Wynn v. Kendall
| Decision Date | 28 June 1920 |
| Docket Number | 21218 |
| Citation | 85 So. 85,122 Miss. 809 |
| Court | Mississippi Supreme Court |
| Parties | WYNN et al. v. KENDALL |
March 1920
1. CANCELLATION OF INSTRUMENTS. Deed will not be set aside because grantor did not understand it, in absence of timely application.
Where a deed given in consideration of the support of the grantor during life provides no lien, nor forfeiture on condition broken, or for failure to perform, but is absolute in form it will not be set aside, where no timely application was made, on the ground that the grantor did not understand the terms of the deed as written, where the deed was on record.
2 DEEDS. Deed for support of grantor not canceled for breach of agreement to support.
Where a deed is given in consideration of an agreement to support grantor, but containing no provision for forfeiture for failure to perform agreement, and reserving no lien in the deed to secure performance of consideration, it will not be canceled in equity for failure to furnish support. Lowrey v. Lowrey, 111 Miss. 153, 71 So. 309; Lee v McMorries, 107 Miss. 889, 66 So. 278, L. R. A. 1915B, 1069. Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L. R. A. (N. S.) 916.
HON. Z. A. BRANTLEY, Chancellor.
APPEAL from the chancery court of Holmes county, HON. Z. A. BRANTLEY, Chancellor.
Suit by Mrs. Mary J. Kendall against C. K. Wynn and others. Decree for plaintiff, and defendants appeal. Reversed and remanded.
Judgment reversed, and cause remanded.
H. H. Elmore, for appellants.
Neel & Jordan, for appellee.
Mrs. Kendall filed a bill in the chancery court, alleging that on the 20th day of August, 1912, she conveyed certain land to C. K. Wynn and Mary M. Wynn, the consideration of which, as set forth in the deed, reads as follows:
"That for and in consideration of the sum of five dollars ($ 5.00) cash in hand paid to the said Mary J. Kendall by the said C. K. Wynn and Mary M. Wynn, the receipt whereof is hereby acknowledged, and in further consideration of the said C. K. Wynn and Mary E. Wynn furnishing the said Mary J. Kendall with board and lodging for and during the term of her (the said Mary J. Kendall's) natural life in the home or house of the said C. K. and Mary M. Wynn, or wherever the said C. K. and Mary M. Wynn should reside, the said Mary J. Kendall to be treated and looked after the same as one of the family of the said C. K. and Mary M. Wynn, and in further consideration of the sum of forty dollars ($ 40.00) to be paid by the said C. K. and Mary M. Wynn annually to the said Mary J. Kendall on the 15th day of November, and thence annually thereafter during her said natural life, the said Mary J. Kendall by these presents does grant, bargain, sell, convey, and confirm unto the said C. K. Wynn and Mary M. Wynn the following described land, lying, being, and situate in Holmes county, state of Mississippi, and described as follows."
And that the said writing, though absolute on its face, was not so intended and agreed, but that it was agreed and understood between the parties that the premises conveyed were to be held by the defendants, conditioned upon the carrying out of the agreements set forth in the bill, and more particularly in the deed made Exhibit A to the bill, the pertinent provisions of which are above set forth, and alleging that upon failure of said defendants to carry out said agreement the said premises were to revert to the complainant; that the appellant's entered into possession of the premises and are still holding the same; and that in accordance with the said writing the defendants came to live with her in her said home, and at first treated the complainant kindly, but soon thereafter began to grow unkind and inconsiderate, and at times it amounted to abuse and insult, and that finally she learned indirectly of proposed attempts upon her life by C. K. Wynn; and that through his treatment, and her fear, she cannot live with him--and prayed for a cancellation of said deed, or if that could not be done, then to be allowed her support during the remainder of her natural life, and that such maintenance and support be decreed a lien upon the land. The answer denied the material allegations of the bill so far as the understanding of the...
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