Frasher v. Frasher, 14129

• Decision Date: 05 December 1978
• Docket Number: No. 14129,14129
• Citation: 249 S.E.2d 513,162 W.Va. 338
• Parties: Galley FRASHER et al. v. Barey FRASHER et al.
• Court: West Virginia Supreme Court

Page 513

249 S.E.2d 513

162 W.Va. 338

Galley FRASHER et al. v. Barey FRASHER et al.

No. 14129.

Supreme Court of Appeals of West Virginia.

Dec. 5, 1978.

Syllabus by the Court

1. Where equitable relief is sought by way of rescission of a deed for support because of an alleged failure of consideration by the grantee resulting from the grantee's neglect in supporting the grantor, proof of a formal written agreement to support is not required.

2. Courts, in suits for rescission of a deed for failure of consideration, will look behind the recited consideration where support is claimed as the true consideration for the deed.

3. "Where an aged grantor, by deed, has conveyed property in consideration of an agreement for his maintenance and support, and discord arises between the parties, the grantor is entitled to the benefit of all reasonable doubt, and the property should be restored to him if it can be done without injustice to the grantee." Syllabus, Chambers v. Roper, 119 W.Va. 338, 193 S.E. 570 (1937).

4. "The findings of fact of a trial court are entitled to peculiar weight upon appeal and will not be reversed unless they are plainly wrong." Syllabus Point 6, Mahoney v. Walter, W.Va., 205 S.E.2d 692 (1974).

Paul A. Ryker, Huntington, for appellants.

Kenneth H. Fisher, Huntington, for appellees.

MILLER, Justice:

Barey Frasher and his wife, Cloie, appeal an order which cancelled a deed given them by their grandfather, Galley Frasher, citing two principal grounds of error. First, that the lower court erred in finding there was a total failure of consideration for the deed when Barey and his wife refused to continue to support the grantors, Galley Frasher and his wife. In this connection, they claim that the obligation to support was by virtue of an oral agreement which was barred by the Statute of Frauds, W.Va.Code, 55-1-1(f). ¹ Second, they assert that the conduct of grantor Galley Frasher prevented them from performing their support obligation. We affirm the lower court.

The events leading to this litigation are that the grantors, Galley Frasher and his wife, were in their middle seventies and in poor health. They lived in Wayne County in a home on 3.8 acres of land, which was their only substantial asset.

During early March, 1974, Galley Frasher was hospitalized for surgery, and apparently there was some doubt about the prospects for his recovery. At that time, Barey and Cloie, along with their children, moved into the grantors' home to care for Galley's wife. The grantees assumed part of the grocery and utility expenses and assisted with the domestic tasks of cleaning, washing and cooking. After the grantor was released from the hospital, he and his grandson had numerous conversations about the transfer of the house and property. The services of an attorney were sought.

In a meeting at the grantors' home, the attorney was instructed to prepare a deed conveying a remainder interest in the real estate to grantors' grandson Barey and his wife, while reserving a life estate therein to the grantors. No other conditions or restrictive covenants were included in the document. The deed was prepared and subsequently executed on March 26, 1974.

At trial the attorney and several witnesses testified that there were prior discussions between the parties as to the grantees supporting the grantors. It is not disputed that no money was paid for the deed, which recited the value of the property to be $15,500.

Grantees lived on the property, sharing expenses and domestic tasks with grantors until November, 1974. At that time, the grantees left the property and temporarily resided at a cousin's home. The accounts of the parties differ as to what precipitated grantees' departure. Grantee Cloie Frasher testified that there were several incidents between March and November, 1974, in which Galley Frasher made improper advances or physically touched her. She further testified that the last such incident provoked an argument and resulted in her relating the incident to his wife.

After being away from the Frasher property about a week, grantees and their children returned, but the parties were unable to live in harmony. The final incident was triggered by an argument over utility bills. The primary protagonists were Galley Frasher and his granddaughter-in-law. He accused her of calling him a liar and threatened to strike her, but she shoved him away. He threw a coffee cup at her, but missed, and then went to his bedroom and obtained his shotgun. She seized a butcher knife, which her husband took away from her. The grantor brandished the shotgun at her, but his grandson was able to take it away from him. The grantees then obtained a warrant against Galley Frasher for brandishing a deadly weapon, but dropped the charge a few days later after grantees and their children had moved out of the home.

In February of 1975 this suit was filed by Galley Frasher and his wife. The latter died during the pendency of this action.

I

The theory of this suit is that the deed transferring a remainder interest in the real estate was based on the consideration that the grantees would support the grantors for their respective lives. The complaint alleged that the grantees moved off the property and failed to support the grantors, and cancellation of the deed was sought.

The grantees contend the deed contained no express language showing it was given in consideration of their obligation to support the grantors. They further contend that there was no written support agreement and, consequently, proof of an oral support agreement would not suffice, as it was an obligation that could not be performed within one year, and would thus be barred by our Statute of Frauds, W.Va.Code, 55-1-1(f).

An examination of our law in the area of a deed given in return for support of the grantor demonstrates that it is difficult to formulate many general rules, simply because the cases turn on their particular facts or the specific language of the deed or underlying support agreement.

It may be stated that where equitable relief is sought by way of rescission of a deed for support because of an alleged failure of consideration by the grantee resulting from the grantee's neglect in supporting the grantor, this Court has not required proof of a formal written agreement of support. We have permitted the grantor to show the true nature of the consideration as the obligation to support, even though there is a recited monetary consideration in the deed. Our most analogous case is Wilfong v. Johnson, 41 W.Va. 283, 23 S.E. 730 (1895), where the deed was absolute on its face and recited a consideration of $50.00. The Court permitted parol proof of the support obligation to show that there had been a total failure of consideration:

"The deed upon its face does not express the contract. It was not intended actually or from anything apparent on its face to do so. It is a thing done, rather than a thing said; and the oral agreement is not at all inconsistent with the deed, or contradictory of anything recited therein. It is the true consideration for making the deed, in addition to the formal money consideration therein recited; and nothing in it shows that it was meant to contain the whole bargain between the parties, But it was the execution on the part of the plaintiff of her part of the contract. See Green v. Batson, 71 Wis. 54, 36 N.W. 849; Id. 5 Am.St.Rep. 194, notes; Browne, Par. Ev. p. 125, § 50; Lindley v. Lacey, 17 C.B. (N.S.) 578; 1 Greenl.Ev. § 284a; Thomas v. Scutt, 127 N.Y. (133) 138, 27 N.E. 961." (Emphasis added) (41 W.Va. at 286, 23 S.E. at 731)

The emphasized portion from Wilfong suggests an answer to the Statute of Frauds argument, which is that the grantor's complete performance of his portion of the oral contract for support, by delivery of the deed, overcomes the defense of the Statute. We have followed the general rule that where one party fully performs on an agreement that would otherwise be barred by the Statute of Frauds, he is entitled to sue the other party for performance. Stump v. Harold, 125 W.Va. 254, 23 S.E.2d 656 (1942); Chitwood v. Collins, 122 W.Va. 267, 8 S.E.2d 830 (1940); Wilson v. Starbuck, 116 W.Va. 554, 556-57, 182 S.E. 539, 540, 102 A.L.R. 485, 487 (1935); Smith v. Black, 100 W.Va. 433, 130 S.E. 657 (1925); A. Corbin, Contracts §§ 457, 458 (1950); Restatement of Contracts §§ 178, 198 (1932); Annot., 6 A.L.R.2d 1053, 1111.

The important point here is that the grantors, as in most support deed cases, do not seek to have the support obligation enforced. Rather, they wish to have the deed rescinded or cancelled because they find the personal services and living conditions unworkable or nonexistent. Consequently the issue is not whether the oral support obligation should be enforced, but whether it formed the primary consideration for giving the deed, so that there is a failure of consideration for the deed. It was upon this theory that Wilfong and most of our other support deed cases relied. Fox v. Starbuck, 117 W.Va. 736, 188 S.E. 116 (1936); Marcum v. Marcum, 94 W.Va. 686, 120 S.E. 73 (1923); White v. Bailey, 65 W.Va. 573, 64 S.E. 1019 (1909); Goldsmith v. Goldsmith, 46 W.Va. 426, 33 S.E. 266 (1899).

Since rescission or cancellation of a deed is an equitable remedy, failure of consideration need not be the only basis on which relief may be granted. Other grounds, such as hardship, undue influence or fraud, may be available, as noted in 26 C.J.S. Deeds § 21b:

"The courts consider each case on its own facts and in the exercise of their broad equitable powers will grant whatever relief will most nearly work out substantial justice. Cancellation or rescission may be granted in such cases, on equitable terms, notwithstanding part of the consideration for the deed was cash paid. The reasons assigned for the granting of such relief are various. Thus, such relief has been said to be justified on the ground of failure of...