Elswick v. Elswick

295 S.W. 1070, 220 Ky. 723, 1927 Ky. LEXIS 638

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: June 24, 1927
• Status: Published

Opinion

Opinion op the Court by

Judge Logan

Reversing.

Appellee conveyed a tract of land to appellants in consideration of their comfortably supporting and providing for him and his wife during their lives. He is the father of Kenis Elswick, and Dixie is the wife of Kenis. The deed was executed in October, 1924, at the time appellee’s wife was helpless. It was about two weeks after the conveyance before appellants took possession of the place and before the appellee and his wife took up their abode with them. The wife of appellee died within a few' weeks after the deed was executed. The next day after her 'burial the appellee left the home of appellants and since has refused to return. He instituted this suit to cancel the deed, apparently based upon the belief that there was a failure of consideration. The chancellor granted him the relief sought, but required him to pay certain expenses which appellants had incurred in carrying out their agreement.

Appellee must be able to offer substantial evidence that appellants have failed to comply with the provisions of the deed before he may have a cancellation. If the old man has left the home of appellants because of imaginary wrongs or because he became dissatisfied without any substantial reason for his dissatisfaction, he is without right to have the deed canceled. It appears to us that the cause is largely founded on the belief that appellee might repudiate the contract if he became dissatisfied, but such is not the law. Appellee gave as the reason why he would not remain at the home of appellants, that he was not satisfied. He said:

“I wasn’t satisfied, and Dixie did not treat me as she ought to.”

He was requested by bis counsel to tell tbe court m bis own way how sbe treated bim, and tbis is what be said:

“A day or two before sbe died (bis wife) I was trying to wait on my wife, and Dixie (wife of appellant Kenis) was helping, and I tried to raise ber up and put something under ber, and Dixie jerked me just as vicious, and made like sbe was going to strike me; I turned away and cried, and that is 'in me yet, and it hurt my feelings, and that is tbe reason I did not stay. ’ ’

He further complained that Dixie would “fly up” and bad talked mean to bim. He illustrated what be meant by stating that be once brought in some coal and put it beside tbe fire, and sbe told bim not to put it on the hearth; be then asked ber for a bucket to put tbe coal in, and sbe did not get it for bim. It appears that tbe old man wanted to put tbe coal on tbe hearth, and sbe objected because sbe did not want tbe hearth messed up. He makes no complaint whatever against bis son. He left tbe home of appellant and went to North Carolina, where be stayed during tbe winter after tbe death of bis wife working at odd jobs. His son sent bim some money, but finally declined to send bim any more and insisted that be should return home. Tbis appellee refused to do.

Appellee introduced a few witnesses to show that Dixie was high tempered, but, on tbe other band, ber neighbors testified abundantly to ber good qualities. They described ber as.a most amiable woman, who was very kind to tbe appellee. Tbe proof is abundant that appellants are willing and able to support appellee, and to comply with tbe conditions of tbe deed. If be puts it out of their power to render tbe services contemplated, be cannot bold them responsible for their failure to do so. Where a deed is executed for such a consideration, tbe grantees are held to a strict performance of their part of tbe contract, but they cannot be subjected to unreasonable requirements. Tbis record does not show that appellants have either failed or refused to comfortably provide for appellee in accordance with their agreement. Under tbe facts in tbis case, they are under no obligation to support bim except in tbe home which they offer to bim.

Appellee relies upon tbe case of Bevins v. Keen, 63 S. W. 428, 23 Ky. Law Rep. 757. Tbe case is not in point. The court found in that casq that the son had mistreated his father and failed to provide for him. Such were the findings in the case of Lane v. Lane, 106 Ky. 530, 50 S. W. 857, 21 Ky. Law Rep. 9, and in the case of Cash v. Cash, 19 Ky. Law Rep. 686, 41 S. W. 579.

This case falls within the rules announced in Brooks v. Richardson, 144 Ky. 102, 137 S. W. 840, and Hatfield v. Harris, 197 Ky. 490, 247 S. W. 729.

In the case of Bowles’ Adm’r v. Harvey, 189 Ky. 598, 225 S. W. 367, this court said:

“One who conveys his land to another, in consideration of support, cannot claim a failure of consideration where he alone is responsible for the grantee ’s failure to carry out the agreement. ’ ’

It appears to us that this case falls within the rule announced in the quotation above. The appellee should return to the home of appellants and give them an opportunity to fulfill their duty under the terms of the deed. If they should fail to do so, he would have his remedy, but we are forced to hold that he has given them no opportunity to comply with their part of the agreement. He did not even remain with them one day after the death of his wife. She was in a dying condition when they took her to their home, and her death occurred within about two weeks thereafter.

s There is collateral evidence on both sides tending to show on the one side that appellee had thought of marrying again and f orthat reason wanted to recover his place, and on the other side showing that the appellants had said that the appellee would have to comply with their wishes if he remained with them. This evidence is of no importance in this case.

Judgment is reversed, and cause remanded for judgment dismissing the petition.