Russell v. Carver

94 So. 128, 208 Ala. 219, 1922 Ala. LEXIS 479

• Court: Supreme Court of Alabama
• Decided: June 30, 1922
• Docket: 8 Div. 414.
• Status: Published

Opinions

SAYRE, J.

Appellee filed the bill in this cause to cancel, vacate, and annul a deed he had made to appellant, his daughter, on consideration that she would support and maintain complainant and his wife during the remainder of their lives. The wife died before any differences arose between the parties, and afterwards defendant, herself well advanced in middle age, married a man between wjiom and complainant there was much bad'feeling. It is averred that defendant failed and refused to perform her Qbiigation under the contract. No question is raised concerning the equity of the bill, it being conceded that in cases of this peculiar character, the remedy at law being wholly inadequate, equity, under our late decisions, will intervene to cancel the deed when the grantee has failed and refused substantially to perform his obligations under the contract. Johnson v. Chamblee, 202 Ala. 525, 81 South. 27. However, we think it well to state the ground of our decree. Such cases are sui generis. Conveyances of property by aged and infirm people in consideration of promised support and maintenance are peculiar in tbeir character and incidents, and with them the courts deal on principles not applicable to ordinary conveyances. Bogie v. Bogie, 41 Wis. 209; Cree v. Sherfy, 138 Ind. 354, 37 N. E. 787; 28 Cent. Law Jour, p. 321. The writer took occasion in Brindley v. Brindley, 197 Ala. 221, 72 South. 497, to remark that the courts very generally have found a way to relief in such cases, and the remark was abundantly justified by the authorities cited. Relief to the grantor in such cases has been based on various considerations. It appears to Mr. Pomeroy that less violence is done to established principles by raising a lien or charge ex equo et bono in the grantor’s favor (5, Pom. Eq. Rem. [2d Ed.] § 2108, note 00), and in several jurisdictions this path is followed; but that remedy has been denied in this state by the decision in Burroughs v. Burroughs, 164 Ala. 329, 50 South. 1025, 28 L. R. A. (N. S.) 607, 137 Am. St. Rep. 59, 20 Ann. Cas. 926. In Gardner v. Knight, 124 Ala. 273, 27 South. 298, it w(is ruled that the grantor had no remedy save by way of action at law; but the authorities elsewhere are well-nigh unanimous that the remedy at law affords no substantial relief. Mr. Pomeroy (section 2108) says: “Legal relief by periodic suits for damages is manifestly inadequate.” And Gardner v. Knight has been overruled. Johnson v. Chamblee, supra. “A contract to support is a contract for personal services; it cannot be performed by another, unless the person receiving the support consents to receive it” from that other. It is also continuous and indivisible in its nature and involves elements of trust. In Grant v. Bell, 26 R. I. 288, 58 Atl. 951, the court said:

“While such contracts are not. often in form a trust, they are usually in fact a trust. One under the stress of infirmity or age surrenders liis property to another, for relief from care and anxiety, and receives in return an assurance of support. The result, so far as the donor is concerned, would be no different if he had made an express deed of trust. The parties do not contemplate a mere contract, but an obligation binding on conscience as well as in law. The arrangement rests in confidence on the part of the grantor. It would, indeed, be a hard rule, when the feeble party has fully performed his part of the contract in the hope of security and quiet, to require him to spend the remainder of his life in lawsuits to compel performance by the other party.”

The courts have differed as to the form and equitable grounds of relief; but, as we have already said, they have held with substantial unanimity that relief will be afforded against conveyances for support on nonperformance of the agreement. Abbott v. Sanders, 80 Vt. 179, 66 Atl. 1032, 13 L. R. A. (N. S.) 723, 130 Am. St. Rep. 974, 12 Ann. Cas. 898. In a plurality of jurisdictions relief in such cases by way of canceling the deed -is granted on the broad gx-ound that there is no adequate relief at law, and equity will not permit a i>arty to enjoy the fruits of a contract when he deliberately refuses to perform the obligations thereby imposed on him. Abbott v. Sanders, 12 Ann. Cas. 898, note bottom of page 901, where the cases are collated; 9 C. J. 1187, § 52, note 19. Our latest adjudication is in line with the eases refei-red to. Johnson v. Chamblee, supra. Woodley v. Woodley, 201 Ala. 662, 79 South. 134, drove to the same result, though that case was affected by a peculiarity not here present, viz. a mortgage to secure the performance of the grantee’s promise.

The issue between the parties is one of fact, defendant averring that, substantially, she has ever been willing to perform and did in fact perform her obligation to complainant as long, as he remained under the roof he gave her, and that his leaving was the x-esult of the petulance and unreasonable humors of old age, not any substantial fault of her own. The evidence has had careful consideration, and - we have concluded, in view of all the circumstances, which need not be stated in detail, that the old man, the complainant, was justified in seeking another dwelling place, and in consequence that the chancellor committed no error in his decree.

Affirmed.

All the Justices concur, except McCLELLAN, J., who dissents.