GIVEN
J. GRANGER, J., not sitting.
OPINION
GIVEN, J.
I.
While
the motion is addressed to only eighteen of the twenty
paragraphs of the petition, it is equivalent to a motion to
strike the entire petition, and, as stated by counsel,
presents two questions, namely: "The first is, can the
plaintiff prove by parol evidence the matter and things
alleged in his petition, against the objection that such
evidence contradicts, changes, or adds to the terms of the
written contract between the parties, as expressed in Exhibit
A (being the deed from plaintiff to defendant)? And, second,
do the matters stated in plaintiff's petition constitute
a cause of action, or entitle him to any relief?"
The
petition is quite lengthy, but the material allegations are
in substance, as follows: It shows that the plaintiff was the
owner of a two hundred and eighty-acre farm in Monroe county
worth eleven thousand dollars, and live stock thereon worth
five thousand dollars, and farm implements worth five hundred
dollars, and that he resided on this farm for twenty-one
years last past. He was a widower (his wife
having been dead about fifteen years), and had four children,
including the defendant, all of whom were married and living
by themselves, excepting the defendant, who, with his family,
resided with the plaintiff on said farm. The plaintiff, being
aged seventy-eight years, and feeble, desiring to provide a
pleasant and permanent home for himself on said farm, and to
provide for a division of his property at his death among his
children, entered into a verbal agreement with the defendant
as follows: "First, that petitioner would, in
consideration of said sum of $ 1,800 which he owed the
defendant, and in further consideration of the promises and
agreements of the said defendant as hereinafter mentioned,
convey his said farm to the said defendant on the following
terms and conditions, to wit: (1) That the petitioner was to
reserve and remain in the possession and exclusive control of
his said farm, and the profits and income arising therefrom,
so long as he should live, and have the exclusive right to
receive and disburse such profits as hereinafter provided.
(2) That plaintiff's said stock and farm implements were
to be kept and used on said farm and farming business, and
that all parts and portions thereof remaining at the time of
plaintiff's death should pass to, and become the property
of, defendant. (3) That the defendant and his family should
live on said farm and keep house for the plaintiff, and cook
and wash for him, take care of him in sickness, and do all
they reasonably could to render him comfortable. (4) That
defendant would, at his own expense, and by his own labor and
such other labor as he might furnish, cultivate said farm,
and carry on said farming and stock business, keep and feed
said stock, and from time to time sell and dispose of
portions of the same as directed by the plaintiff. (5) That
the profits arising from said farming business, and the
income from said farm over and above what might be required
for the support and maintenance of the petitioner and
defendant and his family, should be paid to the other
children of petitioner, until they should each
be paid the sum of two thousand dollars ($ 2,000), and that
the sums thus set aside to each of said children should be
made a lien on said farm." Plaintiff
alleges that soon thereafter they applied to an attorney to
reduce their agreement to writing, and were advised that as
part of their agreement related to real estate, and part to
personal property, it would be best to have two written
instruments; that thereupon plaintiff executed to defendant
the deed set out, conveying said farm, with the understanding
and agreement that they would at a future time execute a
writing, setting forth the other portions of their agreement.
The deed set out conveys said lands to the defendant
"for the consideration of two thousand dollars ($
2,000.00) and natural love and affection." Said deed
contains the following: "This conveyance is made subject
to the following conditions, stipulations, and reservations,
to wit: That I, Mathew McEnery, reserve the right to the
possession and control of the said property and of the
profits arising therefrom, for and during my natural life;
the said profits or income arising from said lands to be
applied to my support and maintenance during my natural life,
and to the support and maintenance of the said Wm. J. McEnery
and his family during my life, and to the payment to my son
Michael McEnery, or the heirs of his body, the sum of two
thousand dollars, and to my daughter, Ellen Hannan, or the
heirs of her body, the sum of two thousand dollars, and to my
son Chas. McEnery, or the heirs of his body, the sum of two
thousand dollars; the said respective sums of two thousand
dollars to be paid as I may direct; and said respective sums,
or any part thereof, remaining unpaid at my death to the said
children, or heirs of their bodies, as aforesaid, shall be
paid within twelve (12) years from date hereof by my son
William J. McEnery. Said payments shall be paid in equal
parts to each of the parties entitled thereto as aforesaid,
and the...
