Sutton v. Sutton

• Decision Date: 01 December 1919
• Docket Number: 31
• Parties: SUTTON v. SUTTON
• Court: Arkansas Supreme Court

216 S.W. 1052

141 Ark. 93

SUTTON v. SUTTON

No. 31

Supreme Court of Arkansas

December 1, 1919

Appeal from Pike Chancery Court; James D. Shaver, Chancellor affirmed.

Decree affirmed.

O. A Featherston and Pinnix & Pinnix, for appellants.

1. The chancellor misconceived the grounds upon which relief was sought, as shown in his opinion, even if the writing was a deed the grantee takes upon a condition subsequent and upon breach the grantor is entitled to declare a forfeiture. 91 Ark. 407. The remedy at law in cases like this is inadequate and resort is properly in chancery. There was error in the first place in assuming that this was a suit to defeat the deed. The conveyance was valid and if the grantee had performed his undertaking it would be upheld now. 125 Ark 441 is not in point. 71 Ark. 494; 99 Id. 350. The recital of a consideration in a deed is only prima facie evidence and parol evidence is admissible to contradict it. 15 Ark. 275; 82 Id. 492; 66 Id. 645; 123 Id. 532; 90 Id. 287; 101 Id. 603; 130 Id. 167.

The statement of the amount of the consideration in a deed and the acknowledgment of its payment is no more than a receipt and it is only prima facie evidence of what it states, but not conclusive except that there was some consideration, but such a recited consideration is not contractual and works no estoppel as to amount or character and the time consideration may be shown by parol evidence. 96 Ind. 398; 66 S.W. 15; 71 Id. 444; 57 A. 46; 207 Penn. 620; 44 S.E. 405; 56 S.C. 252; 46 S.E. 553; 97 N.W. 497; 7 Ky. Law Rep. 441; 80 N.W. 339; 84 Id. 339; 66 S.W. 15; 35 N.W. 817; 89 Va. 895; 17 S.E. 558; 21 L. R. A. 133; 37 Am. St. 894; 81 N.W. 645; 99 Id. 128; 105 Am. St. 1039; 7 Ky. Law Rep. 441; 8 Id. 640; 2 S.W. 546; 25 L. R. A. (N. S.) 1197; 42 S.E. 279; 110 N.W. 232. See also 134 Ill.App. 418; 47 Tex. Civ. App. 619; 115 S.W. 830; 118 Id. 842. Evidence is admissible to show an agreement to support the grantor in addition to the consideration recited in the deed. 20 Am. Dec. 356; 7 Me. 175; 55 Iowa 759; 19 Ind. 40; 32 Pa. 18; 54 Am. Dec. 198. See also 28 N.C. 121; 108 Ark. 130; 116 Id. 162; 126 Id. 595, 591; 237 Ill. 620; 127 Am. St. 345; 176 Ill. 83; 152 Id. 471. Equity will set aside the deed if there is a failure to furnish the support as called for as the consideration. 93 N.E. 324; 40 S.E. 17.

Abandonment by defendants of their contract to support the grantor for life entitles the grantor to cancellation. 23 Okla. 806; 138 Am. St. 856. See also 75 N.W. 156, etc. See also 2 Washb. Real Prop. 7; 57 L. R. A. 458; 57 N.W. 787; 13 Oh. St. 49; 4 R. C. L. 509; 134 Ark. 91; 86 Id. 251; 127 Id. 186; 134 Id. 91; 30 N.M. 202.

2. The undertaking of the grantee was a personal one and could not be enforced against his heirs. Upon his death the grantors were clearly entitled to a rescission. 4 N.W. 775; 71 P. 546; 135 Ky. 405. Mere delay for a long time in asserting a cause of action in equity, working no injury or prejudice, bars relief only on the presumption of abandonment, which may be overturned by proof to the contrary. 23 L. R. A. (N. S.) 232. Laches is not mere delay, but delay working to another's disadvantage which may come from the loss of evidence, change of title, intervention of equities and other causes. 103 Ark. 25; 114 Id. 359; 121 Id. 423. Laches and estoppel have no application in this case. 114 Ark. 90; 5 Pom. Eq. Jur., § 33; 142 U.S. 417; 85 F. 517; 71 Id. 618; 91 Id. 191; 42 Id. 42; 42 U.S. App. 42; 26 S.W. 705; 87 Id. 126. See also 67 Ark. 526.

3. It was not necessary to allege fraud or mistake as to the consideration at the time of the procurement of the deed. If this court adheres to the Illinois doctrine that a failure to support raises a presumption of fraud ab initio, an allegation of entire failure to support justifies the court in making this inference. It is not necessary to plead legal conclusions or presumptions. 14 Ark. 304. Here it is alleged that during his lifetime the grantee failed to provide for the grantor's support and the presumption of fraud arises in the inception of the grant. If the Wisconsin rule is followed the rights of the parties would depend upon the breach and not upon fraud in procuring the deed. Plaintiffs are entitled to recover, no matter which theory is adopted. 176 Ill. 83; 16 Id. 48; 59 Id. 46; 72 Id. 449; 101 Am. St. 243. The intervention of equity is sanctioned in this State on the theory that neglect or refusal to comply with the contract to support raises a presumption that the grantee did not intend to comply with it in the first instance and that the contract was fraudulent in its inception and equity will relieve. 16 Ill. 48; 59 Id. 46; 72 Id. 449; 32 N.E. 267; 39 Id. 267; 51 Id. 559; 60 Id. 835.

4. Equity will not permit one to enjoy the fruits of a contract and refuse to perform its obligations. 87 N.E. 388; 47 N.W. 768; 138 Am. St. 1054. Equity will rescind conveyances by parents to children on breach of condition to support. 152 Ill. 471; 39 N.E. 267; 176 Ill. 83; 51 N.E. 559; 60 Id. 835; Ib. 835; 127 Am. St. 345; 22 N.C. 241; 23 S.E. 730; 33 Id. 266; 16 Ill. 48; 59 Id. 46; 39 N.E. 267; 127 Am. St. 118; 18 L. R. A. (N. S.) 1147; 12 N.W. 74; 53 S.W. 294; 83 Am. Dec. 527; 59 N.W. 837; 13 Oh. St. 49; 53 Id. 649; 130 Id. 1054.

Where a grantor conveys his property in consideration of care and support, etc., the consideration can not be measured by dollars and cents and equity will grant relief by decreeing reconveyance. See 113 Wis. 303; 57 L. R. A. 458; 75 N.W. 156.

In the cases below the agreement is treated as a condition subsequent. See 51 A. 854; 64 S.E. 1081 and the Illinois cases cited supra; 29 Ind.App. 277; 71 Ind. 434; 89 Id. 29; 37 N.E. 787; 82 S.W. 1009; 58 Me. 73; 64 Id. 97; 69 Id. 293; 93 Am. Dec. 75; 70 N.E. 49; 95 N.W. 740; 112 Id. 217; 22 Mo. 369; 25 S.W. 201; 57 Id. 726; 75 Am. Dec. 163; 77 Id. 700; 39 Barb. 79; 28 S.E. 513; 47 Id. 415; 53 Id. 616; 103 N.W. 644; 109 S.W. 1142; 64 S.E. 1019; 14 L. R. A. (N. S. ) 1187. Courts of equity go to great lengths to remedy the mischief by rescission or other relief where justice requires it. 41 Wis. 209; 134 Ark. 91. See also 28 L. R. A. (N. S.) 918; Ib. 608; 12 Ann. Cases 898; 57 L. R. A. 458.

5. If the instrument is construed to be testamentary to take effect after death, see 1 Jarman on Wills, 26 and notes; 28 Am. St. 495; 26 Id. 86; 51 Pa. 126; 85 Id. 495; 1 Jarman on Wills, p. 12; Redfield on Wills, p. 5. The form of the instrument is immaterial if testamentary in its substance. 103 Pa. 600; 71 Id. 458; 80 Id. 170; 98 Id. 159; 30 Id. 225; 62 Iowa 314; 66 Ga. 317; 62 Miss. 636; 54 Tex. 72; 38 Am. Rep. 620; 66 S.W. 636.

6. An instrument to be good as a deed must pass a present interest in the property and where it takes effect only on the death of the grantor it is testamentary and insufficient as a deed. Cases supra. 68 Mo. 584; 1 Devlin Deeds, par. 309; 76 N.W. 411; 51 Pa. 126; 17 N.W. 522; 15 S.E. 367; 41 P. 1080; 50 Am. St. 43; 61 N.W. 673; 26 Am. St. 86; 17 Am. Dec. 699; 50 N.Y. 88; 62 Miss. 366. 50 Ark. 374 is quite different from this and does not apply. See also 75 N.E. 297; 82 Ky. 379; 34 Am. St. 164; 66 S.W. 1023; 121 Id. 973; 24 L. R. A. (N. S.) 514; Ann. Cases 1913 B, 147. The habendum clause may be rejected only where there is a clear and irreconcilable repugnance to the granting clause. 78 Ark. 230; 8 Ann. Cases 443; 94 Ark. 615, and the habendum clause controls, as it is the last expression of the grantor. 34 Am. St. 162; 19 S.W. 9; Ann. Cas. B 1917, etc.

W. S. Coblentz, for appellees.

1. While the authorities cited by the chancellor hold that the consideration itself must have been inserted by mistake or fraud, yet see 125 Ark. 447; 71 Id. 494; 99 Id. 350. There is no allegation that the very consideration the grantor intended was not inserted, nor that there was either fraud or mistake on the part of any one. 103 Ark. 251; 114 Id. 359; 121 Id. 423. The complaint should have accounted for and explained the laches after nine years and death of grantor. 17 Enc. Proc. 431-2.

2. Appellant's claims were thus barred by laches. 10 R. C. L. 400; 69 A. 488; 57 Fla. 423; 124 S.W. 7; 253 Ill. 147; 145 Id. 162; 16 Cyc. 164-5; 142 S.W. 156; 101 Id. 230; 83 Id. 385; 95 Id. 179; 112 Id. 522; 131 Id. 103; 50 Id. 374; 96 Id. 589. The lower court properly sustained the demurrer.

OPINION

HUMPHREYS, J.

This suit was instituted on the 18th day of April, 1919, in the Pike Chancery Court, by appellants against appellees, to cancel an instrument of record, purporting to be a deed from appellants to James N. Sutton, because (1) the consideration failed, and (2) the instrument constituted a testamentary disposition of their property, revocable at their will. In substance it was alleged in the bill that appellants' son, James N. Sutton, the deceased husband of Etta A. Sutton and father of the other appellees, in his lifetime procured a deed for record from appellants, purporting to convey sixty acres of land in said county, the separate property of appellant Sarah A. Sutton, which had been, and was still occupied by appellants as their homestead, in consideration of a verbal promise that he would care for and support appellants; that the said James N. Sutton, in his lifetime and his widow and heirs after his death, failed to render them either care or support; that the consideration expressed in the granting clause of the instrument was as follows: "For and in consideration of divers covenants of value, and the further sum of two hundred ($ 200) dollars, to us in hand paid, the receipt of which is hereby acknowledged and confessed, and relying on the fidelity and integrity of James N. Sutton, their only son, do hereby grant, bargain, sell and convey unto the said James N. Sutton, and unto...