94 So. 127 | Ala. | 1922
The sufficiency of the bill was challenged by demurrer for failure of averment of facts showing fraud or undue influence in the execution and delivery of the conveyance. Olson v. Olson,
Relief was rested upon respondent's failure or refusal to substantially perform his obligations under the contract to furnish complainant support, as agreed upon in the deed. Johnson v. Chamblee,
Respondent's answer on the issue of fact decided against him by the trial court was that —
"The considerations of said deed are set forth therein, and defendant says that he has not only since the making of said deed looked after the rest of complainant's land and her person until she left him several months ago, but he is able, willing, and ready to continue to look after her property, if she will permit him to do so. Defendant denies as untrue the allegation that he has actually converted the property of the complainant, that he has kept the rents from her, and that he has converted her mule, cow, and $150 in money. Defendant says that he not only provided clothing, food, and good shelter, for her, but he has done everything in his power to look after her as a son should look after and provide for his mother. He positively denies the allegation that he has turned her out in the world to make a living for herself as best she can, or that he has provided no home for her. Defendant says that complainant has left his home through no fault of his. * * *"
He does not aver his readiness and willingness to "look after" complainant's person wherever she chooses to live, as was done and proved in McSwean v. McSwean, supra. Aside from the evidence tending to show the unhappy situation and failure of duty to complainant, respondent testified:
"I further agreed to look after the rest of my mother's land and also her person during her life. Up until the time she left I did that. I provided her with the very best food I had, and with clothing, and with money whenever she wanted it. She just went to the cash drawer and got it whenever she wanted it. She never made a request of me for clothing, food, or money that I failed to grant. I did not run my mother off. I am able to look after her and her property, and willing to do so. I have never been no other way. I have never mistreated my mother, I have never mistreated her in any way. I tried to get her to come back and live in my home. I tried to get her not to go away. My mother from time to time comes to my store and gets supplies. I do not charge her anything for these things. My mother and my wife had a little bit of trouble."
On cross-examination:
"I am satisfied that I have bought her two dresses in four years maybe more than that. I am providing for her some now — as much as she will let me. I provide for her by letting her have anything she wants. I tell her to come there and get it."
The expressions in conveyances such as "take care of," "support," "clothe," "maintain," *149
or "look after" grantors are held to be used in their ordinary acceptations as applicable to the condition, degree, and circumstances in life of the parties contracting. McSwean v. McSwean, supra; Eskridge v. Ditmars,
We find no error in the decree of the lower court. It is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, and MILLER, JJ., concur.
McCLELLAN, J., dissents.
