ed the plaintiff to sell to him for $500 all her interest in land. worth $230,000, which had formerly belonged to her and which she and her husband had conveyed to third persons, who were then in possession. Her interest in such land depended upon a defect in her acknowledgment of the deed, which might render it void, but as to the materiality of which legal opinion was divided. It was held that the contract, as to defendant, was one of hazard, and the price was not so inadequate as to warrant a rescission of the sale. So again, where one borrows money, not to meet current obligations nor by reason of financial stringency or the importunity of his creditors, but to embark in a speculation which promises to be largely profitable, and for this purpose concedes highly advantageous terms to the lender of the money, he cannot obtain the aid of equity to rescind the contract or modify its terms.89

88

§ 168. Grants in Consideration of Support and Maintenance. A conveyance of property made in consideration of the grantee's undertaking to support, maintain, and care for the grantor during the remainder of the latter's lifetime may be set aside in equity, and the grantor restored to the possession and enjoyment of the property, if it was procured by fraud practised upon him," or by taking advantage of his known mental incapacity,"1 or if the consideration to be given was grossly and shockingly inadequate in comparison with the value of the property transferred. But whether the neglect or refusal of the grantee to perform his part of the undertaking will justify a rescission, on the ground of a failure of consideration, is a question which has been much debated. It would seem that the typical case of this kind-where an aged parent has stripped himself of his possessions in order to secure a comfortable maintenance during his declining years, which, after all, is refused

88 Pennybacker v. Laidley, 33 W. Va. 624, 11 S. E. 39. And see Breckenridge v. Waters, 5 T. B. Mon. (Ky.) 150, 17 Am. Dec. 46; Fellows v. Smith, 190 Pa. 301, 42 Atl. 678.

89 Dowdall v. Lenox, 2 Edw. Ch. (N. Y.) 267.

90 Wampler v. Wampler, 30 Grat. (Va.) 454.

91 Good v. Floyd (Tenn. Ch. App.) 48 S. W. 687.

92 Nixon v. Klise, 160 Iowa, 238, 141 N. W. 322; Black v. Post, 67 W. Va. 253, 67 S. E. 1072.

to him—should make the strongest possible appeal to the justice of a court of equity. And many courts have been firm in declaring that the failure of consideration in such cases is by itself a sufficient ground for their intervention and the grant of the relief asked." But others have shown great hesitation and timidity in dealing with the question, arising chiefly from the idea that it might be possible for "law," as distinguished from "equity," to afford some compensation to the injured party. There are numerous decisions to the effect that a deed conveying land in consideration of an agreement to support the grantor cannot be canceled for breach of the promise of support, because the proper remedy is an action at law to recover damages."* Other decisions hold that there must be some special ground of equitable jurisdiction shown, other than the mere breach or repudiation of the promise to support, such as fraud in the procuring of the conveyance or undue influence or imposition, otherwise the grantor must be left to seek his remedy at law.95 To one court it appears that if the grantee had no intention whatever of fulfilling his promise, this constitutes a sufficient measure of fraud to bring the case within the reach of a court of equity.90 But another court is of the opinion that even such a fraudulent intention. on the part of the grantee does not alter the rule that the grantor must pursue his remedy at law."7 Still another view is that the remedy at law is not adequate if the grantee is insolvent or financially unable to pay any judgment which might be recovered against him for the value of the

93 Long v. Long, 104 Ark. 562, 149 S. W. 662; Scott v. Scott, 3 B. Mon. (Ky.) 2; Cash v. Cash, 19 Ky. Law Rep. 686, 41 S. W. 579; Tomsik v. Tomsik, 78 Neb. 103, 110 N. W. 674; Goldsmith v. Goldsmith, 46 W. Va. 426, 33 S. E. 266; Fluharty v. Fluharty, 54 W. Va. 407, 46 S. E. 199; Mootz v. Petraschefski, 137 Wis. 315, 118 N. W. 865; Young v. Young, 157 Wis. 424, 147 N. W. 361.

94 Gardner v. Knight, 124 Ala. 273, 27 South. 298; Lindsey v. Lindsey, 62 Ga. 546; Van Donge v. Van Donge, 23 Mich. 321; Murray v. King, 7 Ired. Eq. (42 N. C.) 19; Deveraux v. Cooper, 15 Vt. 88; Murkowski v. Murkowski, 61 Wash. 103, 112 Pac. 92.

95 Burns v. Cavanaugh, 12 Montg. Co. Law Rep'r (Pa.) 101; Hale v. Witt, 1 Heisk. (Tenn.) 567.

96 White v. White (Tex. Civ. App.) 95 S. W. 733. And see Chamberlin v. Sanders, 268 Ill. 41, 108 N. E. 666.

97 Gardner v. Knight, 124 Ala. 273, 27 South. 298.

support which he promised and failed to render, and that if this can be shown, it will furnish ground for the intervention of equity.98 But even this doctrine does not pass unchallenged, since there is at least one decision to the effect that a bill in equity is not sufficient which alleges the breach of the covenant for support coupled with the insolvency of the grantee, unless it also charges fraud or undue influence in the procuring of the deed.""

But elsewhere it is held that the grantor has his choice of remedies, and may either sue at law for the amount of the consideration (the value of the promised support and maintenance) as it becomes due, or treat the contract as void and sue in equity to cancel it.100 In some states it is ruled that where a grantor executes a deed in consideration of future support, and there is a substantial failure of performance on the part of the grantee, the only remedy is to set aside the deed, since equity cannot compel the grantee to furnish the stipulated support and a court of law cannot make good with damages. 101 And even where the promise of the grantee is secured by a mortgage on the property transferred, it has been thought that the grantor was not limited to his remedy on the mortgage.102 Still other authorities have sought a justification for the interference of equity in these cases in the theory that a conveyance in consideration of support and maintenance creates an implied trust, and when this is renounced by the grantee, equity may decree a reconveyance, 103 or in the theory that the grantee's refusal to comply with his contract raises a presumption of a fraudulent intention on his part, at the inception of the contract, not to perform.104

98 Priest v. Murphy, 103 Ark. 464, 149 S. W. 98; McCardle v. Kennedy, 92 Ga. 198, 17 S. E. 1001, 44 Am. St. Rep. 85; Thompson v. Lanfair, 127 Ga. 557, 56 S. E. 770; Wood v. Owen, 133 Ga. 751, 66 S. E. 951.

99 Anderson v. Gaines, 156 Mo. 664, 57 S. W. 726.

100 Whittaker v. Trammell, 86 Ark. 251, 110 S. W. 1041; Priest v. Murphy (Ark.) 144 S. W. 921.

101 Russell v. Robbins, 247 Ill. 510, 93 N. E. 324, 139 Am. St. Rep. 342; Lowman v. Crawford, 99 Va. 688, 40 S. E. 17.

102 Knutson v. Bostrak, 99 Wis. 469, 75 N. W. 156. 103 Grant v. Bell, 26 R. I. 288, 58 Atl. 951.

104 Stebbins v. Petty, 209 Ill. 291, 70 N. E. 673, 101 Am. St. Rep.

1

Whatever may be the warrant for the intervention of a court of equity in these cases, it will not proceed to undo a settled arrangement unless convinced that there has been a real, substantial, and irremediable breach of the covenant for support. The rights and the just claims of the grantee are to be taken into account as well as those of the grantor. It is true that, ordinarily, where a person has parted with his property in consideration of an agreement for support for life, and discord thereafter arises between the parties, the courts are disposed to give the grantor the benefit of all reasonable doubt and restore the property to him if it can be done without manifest injustice to the grantee. But there is nothing illegal about such contracts, and they are not to be disregarded without good reason. And in the absence of fraud, where the grantee has abandoned another home or other employment to assume the responsibility, and has entered on and for a period of years has discharged the obligations of the contract with reasonable fidelity, he is not to be deprived of the benefit of his contract without legally sufficient cause.105 Such cause exists where there is such a substantial failure to perform as would render the performance of the rest a thing different from that which was contracted for,108 but such cause does not exist where the stipulated support and maintenance has been duly rendered, in a material sense, and the only complaint of the grantor is that he has become dissatisfied with the arrangement and considers that he has not been treated with proper kindness and courtesy.107 There is sufficient reason for setting aside the conveyance when the grantee wholly repudiates his agreement, denies all conditions thereof, and refuses to perform any part,108 or where he has failed to make good his promise for two years consecutively,109 or where he has so materially failed to provide the grantor with proper food

243; Spangler v. Yarborough, 23 Okl. 806, 101 Pac. 1107, 138 Am. St. Rep. 856.

105 Lewis v. Wilcox, 131 Iowa, 268, 108 N. W. 536.

106 Pittenger v. Pittenger, 208 Ill. 582, 70 N. E. 699.

107 Brooks v. Richardson, 144 Ky. 102, 137 S. W. 840; Conner v. Marshall, 11 Heisk. (Tenn.) 706.

108 Pinger v. Pinger, 40 Minn. 417, 42 N. W. 289.

109 Shepardson v. Stevens, 77 Mich. 256, 43 N. W. 918.

and clothing that the latter has become an object of commiseration to his neighbors.110 So where the grantee disables himself from performing what he has promised, or by his own act makes performance impossible, equity will give relief,111 but it cannot be said that performance has become impossible merely because the grantee has left the premises, or left the state, if proper provision has been made for carrying on his duty to the grantor by the hands of other persons,112 or even because the grantee is dead, and that duty has descended upon his minor children.113

111

If a contract by one person to support another during his life is a continuing contract, it is also entire in its character, and a complete breach will justify rescission or cancellation. The grantee must offer the stipulated support and not wait to be asked for it,114 and the grantor, when the contract has once been definitely broken, is neither obliged to renew it by making subsequent demands, nor to accept support afterwards tendered.115 When suit has been begun for the cancellation of the deed, it is too late to offer to render the agreed support and maintenance and to give security for the performance of the obligation.118

Finally, it is to be observed that an arrangement of this kind may always be rescinded by the mutual agreement of the parties to it,117 and that the grantor may be regarded as having rescinded, so as to release the grantee from further obligations, if, without any sufficient reason, he rejects the proffered support and betakes himself elsewhere,118 or if, having sufficient cause of complaint, he elects to fall back upon his remedy at law, and seeks and obtains a judgment for damages against the grantee.119

110 Johnson v. Johnson (Ky.) 125 S. W. 1097.

111 Glocke v. Glocke, 113 Wis. 303, 89 N. W. 118, 57 L. R. A. 458. 112 Davis v. Davis, 135 Ga. 116, 69 S. E. 172; McKenzie v. Dunsmoor, 114 Minn. 477, 131 N. W. 632.

113 Stebbins v. Petty, 209 Ill. 291, 70 N. E. 673, 101 Am. St. Rep. 243.

114 Barnes v. Barnes, 20 D. C. (9 Mackey) 479.

115 Amos v. Oakley, 131 Mass. 413; Parker v. Russell, 133 Mass. 74. 116 Fabrice v. Von Der Brelie, 190 Ill. 460, 60 N. E. 835.

117 McDowell v. McDowell, 24 Ky. Law Rep. 2270, 73 S. W. 1022. 118 Conner v. Marshall, 11 Heisk. (Tenn.) 706.

119 Rowe v. Rowe, 5 Ill. App. 331.