Salyers v. Smith

55 S.W. 936, 67 Ark. 526, 1900 Ark. LEXIS 143

• Court: Supreme Court of Arkansas
• Decided: March 3, 1900
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) The proof is hardly sufficient to justify a finding by the chancellor that appellants had refused to support the appellee, if such support were a part of the consideration, or the only consideration, for the deed. Until appellants had positively refused to render him the support promised, or had done some act tantamount to that, conceding that such was the consideration for the deed, there could be no cause of action to appellee. If the conduct of appellants was such to make the life of appellee intolerable, and to force him to quit their home, still, in a suit brought to recover an amount sufficient for such support, the measure of the damages would be the amount required for such support during the time only that the appellee had been forced to support himself up to the bringing of the suit. Judgment could not be rendered for future support, for that had not accrued, and was not due under the contract, if same should be construed as a continuing contract. Especially would there be no cause of action as to that when the defendants (as here) alleged and proved that they were willing to and would continue such support, if the appellee would only permit. This would have been a complete fulfillment of their contract, and the consideration had not, then, failed.

But, whatever view may be taken of the nature of the consideration, the deed was an executed contract. There were no provisions in it creating a trust, and an express trust of lands can not rest in parol, Sand. & H. Dig., § 3480.

The chancellor clearly erred in rendering a money judgment for a fixed and continuing amount, and declaring same a lien on the lauds. No vendor’s lien was reserved in the deed. No fraud was charged in the execution of the deed. It expressed a valuable consideration, and was, at least, based upon a good consideration. But if the consideration failed, then the remedy was either to sue at law for the amount of the consideration as it should become due, or else to treat the contract as void, and sue in equity to cancel and set it aside. We cannot find, upon the pleadings and proof, any authority upon which the decree of the chancellor can be upheld. The court seems to have proceeded upon the theory that the appellee had a vendor’s lien for the amount required for his support; we assume, upon the idea that the promised support was in the nature of purchase money. This was not the correct view. No liquidated amount was stated, if we go beyond the consideration named in the deed. There was no contract by appellees “to pay any sum of money whatever, nor the equivalent of any definite.sum in property or services.” Necessarily, the value of the services was variable, depending upon the varying wants and necessities of the poor old blind man, who had already passed his four score and ten. A vendor’s lien would not arise to secure the performance of an act the non-performance of which would make a claim for unliquidated damages. Harris v. Hanie, 37 Ark. 348.

The decree of the Hempstead chancery court is therefore reversed, and the complaint is dismissed for want of equity.