complaint show that the appellee had received no benefits, and therefore there was nothing for her to tender or offer to return as a prerequisite to maintaining her suit for cancellation.
(2-4) Appellant contends that the appellee is barred by laches and is estopped by her conduct from maintaining this suit. His counsel say that “he had had possession and management of the farm at least from the date of his deed in September, 1909, until the bringing of this suit in November, 1915, a period of a little over six years, and that according to the contention of the appellee he had not been contributing anything to the support of herself or mother during the latter’s lifetime nor to the support of appellee since the death of her mother. ’ ’
The testimony is exceedingly voluminous, and it has been abstracted in such manner as to necessitate our examining the record and reading the ^testimony of the witnesses in detail. . To set out and discuss this evidence would extend this opinion to great length, ,and could not serve any wise or useful purpose. In fact, the nature of the evidence is such that it is far better that much of it be not preserved in the permanent records of our reports. It will suffice to state in a general way our conclusions.
If the appellee had predicated her right to a rescission and cancellation of the contract between herself and the appellant and a cancellation of her deed upon a mere failure of consideration in that appellant had refused to provide food and clothing and had failed to comply with his contract to support appellee and her mother by refusing or neglecting to furnish créature comforts that were necessary for their physical existence, then we would hesitate to say that the proof was sufficient to warrant the finding and decree of the court. For, while the appellee testified in a general way that appellant had never supported her or her mother, had never furnished them anything, and that the home place took care of them and supported them, and that they sold chickens and eggs to help buy their supplies, yet her testimony further shows that it was understood that she was to keep house for herself, her mother, and appellant, and they were all to live together. It further shows that he managed the farm and had control of everything on the place. Her testimony shows that it was contemplated that she was to do work on the place. In fact, she testified that. she picked cotton, not because she had to, but because she wished to do so. '"While her testimony shows that the appellant neglected her and did not furnish ¡her food .and clothing and protect her from hard labor as she intended should be done when she signed the contract and deed, yet the testimony of the appellant stoutly denied that he had failed in any respect to provide for the appellee and her mother the necessaries of life, and that he was at all times affectionate and attentive to them, and secured for them all the help they needed, and, in short, fully complied with his contract to support and maintain them. Therefore, as already stated, if it were only a question as to whether or not appellant had complied with his contract to provide the necessary food and clothing for the appellee ,and her mother, the burden being upon the appellee it could hardly be said that she had shown by the preponderance of the evidence that the appellant had breached his contract and that the consideration for the deed had failed. But the obligation of appellant to support and care for his grandmother and aunt during the remaining years of their lives, written as the express consideration in the deed, included not only the duty to furnish them food and clothing but also the duty to provide for them a home suited to their condition in life where they could live with comfort. It would be idle to say that he complied with his contract by merely administering to their physical necessities when by his conduct he had made it impossible for them to use or enjoy these necessities in ease .and peace and had actually rendered their condition in life intolerable.
In addition to the allegation that appellant had failed to provide appellee .and her mother “with all the necessary conveniences and comforts of life” appellee alleges that appellant “would frequently return home drunk or in an intoxicated condition, .and sometimes bring others with him in a like condition and be boisterous .and abusive and insulting to the plaintiff and subject her ánd her aged mother to great indignities and humiliation. That his continued acts of neglect, dissipation and abuse of plaintiff have been kept up until it has become intolerable and unbearable. That he quarreled at plaintiff, called her bad names, applied to her vile epithets, accused her of stealthily slipping things aw.ay from the place, and has become so depraved that he often, when they were at home alone, solicited plaintiff to commit incest by cohabiting with him. That his drunkenness and inhuman conduct have become unbearable for the plaintiff and for her own personal safety she has been compelled to leave her home and seek protection among her relatives. ’ ’
The court found among other things that appellant by his conduct towards appellee “has rendered her condition with him intolerable and unbearable. ’ ’ The testimony of the appellee, herself, tends to prove specifically all these allegations. She testifies that after the execution of the deed and as early as 1910 the appellant began to drink whiskey;.he would go off and come home intoxicated and be very ill; he got worse every year; she would remonstrate with him and he would answer her in a very rough manner, telling her that it was none of her business. She described fully many of his debaucheries and his conduct during those times much of which is exceedingly revolting, and clearly shows, if true, that appellant, instead of providing for appellee a home where she could live comfortably, had made her home a rendezvous for his own and associates’ dissipation, and by so doing had rendered her condition in life wholly intolerable.
While appellant in his testimony categorically denies these alleged charges of drunkenness and misconduct, we are convinced from his own testimony and the testimony of other witnesses that these allegations are in the main sustained. The testimony of the appellant, himself, shows that he contracted the habit of drink as early as 1904 long before the death of his grandfather. While he denied that he ever drank whiskey at any time to an extent to cause him to neglect his business, and denied that he ever drank on the place, yet his own brother, who lived with them continuously during the year 1915, testified that he saw appellant there drunk or intoxicated a good many times and quarreling with the appellee three or four times; that he came in after night in an intoxicated condition and brought others with him, whom witness presumed to be drinking. One witness, who lived with them in 1909, and who lived a little over one-half mile from them in 1910-11 and 12, and was about the house a good deal and witnessed the conduct of appellant, saw him drinking and keeping whiskey there .all the time; saw him and others with him intoxicated frequently in the presence of the appellee; heard him say he built the little barn, back of the house, to lock his whiskey up in; heard him talking loud and making noises, had seen crowds over there a few times on Sundays .and a few times had heard shooting and hollering on Sundays like drunken fellows. Another witness testified that more than once he had been over there and every time appellant had whiskey and would be drinking.
The testimony discloses, therefore, that the year afterappellee had executed the deed appellant began to drink to excess and that the appellee remonstrated with him and endeavored to reform him and that he continued, notwithstanding, until his drunkenness, and misconduct towards appellee, produced thereby, became such as to render her condition intolerable.
The doctrine of laches and estoppel has no application to such a state of facts. The aunt could not be considered guilty of laches because she endeavored by persuasion to have her wayward nephew abandon his drink habit, which was manifestly the cause of his neglect of herself and mother, and his bad treatment of her. She could not be estopped because she had not upon the first occasion of -his drunkenness and neglect declared his contract forfeited and taken steps to cancel the deed. If appellant had at any time yielded to the admonitions and entreaties of his aunt and had abandoned his' cups and shown a willingness to -comply with his contract, then the appellee would have had no cause of action .against him. Therefore, it can not be held that appellee would be es-topped because through several years she endured the profligacy of her nephew in an effort to reform him and to obviate tbe necessity of having to resort to the law in order to secure her rights under the contract and deed.
This court is committed to the doctrine, which is supported by the great weight of authority, as announced in 4 R. C. L. p. 509, sec. 22, that: “Where a grantor conveys land, and the consideration is an agreement by the grantee to support, maintain, and care0 for the grantor during the remainder of her or his natural life, and the grantee neglects or refuses to comply with the contract, that the grantor may, in equity, have a decree rescinding the contract and setting aside the deed and reinvesting the grantor with the title to the real estate.” Salyers v. Smith, 67 Ark. 526-531; Priest v. Murphy, 103 Ark. 464; Whittaker v. Trammell, 86 Ark. 25.
The rationale of the doctrine is that .an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract and, therefore, vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and where the grantee intentionally fails to perform the contract, the .remedy by cancellation, as for fraud, may be resorted to regardless of any remedy that the grantor may have had also at law. See Salyers v. Smith, supra; 4 R. C. L. supra; Russell v. Robins et al., 247 Ill. 510; Luther Stebbins v. Joseph Petty et al., 209 Ill. 291; Spangler et al. v. Warborough, 23 Okla. 806; see also Bruer v. Bruer, 109 Minn. 260; Abbott v. Sanders, 80 Vermont 179; Glocke v. Glocke, 113 Wis. 303. See also, case note 43 L. R. A. (N. S.) 918-925.
The findings of the court, that the personal property involved was the property of the appellant and that appellant had received rents and profits sufficient to pay him for the improvements which he had placed upon the land, are correct. We find no reversible error in the record, and the decree is therefore affirmed.