McSwean v. McSwean

• Decision Date: 21 October 1920
• Docket Number: 4 Div. 889
• Citation: 204 Ala. 663,86 So. 646
• Parties: McSWEAN v. McSWEAN.
• Court: Alabama Supreme Court

86 So. 646

204 Ala. 663

McSWEAN v. McSWEAN.

4 Div. 889

Supreme Court of Alabama

October 21, 1920

Rehearing Denied Nov. 18, 1920

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Bill by Elizabeth McSwean against R.L. McSwean to declare null and void a conveyance executed by her because of a failure to observe a condition subsequent. Decree for respondent, and complainant appeals. Affirmed.

H.L Martin, of Ozark, for appellant.

Riley &amp Stokes and Sollie & Sollie, all of Ozark, for appellee.

THOMAS J.

This bill was for the cancellation of a deed containing a condition subsequent, the nonobservance of which resulted in a forfeiture of estate at the election of the grantor. First Nat. Bank v. McIntosh, 79 So. 121 L.R.A.1918F, 353.

The pertinent conditions of the instant conveyance exhibited with the bill are:

"*** For and in consideration of $5.00 to me in hand paid by R.L. McSwean, the receipt whereof is hereby acknowledged, and, in consideration further that the said R.L. McSwean has heretofore rendered in valuable services in taking care of, supporting, clothing, maintaining and making me comfortable, and, in consideration also of the conditions of this deed of conveyance hereinafter expressed," grants, etc.

And--

"It is hereby agreed and understood that as a part of the consideration of this deed of conveyance the said R.L. McSwean is to take care of, support, clothe, maintain and do whatever else may be necessary to make me reasonably comfortable during my lifetime, and it is further agreed and understood that the absolute title to the said lands shall not pass unto the said R.L. McSwean until my death, but the said R.L. McSwean is to have possession and control of the said land during my lifetime, to cultivate, rent or lease the said lands and to keep the same under good repair, and the income therefrom, or so much as may be necessary is to be used in assisting him in taking care of, supporting, clothing, maintaining and keeping me reasonably comfortable during my lifetime, as above named and, at my death, the absolute title to the said land shall pass into the said R.L. McSwean, provided, only that the conditions herein expressed are faithfully carried out; If the said R.L. McSwean should neglect, fail or refuse to take care of, support, clothe, maintain and keep me reasonably comfortable, as above named, this deed of conveyance shall become null and void, and the title to the said lands revert back to me, on the condition that I pay the R.L. McSwean a reasonable amount for taking care of, supporting, clothing, maintaining and making me reasonably comfortable, as above named, the said amount of the reasonable value of his services to be ascertained with 8 per cent. interest thereon, less the net amount received by him as an income from the said lands up to the time his services named ceased to be rendered; and it is further understood and agreed that: Should I depart without having this deed of conveyance declared null and void by a proper proceeding in court, or otherwise, this shall be conclusive that the said R.L. McSwean has faithfully carried out the condition of this deed of conveyance which shall not be questioned by any person except myself during my lifetime, but this deed of conveyance shall be absolute to the said R.L. McSwean and shall not be declared null and void for any other cause except that the said R.L. McSwean shall fail or refuse to carry out the conditions herein named, the said R.L. McSwean in consideration of this deed of conveyance is to pay the taxes on the said lands from this date. ***"

What then is the meaning of the condition "to take care of, support, clothe, maintain and do whatever else may be necessary to make me reasonably comfortable during" the grantor's life? The expressions "take care of," "support," "clothe" and "maintain" are used in their ordinary acceptation as applicable to the condition, degree, and circumstances in life of the parties. The immediately succeeding clause, "whatever else may be necessary to make me reasonably comfortable during" grantor's life, under the ejusdem generis rule, will apply only to things or objects of the same general nature or classes enumerated. State v. W.U. Tel. Co., 196 Ala. 570, 72 So. 99. Such is the analogy of Eskridge v. Ditmars, 51 Ala. 245, where, with respect to "articles of comfort" in the husband's "support of the household," it was held that "comfort" was synonymous with "maintenance" and embraced food, raiment, suitable habitation, medicines, and medical and surgical assistance.

It may be well to say that the provision in the conveyance, "it is further agreed and understood that should I depart [this life] without having this deed of conveyance declared null and void by a proper proceeding in court or otherwise, this shall be conclusive that the said R.L. McSwean has faithfully carried out the condition of this deed of conveyance," was not the creation of a tenancy at will. Without a forfeiture of the other conditions of the conveyance, the conveyance may not be declared null and void. The...