Lowman v. Crawford

• Decision Date: 21 November 1901
• Citation: 40 S.E. 17,99 Va. 688
• Parties: LOWMAN v. CRAWFORD et al.
• Court: Virginia Supreme Court

40 S.E. 17

99 Va. 688

LOWMAN

v.CRAWFORD et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1901.)

DEED — CONSTRUCTION — CONSIDERATION — SUPPORT OF GRANTOR—CONDITION SUBSEQUENT—REVOCATION—EQUITY.

1 A deed to land contained a provision that the grantee should remain with the grantor, his aunt, and take care of her, so long as she lived. The right of possession during life was retained, and the right of revocation on failure of the grantee to comply with such provision. Held, that the deed did not convey an estate on condition subsequent, but that the provision was a covenant on the part of the grantee to render the services mentioned in consideration of the conveyance.

2. A bill to revoke a deed, the consideration of which was that grantee should remain with grantor and take care of her during life, alleging that the grantee had long since deserted complainant, and utterly failed to take care of her, is cognizable in equity, there being no remedy at law.

Appeal from circuit court, Augusta county.

Bill by Mary E. Johnston and one Crawford, her trustee, against John H. Lowman, to cancel a deed. Decree for complainants, and defendant appeals. Affirmed.

Curry & Glenn, for appellant

Patrick & Gordon, for appellees.

HARRISON, J. By deed dated July 26, 1898, Mary E. Johnston conveyed to her nephew, John H. Lowman, a tract of land in Augusta county, upon which she resided, containing 108 acres, 2 roods, and 23 poles, together with certain personal property therein mentioned. The consideration for this conveyance, expressed on the face of the deed, is as follows: "That for and in consideration of the love and affection the said Mary E. Johnston has for the said John H. Lowman, his remaining with her, the said Mary E. Johnston, the taking care of her so long as she may live, in sickness as well as in health, the payment of all her just debts that may be unpaid at her decease, and the further consideration of one dollar cash in hand paid, the receipt of which is hereby acknowledged." The deed contains the following clauses, called "exceptions":

"Exception No. 1. This deed is made to go upon record that the said Mary E. Johnston may feel assured that her property will be disposed of as she wishes; but possession shall not be relinquished by her, the said Mary E. Johnston, during her life. At her. the said Mary E. Johnston's, decease, the said John H. Lowman shall have full and complete possession of the land hereby conveyed, as well as all the personal property enumerated above.

"Exception No. 2. In the event the said John H. Lowman shall die before the said Mary E. Johnston, and not be able to comply with that part of the consideration above, viz. 'his remaining with her and taking care of her so long as she may live, etc., ' she, the said Mary E. Johnston, reserves the right to revoke this deed by making another deed. But, unless revoked by the said Mary E. Johnston in a legal manner, this deed shall remain in full force, even though the said John H. Lowman die before the said Mary E. Johnston."

The bill in this case, which is filed by Mary E. Johnston and her trustee, after setting forth her title and the execution of the foregoing deed, charges that the consideration that John H. Lowman should remain with the complainant and take care of her so long as she may live, in sickness as well as in health, has wholly failed; that said John H. Lowman has long since deserted complainant, and has failed, and still utterly fails, to take care of her in either sickness or health; and that the treatment of complainant by said John H. Lowman warrants the revocation and cancellation of the deed and the restoration of complainant to all of her rights as they existed prior to the execution of the same.

The defendant John H. Lowman, filed a demurrer and answer to the bill, in which he alleges that prior to the execution of the deed in question he was living with his aunt, the complainant, as a farm hand, with the understanding that she would pay him at the rate of $10 per month, board him. keep his horse, and do his washing, ironing, and mending; that after the execution of the deed he took full management of everything, with the understanding that he should have his living out of the farm as a member of the family so long as his aunt lived, estimated at the rate of wages she was theretofore paying him; that the deed was made without any inducement or solicitation on his part and accepted by him with the purpose of living up to its requirements; that soon after the execution of the deed he married, with his aunt's approbation and consent, and took his wife to live with him at his aunt's house. Respondent admits thathe afterwards left his aunt's home and employment, out insists that this course was forced upon him in order to get rid of the unwarranted abuse heaped upon himself and wife by his aunt; that he made every effort to conciliate her and return, but that she forbade his return to her premises.

The decree appealed from overruled the demurrer, and held, in accordance with the...