Anderson v. Gaines

• Decision Date: 12 June 1900
• Citation: 156 Mo. 664,57 S.W. 726
• Parties: ANDERSON et ux. v. GAINES.
• Court: Missouri Supreme Court

57 S.W. 726

156 Mo. 664

ANDERSON et ux. v. GAINES.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

ACTION — CONSOLIDATION — DEED — CANCELLATION — PLEADING — CONSIDERATION — FINDINGS.

1. A suit in equity by grantors to cancel their deed for the grantee's breach of his promise to support them, and a suit at law by the grantee against one of the grantors to recover damages for excluding him from the premises in violation of the deed, cannot be consolidated under Rev. St. 1889, § 2189 (Rev. St. 1899, § 749), authorizing consolidation of suits founded on liquidated demands pending between the same parties.

2. A petition in equity to cancel a general warranty deed which merely alleges that plaintiffs executed it in consideration of defendant's promise to support them during their lives, and that he has failed to keep his covenant, and is insolvent, without any charge of fraud or undue influence on the part of defendant to obtain the deed, or any allegations showing whether the performance of the promise was a condition precedent or a condition subsequent, is demurrable.

3. It is bad pleading to set out in hæc verba in the petition the deed or contract on which the suit is forwarded. Such should be pleaded by its legal effect.

4. The promise of an insolvent grantee to support his grantors during their lives is a sufficient consideration for a deed.

5. Where a deed is given in consideration of the grantee's promise to support the grantors during their lives, the title vests, and is not held in abeyance until the performance of the promise nor devested by a breach thereof.

6. A finding in an action to cancel a deed for defendant's breach of his promise to support the plaintiffs "that defendant has attempted in good faith to carry out the contract, but, owing to the conditions that exist [which are not stated], it is impracticable for the said contract to be carried out as intended, and that it ought to be set aside," is insufficient to support a decree allowing defendant damages alleged to have been sustained in attempting to carry out the contract, and declaring the same a lien on the land.

Appeal from circuit court, Dent county; L. B. Woodside, Judge.

Bill by Charles Anderson and wife against W. N. Gaines. From a decree for defendant, he appeals. Reversed.

Suit in equity to set aside a deed. The petition states substantially that in February, 1897, the plaintiffs, husband and wife, made a deed conveying certain land in Dent county and all the personal property owned by them to defendant; "that the whole consideration, as expressed and agreed upon by plaintiffs and defendant," was that defendant should support and maintain the plaintiffs during their lives; that defendant has failed and refused to do as he agreed; that he is insolvent, and unable to respond in damages for the breach of his agreement; that plaintiffs are old and helpless, and without other means of support. The prayer of the petition is that the deed be canceled, and the title revested in plaintiffs. Defendant demurred to the petition, but the demurrer was overruled, and he answered, in effect admitting the execution of the deed, and denying all the other allegations of the petition. About the same time this suit was begun, — in fact, four days before, — the defendant, Gaines, filed a suit against the plaintiff Charles Anderson, based on the deed above mentioned, and complaining that upon the faith of the deed he had got married, as it was understood he was to do, and that he and his wife moved on and took possession of the premises and the personal property, and began to perform his agreement to take care of the plaintiffs, but that the latter, without lawful reason, drove him and his wife off the premises, took everything from them, and refused to live with them, or allow them to return to the place, to his damage $1,000, for which he prayed judgment. Charles Anderson answered, denying the allegations of that petition. There is a statement in the appellant's abstract to the effect that the court of its own motion consolidated the two suits, but, if there was any such order, it is not shown in the abstract. The final decree in the case is as follows: "Now, this day come the plaintiff and defendant, and announce themselves ready for trial, and, the cause being tried before the court, and the court, having heard the evidence, finds that the defendant, W. N. Gaines, has attempted in good faith to carry out the contract on his part, and has not refused to execute the same, but that, owing to the conditions that exist, it is impracticable for the said contract to be carried out and executed as intended by the parties to the same, and that said contract, in equity and justice, ought to be set aside and annulled. But that said defendant ought to have and recover all damages sustained by him in attempting to carry out said contract. It is therefore considered and adjudged by the court that the said contract and deed made thereunder be set aside and for naught held, and that defendant have and recover of and from the plaintiff Charles Anderson the sum of $300 (three hundred dollars) damages sustained by him, together with the costs in this action, which is declared to be a lien and charge on the land, to wit, the southeast quarter of the southwest quarter, and the north half of the southwest quarter, of section sixteen (16) township thirty-three (33) north, range six (6) west, and that special execution issue therefor." There are in the abstract what purport to be motions for a new trial and in arrest of judgment by defendant, Gaines, and recitals that they were overruled, but there is no bill of exceptions in the case. The record shows an appeal by defendant properly taken. In this condition of the record we have nothing to consider but the pleadings, the...