Helms v. Helms.

47 S.E. 415, 135 N.C. 164, 1904 N.C. LEXIS 19

• Court: Supreme Court of North Carolina
• Decided: April 26, 1904
• Status: Published

Opinions

CLARK, C. J., dissenting. Elmira Helms being the owner of an undivided one-sixth interest in the locus in quo, executed a deed on August 14, 1897, to William L. Helms, conveying such interest to him in (165) consideration of "One dollar to her paid by William L. Helms, the receipt of which is hereby acknowledged, and the further consideration of the support during the natural life of the party of the first part." Following the covenant of warranty are these words: "And it is further understood and agreed between the parties that the above lands shall stand good for the support and maintenance of the said Elmira Helms during her natural life." This deed was recorded August 14, 1897.

On August 17, 1898, the said Elmira conveyed her one-sixth interest in a part of the land to Gabriel W. Helms. This interest was afterwards conveyed to defendant Haney Helms. Elmira died February 3, 1903. W. L. Helms on April 7, 1903, brought this special proceeding, making the other tenants in common parties defendants, for the partition of the land, claiming one-sixth interest therein by virtue of said deed from Elmira. The defendant Haney Helms filed a separate answer denying that the said William L. owned any interest in the land, for that in the execution of the deed it was understood and agreed that the consideration thereof was the future support and maintenance of the said Elmira by him, and that he undertook and agreed that he would support her during her natural life, and if he failed to do so said deed would be void. He also says that such condition should have been inserted in the deed, but was omitted by "inadvertence or otherwise" of the draughtsman. That he never supported the said Elmira and disclaimed having any interest in said land. He sets up the deed from Elmira to Gabriel, and the heirs of Gabriel to himself, for her undivided interest in the land. He further says that the real owners of said land have made partition thereof and are in possession of their respective shares. He asks that the deed from Elmira to the plaintiff be canceled, etc. By an amended answer the defendant (166) Haney says that the plaintiff failed and refused to support the said Elmira, and that in her last sickness she required attention, etc., amounting in value to $10 per month, and that by reason thereof the land became subject to a charge of several hundred dollars. That by the deed of Elmira to Gabriel Helms, and from the heirs of Gabriel to him, he is subrogated to the rights of Elmira, "in and to the charge on the land for the support, etc., of said Elmira," and he hereby pleads the same as an estoppel or bar to any claim for the said land by the said W. L. Helms." The plaintiff filed a reply to the new matter set up in the answer denying same. The cause was transferred to the civil issue docket for trial. The plaintiff tendered the following issue: "Is the plaintiff the owner and entitled to be let into possession of the one-sixth interest in the land described in the complaint?"

The defendant tendered several issues directed to the inquiry whether there was an agreement between Elmira and W. L. Helms that the deed should be void if W. L. Helms failed to support said Elmira, and whether such agreement was omitted by the mutual mistake or ignorance of the parties or of the draughtsman, also whether W. L. Helms supported said Elmira, and the value of such support. His Honor declined to submit the issues tendered by the defendant and adopted that tendered by the plaintiff. Defendant excepted. In respect to the first two issues tendered by the defendant, it is sufficient to say that if found in the affirmative such finding could not have affected the result or judgment. It would have amounted simply to a finding that the parties made an agreement and that they failed to insert it in the deed. The proposition is stated by the defendant when he placed M. L. Flow upon the stand and proposed to prove by him that he "drew the deed, and that Elmira stated to W. L. Helms at the time, and before (167) delivering the deed, that the deed should be void if W. L. Helms failed to provide for and take care of Elmira." There is no suggestion in the evidence offered that there was any agreement or understanding that the provision should be put in the deed, or that the draughtsman was instructed to do so. Green v. Sherrod, 105 N.C. 197, is exactly in point, as is also Morris v. McLam, 104 N.C. 159, and Frazierv. Frazier, 129 N.C. 30. If the deed had contained the words suggested, they would have constituted a condition subsequent. Could advantage have been taken of its breach by any one except the grantor, and is there any allegation that she did so? The exception to his Honor's refusal to submit these issues cannot be sustained. The other issues tendered were immaterial. The only question upon which the decision of the cause depended is whether the words "and for the further consideration of the supportduring the natural life of the party of the first part by the party of thesecond part" create a condition subsequent, and if so, whether in the light of the pleadings the said Elmira availed herself of the breach, or whether her deed vested in the defendant the power to enter for condition broken. The defendant Haney Helms was introduced by the plaintiff. The defendant upon cross-examination proposed to show by him that the plaintiff never supported, cared for or maintained Elmira in any way whatever, or contributed thereto, after the execution of the deed. That he admitted he did not claim any interest in the land in controversy. That such admissions were made before and after the death of Elmira. That in consequence of such statements he took the deed from the heirs of Gabriel Helms. That W. E. Williams and wife supported Elmira; that the plaintiff never took exclusive possession of said land, but simply went on the same to live with Elmira a short time after execution of the deed and remained there only six months, and (168) abandoned all claim to the land, etc. To all of this evidence the plaintiff objected, and upon the objection being sustained the defendant excepted. Defendant moved to dismiss the proceeding under the Hinsdale Act, and to his Honor's refusal to allow the motion excepted. Defendant introduced M. L. Flow and proposed to ask him the questions hereinbefore set out, also as to conversation with plaintiff in regard to the land before and since the death of Elmira. All of this proposed evidence was, upon objection, excluded, and defendant excepted. The defendant offered to show by the tax list that plaintiff had not listed the land for taxes. This was excluded. Defendant renewed his motion to dismiss, and to his Honor's refusal excepted. The Court instructed the jury that if they believed the evidence, which was documentary, to answer the issue Yes, and to this the defendant excepted. The defendant assigns a large number of errors; they all involve the same question and must be disposed of upon the same principle. Does the language of the deed operate as a condition subsequent, the breach of which entitles the grantor to avoid the deed and divest the title out of plaintiff, or does it operate as a covenant to furnish support, a breach of which constitutes a charge upon the land? The rule of construction is thus stated: "Conditions subsequent are not favored in the law, and are construed strictly because they tend to destroy estates." Kent's Com. (13 Ed.), star page, 130. "If it be doubtful whether a clause in a deed be a covenant or a condition, the courts will incline against the latter construction; for a covenant is far preferable to the tenant."Ibid., 132.

"A conveyance in consideration of support to be furnished the grantor or another person does not create a condition unless apt words of condition are used, and even then it will not be held to create a condition unless it is apparent from the whole instrument that a strict condition was intended." Law of Conveyances (Jones), (169) sec. 646, page 534.

In Laxton v. Tilly, 66 N.C. 327, the deed recited that it was made "for and in consideration of $200 and the faithful maintenance of T. L. and wife P. L." Held, that the maintenance was a charge upon the land.

In McNeely v. McNeely, 82 N.C. 183, the land was devised "To my son Billy at the death of his mother, by him seeing to her." It was held that the words "by him seeing to her" did not operate as a condition to terminate or impair his estate." Smith, C. J., says: "The words are in themselves vague and indefinite, and if an essential and defeating condition of the gift, would be very difficult of application. What is meant by a `seeing to' the widow, and what neglects fall short of that duty? . . . And how is the dividing line to be run between such omissions as are and such as are not fatal to the devise? . . . Titles would be rendered very precarious and uncertain if such matters in pais were allowed to defeat a vested estate."

In Gray v. West, 93 N.C. 442, 53 Am. Rep., 462, the language was: "That A. G. should have support out of the land." Held, that the support was a charge on the rents and profits. In Misenheimer v. Sifford,94 N.C. 592, the devise was to A, "provided he maintained his mother during life comfortably, and shall give her houseroom and firewood during her life or widowhood." Held, a charge on the rents and profits, and not a condition. In Outland v. Outland, 118 N.C. 138, the language was construed a charge on the land. Wall v. Wall, 126 N.C. 405.

The language in Tilley v. King, 109 N.C. 461, was "And if P. H. T. stays with us until after our deaths, then I give this land to him." This was held, Shepherd, J., delivering the opinion, a condition precedent. He says: "The words used by the testator are words of (170) strict condition." The learned Justice distinguishes the case from those "where a devising clause is followed by or coupled with a proviso that the devisee shall pay to another a specific sum or to support or maintain a certain person," citing Misenheimer v. Sifford,supra. Erwin v. Erwin, 115 N.C. 366, which appears to hold otherwise, is overruled in Allen v. Allen, 121 N.C. 328, Montgomery, J., saying: "That being in doubt we are disposed to adopt the first view, because the law favors the vesting of estates and leans to the view of a charge rather than a condition precedent."

Looking to other jurisdictions we find the same trend of thought. InLindsey v. Lindsey, 62 Ga. 456, Jackson, J., says: "The consideration of the deed is the continued support of the father by his son, to whom it is made. This is not a condition precedent." In McCardle v. Kennedy,92 Ga. 198, 44 Am. St. Rep., 85, it is said: "The failure to pay the purchase-money, or the failure to maintain and support the grantor, if that be the consideration, is not a sufficient reason for rescinding the contract of sale." In Pownal v. Taylor, 10 Leigh, 172 (34 Am. Dec., 725), Tucker, P., says: "There is nothing I think in the proposition that the provision for support and maintenance constituted a condition for the breach of which the grantor might reenter. It was a charge, not a condition. It was a declaration of a beneficial interest or a trust which might be enforced in equity, but which was perfectly consistent with the existence of the fee in the grantee." Speaking of the right of the grantor to reenter, he says: "This cannot be unless the grantor had expressly reserved the right to reenter upon failure of the grantee to fulfill the purposes of the grant." A deed was made "in consideration of natural love and affection," as well as "for the better maintenance and support" of the grantor. It was held that the maintenance, etc., was the consideration and not a condition subsequent, etc. (171)Riley v. McNiece, 71 Ind. 434.

The same view is expressed by the Supreme Court of Illinois, the Judge saying: "There is nothing in the form of the language here employed to indicate that it was intended that the conveyance was upon a condition. The words `upon condition' do not appear. There is no clause providing that the grantor shall reenter in any event, and these are the usual indications of an intent to create a condition subsequent." Gallam v. Herbert,117 Ill. 160.

In Ayer v. Emery, 14 Allen (96 Mass.), 67, the same principle is announced, Bigelow, C. J., saying: "But it is perfectly well settled that an estate on condition cannot be created by deed except when the terms of the grant will admit of no other reasonable interpretation." See alsoStoddard v. Wells, 120 Mo., 25. While several of the cases cited arose upon the construction of wills, we find no distinction made and no reason for making any between wills and deeds. The difficulties which readily occur in treating provisions of this kind as conditions are numerous. The uncertainty into which titles would be thrown is a strong reason for construing provisions for support as covenants and not conditions is recognized by the courts. To treat them as mere personal covenants, having no security for their performance save the personal liability of the grantor, would often lead to injustice, leaving persons who had made provision for support in old age or sickness without adequate protection or relief. The courts have almost uniformly treated the claim for support and maintenance as a charge upon the land, which will follow it into the hands of purchasers. In this way the substantial rights of both grantor and grantee are preserved. "The grantee by accepting the deed and entering into possession under it becomes bound by the agreement providing for the support of the grantor, and the provision for support thus becomes equivalent (172) to a life annuity." Devlin on Deeds, sec. 807. It is also said that courts of equity will freely rescind conveyances by parents to sons upon breach of the agreement to support. Buffalow v. Buffalow,22 N.C. 241. Jones on Conveyances, 646. The last clause in the deed from Elmira to plaintiff we think shows that the parties understood that her support was to constitute a charge on the land. It was in this way that the land was to "stand good for the support and maintenance" of said Elmira during her natural life. We therefore conclude that she was during her life entitled to charge upon the land her support. It may be that in the light of the conduct of the plaintiff a court of equity would have declared him a trustee and directed reconveyance of the land, but she sought neither remedy. Buffalow v. Buffalow, supra. The legal title was in the plaintiff, and could not be divested by a subsequent conveyance to some other person. "The grantor cannot rescind a deed in consideration of support for his life by executing a subsequent conveyance without the consent of the grantee for the reason that the support has been withheld. He must resort to his action either for the value of the support withheld or to rescind on equitable grounds." Devlin on Deeds, 975; McCardle v. Kennedy, 92 Ga. 198.

To the suggestion that the defendant was subrogated to the right of Elmira to enforce any claim that she had for her support, it may be said that such claim originated after the execution of the deed to his grantors. If the defendant had actually paid out money for her support, which it was the duty of the plaintiff to have furnished, it may be that equity would have subrogated him to such claim, to be enforced as a charge upon the land in some appropriate proceeding. This question is not presented, because there is no allegation that the plaintiff supported her. Whatever rights Williams may have had in this (173) respect did not pass to the plaintiff by his conveyance. The declaration of the plaintiff as to his interest in the land could not operate as an estoppel in pais. It was proposed to show that he simply said that he did not claim any interest in the land; his deed was on record and the defendant had notice of it. It would seem that he had actual notice. He took the risk of buying with the facts before him. There is nothing in the conduct of the plaintiff commending his claim to the favor of the Court. His conduct is another illustration of the necessity for carefully safeguarding the rights of persons who convey their land to secure a support in their last days. In the reported cases of this and other states, as well as the experience of most lawyers, is found painful proof of the danger of weak and unusually ignorant persons making such dispositions of their property. Courts of equity will relieve them upon slight evidence of fraud, and courts of law will protect them as best they can by charging the support on the land. It would, however, render titles uncertain and precarious to construe into a condition that which is a matter of consideration or at most a covenant. We have carefully examined the numerous exceptions of the defendant and find no error in his Honor's rulings.

No error.