Whittaker v. Trammell

110 S.W. 1041, 86 Ark. 251, 1908 Ark. LEXIS 408

• Court: Supreme Court of Arkansas
• Decided: May 18, 1908
• Status: Published

Opinion

Hart, J.

(after stating the facts). The allegations of the complaint that the execution of the deed was procured by duress or undue influence were not sustained by the evidence. The chancellor did not so find. He seems to have proceeded upon the theory that the estate of Thomas Whittaker, Jr., was liable to be defeated in his lifetime upon condition of his failure to support his mother, and also that there is a possibility of reversion in the heirs of Thomas Whittaker, Sr., if Thomas Whittaker, Jr., should die in the lifetime of his mother.

. Upon the first proposition, the law is that where the consideration of a deed is the grantee’s undertaking to support the grantor, and the grantee fails to comply with such -undertaking, the grantor’s remedy is either to sue at law for the amount of the consideration as it would become due, or else to treat the contract as void, and sue in equity to cancel it. Salyers v. Smith, 67 Ark. 526.

In the present case, there has been no breach of the contract, and, if there had been, Margaret Whittaker, the surviving grantor, being sui juris, alone would have a -right of action.

We do not think there is a possibility of a reversion in the heirs of Thomas Whittaker, S'r., deceased. Considering the deed and agreement as one instrument, the land was conveyed to Thomas Whittaker, Jr., with the reversion in his father and mother if he should die before either of them. The father being now dead, if Thomas Whittaker, Jr., should die before his mother, the estate would vest in her, and would not go to the heirs of Thomas Whittaker, Sr., deceased. Any other construction would defeat 'the purpose of the deed.

The deed was executed to provide a means of support to Thomas Whittaker, Sr., and his wife, in their old age, and for their mutual benefit. The land was their homestead, and could not be conveyed without her joining in the deed.

Margaret Whittaker expressed herself as satisfied with the conveyance made by her son, Thomas Whittaker, Jr., and the other heirs having no interest in the land are not in a position to complain.

Reversed and remanded with directions to dismiss the complaint for want of equity.