Lee v. McMorries

1. Deeds. Consideration. Failure. Cancellation. Vendor and vendee. Agreement to support grantor. Failure to furnish support in accordance with a promise, which becomes the consideration for a deed absolute in form is not sufficient to support a suit for its cancellation. 2. Vendok and Vendee. Vendor’s lien. Agreement to support grantor. There is no implied equitable lien in favor of a grantor of real estate to secure a consideration therefor, which is an agreement to support the grantor during life. The reason being that the charge is too uncertain, and indefinite in character.

Appeal from the chancery court of Lauderdale county. Hon. Sam Whitman, Jr., Chancellor. Suit by Edwin McMorries, trustees, against Blewett Lee, and others. From a decree in favor of complainant, defendant appeals. The facts are fully stated in the opinion of the court. Counsel for appellee takes the position that the failure to support in accordance with the agreement expressed in the deed is a failure of consideration. This, I contend is not so. I think that Mrs. Daly would have given Mrs. McCarthy the property without any promise from her to support Mrs. Daly and I do not believe that this was a part of the consideration at all; but, for the sake of argument, I am going to assume that this was a part of the consideration and see where it leads us. If the promise to support is a part of the consideration for the conveyance of the property and there is a failure to support, what then! Does a vendor’s lien in favor of the grantor exist! If not, does the conveyance amount to an equitable mortgage as contended by counsel for appellee? As to the first proposition we may rely upon 39 Cyc., pages 1791 and 1792, where the following language is used: “A vendor is not entitled to a lien where the consideration for the conveyance is a covenant or agreement to support the grantor during life, as it is of such a nature that the court cannot accurately ascertain and define the amount of the charge to be thus imposed upon the land. There is ample authority for this statement and as it is not questioned by appellee, as I understand their briefs, I will hurry to the next proposition, upon which, in my opinion, they must either stand or fall. I concede that there are cases where language in a deed or other instrument which amounted to an agreement to support the grantor for life, has been held to convert the deed into an equitable mortgage. But there is more authority holding the other way. In every case of this kind the distinguishing mark has been the query: Does the language in the instrument, whereby support of the grantor or other party is promised, make it apparent that the property was, by the intention of the parties, to be charged with the support of the party to be supported? The clearest and best statement of the law applicable to this case that I have been able to find after an exhaustive search in the case notes, is 13 L. B. A., page 725. The law is there stated in these words: “The present note is limited to those cases which discuss his right to an equitable lien on the premises conveyed. It appears to be well settled that an implied equitable lien does not exist in favor of a vendor of real estate to secure the consideration therefor, when such consideration is the maintenance and support of the grantor during life, some cases stating as the reason therefor that the charge is of too uncertain and indefinite a character (Peters v. Twvmell, 43 Minn. 473, 19' Am. St. Rep. 252, 45 N. W. 867; Arlin v. Brown, 44 N. H. 1020; Brawley v. Cairo, 8 Leiglit 522; Grim v. Holsberry, 42 W. Va. 667, 26 S. E. 314), while in other cases a lien is denied upon the ground that the covenant of the vendee is substituted for the purchase money, or as a mode of payment of the price of the land, and therefore the land is discharged of the lien (Meigs v. Dimock, 6 Conn. 458; Arlvn v. Brown, supra-, McKillip v. McKillip, 8 Barb. 552; Camp v. Gif ord, 67 Barb. 434; McCandlish v. Keen, G-ratt. 615.) ” The foregoing is the general rule. It is qualified by the following: ‘ ‘ This doctrine however, will not preclude courts of equity from charging the grantor’s support upon the premises, whenever, from the language of the parties or the attending circumstances, they can infer an intention.to create such a charge.” From the foregoing we see that it is well settled that there is no implied lien upon the property in cases of'this kind. There was no express lien reserved and there is no vendor’s lien contended for and this is made certain under the general law and also cases from our own court. Griffin et al. v. Byrd, 19 So. 717. This case holds that there can be no vendor’s lien unless the money for which the lien is cleaimed is fixed and certain. It could not be contended that the amount necessary to support the grant- or in this case was either fixed or certain. We respectfully call the court’s attention to the following cases which hol'd expressly that a conveyance similar to the conveyance in question passes title subject to the incumbrance or mortgage for the balance of the unpaid purchase price. The case of Abbott v. Sanders, 66 Atl. 1032, holds that a conveyance, such as the deed in question, would be treated as a mortgage, and in case of breach by the grantee, equity may grant relief by foreclosure, forfeiting and extinguishing the grantee’s rights, etc. This case also quotes authorities from Illinois, Oregon, Rhode Island, and Indiana, as well as other authorities from Vermont, Kentucky, Iowa, Michigan and West Virginia. In the case of Ringrose v. Ringrose, from the supreme court of Pennsylvania, of recent date, found in 33 Atl. 129, where there was a recitation of a consideration of three thousand dollars, recited to have been paid in the deed, and the further consideration of agreeing to support mother and father by the grantee who was the son, and this court held that in case of failure of the grantee to furnish support, that equity was the proper forum to restore the status quo in event of a breach by the grantee of the covenant in said deed. Thé grantee not having performed all of the terms of agreement and the lands conveyed having been sold, it was held that the terms of the conveyance would be enforced as against the purchaser, for the reason that it was apparent from the face of the deed that something .remained for the vendee to do before his title became perfect, and that he might be viewed in the light of a trustee in equity for the vendor even though the vendee might have received a legal title to said property. The court of equity looks to the substance of the agreement, not to the form, and enforces the intention of the parties to said contracts or deed, using this illustration: “A conveys land to B, and B thereby agrees to support the grantor, and B takes his title clogged with this expression of the purpose of the conveyance to him; wherever it can be inferred that the purpose of support is implied from the words of the deed, courts of equity will enforce such purpose.” The case of Gilchrist v. Foxen, 70 N. W. 587, enforced, in a court of equity, the right of the vendor as against a third party on the idea that the conveyance was in its nature a mortgage which gave notice to all purchasers. of the right of the vendor to have the title re-vested in said vendor in the event of a failure on the part of the vendor to comply with the condition of said conveyance. In the case of Grant v. Bell, 58 Atl. 951, the supreme court of Rhode Island, in 1904, held that a conveyance made for the support of the grantor by the grantee, creates an implied trust which can be enforced in a court of equity- — -citing eases from Virginia, Georgia, Vermont, Kentucky, Illinois, Connecticut and Michigan. In this case the grantee assumed and paid a mortgage on the lands conveyed, besides the agreement to support the grantor. As shown by the above cases and the vast array of authority cited thereunder, the • overwhelming weight of the modern doctrine supports the position taken by the learned chancellor in the case at bar, and we respectfully submit that the lien fixed by the decree should stand as handed down by the chancellor.