Heartsill v. Thompson

• Decision Date: 20 January 1944
• Docket Number: 3 Div. 404.
• Citation: 245 Ala. 215,16 So.2d 507
• Parties: HEARTSILL et ux. v. THOMPSON.
• Court: Alabama Supreme Court

16 So.2d 507

245 Ala. 215

HEARTSILL et ux. v. THOMPSON.

3 Div. 404.

Supreme Court of Alabama

January 20, 1944

Calvin Poole, of Greenville, for appellants.

Powell & Hamilton, of Greenville, for appellee.

BOULDIN, Justice.

This appeal is from a decree overruling demurrers to a bill in equity as amended. The bill was filed under Title 20, § 15 of the Code, which reads: "Any conveyance of realty, of which a material part of the consideration is the agreement of the grantee to support the grantor during life, is void at the option of the grantor, except as to bona fide purchasers for value, lienees, and mortgagees without notice, if, during the life of the grantor he takes proceedings in equity to annul such conveyance."

Sam E Thompson filed the bill November 16, 1942, against J. Hiram Heartsill and Rebie Mae Heartsill, alleging in substance:

On January 2, 1940, complainant executed to respondents a deed to a parcel of lands, 35 acres, more or less, in Butler County, reserving a life estate in the grantor. The recited consideration in the granting clause of the deed was $1 "and the uniform kindness that has been extended me during my illness by J. Hiram Heartsill and his wife, Rebie Mae Heartsill, and the further agreement on the part of the said J. Hiram Heartsill and his wife, Rebie Mae Heartsill, to look after, care for and nurse me during the remainder of my life."

Following the habendum clause was this stipulation: "It is expressly understood that the grantor herein shall furnish his own food and clothing, but in all other particulars the grantees herein shall support, maintain, look after and care for the grantor during the remainder of his life."

The bill further averred: "that a material part of the consideration of said deed was the agreement of the grantees as hereinabove set forth to support this complainant during his life in the manner and as expressed in said deed."

A copy of the deed was made an exhibit to the bill.

The prayer for relief was: "That on the final hearing of this cause a decree be rendered annulling and setting aside as void said deed, a copy of which is hereto attached as Exhibit 'A'."

On July 19, 1943, on the suggestion of the death of complainant, and on motion, the court entered an order reviving the cause in the name of Minnie Thompson, executrix and sole legatee under the will of said Sam E. Thompson. Thereafter the bill was amended by adding: "Complainant further alleges that at the time of the execution of the deed from Sam E. Thompson to the respondents viz: the 2nd day of January, 1940, the said Sam E. Thompson was an old man passed 70 years of age. He was at that time a sufferer from arthritis and had become so enfeebled that he was unable to walk and was unable to feed himself. He was unable to dress or undress himself and was practically as helpless as a babe. The disease from which he was suffering caused him great suffering and had made such inroads upon his health as that he would probably remain an invalid, requiring constant care and attention during the remainder of his life.

"Because of the above stated condition of his health and in consideration of the agreement of the respondents to look after, care for and nurse him during the remainder of his life and to support and maintain him, the only stipulation on the part of the grantor being to furnish his own food and clothing, the said S. E. Thompson executed the deed, copy of which is attached as Exhibit 'A' to the original bill."

Questions raised by demurrer to the bill as amended, and here presented, are:

1. That the option or right of election given the grantor by the above-quoted statute is personal, to be exercised during his lifetime in the statutory manner; that the cause of action does not survive, and, therefore, the action was not subject to revivor under Equity Rule 35, Code 1940, Tit. 7 Appendix. This point was first raised by motion to vacate the order of revivor.

2. That the deed on its face, and under the averments of the bill, is not within the statute, supra.

3. That if within the statute, the bill is demurrable for want of an offer to do equity. This, because on its face, the deed discloses a part consideration was for past services rendered by the grantees, and the bill does not negative full performance on their part; and by reason of the reservation of a life estate, the grantees have received nothing, so far as appears from the bill.

The case presents questions of construction, and questions of procedure not heretofore considered by this court.

In Bush v. Greer, 235 Ala. 56, 177 So. 341, this court passing upon the constitutionality of the statute, dealt quite clearly with the origin, occasion for, and objective of the statute, saying:

"The grantees in such a conveyance, therefore, accept the same with the limitations of the statute written into it, and with full knowledge of the rights of the grantor, and the consequent defeasible character of the instrument.

"The argument that such a statute destroys the right of contract is but a challenge to the power of the Legislature to enact a statute of this character. But it needs no extended discussion to disclose that such a statute comes well within the police power and is a proper exercise thereof.

"The books abound with cases where the aged, weak, or afflicted had improvidently executed conveyances upon the promise of support. Johnson v. Chamblee, 202 Ala. 525, 81 So. 27; Russell v. Carver, 208 Ala. 219, 94 So. 128; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Hunter v. Watters, 226 Ala. 175, 145 So. 472; 18 Corpus Juris 169.

"Frequently there was injustice and fraud, but often this was difficult of proof, and the grantor led into the transaction by the tempting promise of food and shelter. The lawmakers considered this a growing evil, and the statute was passed as declaratory of a public policy, and well within the police power of the state."

That case recognizes that the statute is a restriction on the power to contract, striking out to a degree the terms of a contract as agreed upon by the parties, and writing into it other terms of which the parties are bound to take notice. Such a statute is to be construed rather strictly so as to confine its operation to legislative purpose, but not so narrowly as to defeat such purpose.

Dealing with the questions raised seriatim, we observe:

1. The question of revivor of the action begun by the grantor in his lifetime, turns on whether the cause of action survived. Equity Rule 35, Title 7, Appendix, page 1080 of Code. The survival of the cause of action turns on the subject matter and nature of the action. Given a conveyance of realty within the terms of the statute, it declares such conveyance "is void at the option of the grantor * * * if, during the life of the grantor he takes proceedings in equity to annul such conveyance." Such a deed does pass to the grantee the title therein specified, which may include a present right of possession.

But such title is defeasible; the deed is subject to rescission at...