117 So. 183 | Ala. | 1928
The bill is to cancel a deed to lands made in consideration that the grantee should support and maintain the grantor during life, and to further cancel a mortgage thereafter executed by the grantee. The Bank of Hartford, the mortgagee, demurred to the bill. From a decree overruling the demurrer, this appeal is taken.
In the granting clause of the deed, following a description of the property, are these provisions:
"The real consideration of the execution of this deed is that the grantee, Leeland Buffalow, is to support and maintain the grantor, P. A. Buffalow, his mother, during her life, and during her lifetime is to have a home with the grantee and shall enjoy and participate in the comforts of said home as any other member of the family, and the said Leeland Buffalow, the grantee, hereby assumes the obligations named, and agrees to carry the same out.
"It is further agreed and understood that the above is not a condition precedent to the passing of title to the grantee to this land, but the grantee shall not sell or dispose of this land during the lifetime of the grantor, except by her written assent, manifested by joining in the conveyance. And if the grantee should fail to carry out the obligations assumed by him and expressed above, then the grantor shall have the right, by appropriate proceeding in a court, to have this deed annulled."
The habendum clause reads:
"To have and to hold the above-described property with the conditions stated above to the said Leeland Buffalow, his heirs and assigns, in fee simple."
Then follows full covenants of warranty.
The conveyance was executed in 1920, prior to the adoption of section 8046, Code of 1923, declaring such conveyances voidable at the option of the grantor by proceedings in equity.
The property right vested in the grantee by the conveyance as of its date is in no way affected by this statute. The same protection inures to any one holding under him, whether acquiring their title or interest before or since the adoption of the statute. Hyman v. Langston,
But the bill is not framed under the statute. It avers that:
The grantee "has wholly failed to support and maintain" the grantor, "has failed to furnish her a home, and has failed and refused to allow her to enjoy and participate in the comforts of said home, and that she (complainant) has been forced to leave the home of respondent, Leeland Buffalow, and seek support and maintenance elsewhere."
Appellant, in argument, presents two contentions in favor of the validity of the mortgage: First, that the deed passes a title in fee simple, and the provision forbidding the grantee to "sell or dispose" of the property without the grantor's joining therein is void as a restraint upon alienation; second, that the grantor's reserved rights can be no more than a condition subsequent, to be strictly construed; and so construed the clause forbidding the grantee to "sell or dispose of" does not forbid the giving of a mortgage. Appellant's contentions cannot be sustained.
A court of equity looks with favor on the protection of a grantor, usually an old person presently or prospectively in need of the care of a child or other trusted person, and who makes a conveyance of property in consideration of promised support and maintenance during declining years. The remedy of cancellation is often the only adequate method of dealing with a breach of such condition. When an element of fraud intervenes, it is immaterial whether the stipulation be construed as a condition or as a covenant. Confidential relations between parent and child, and further implied in the nature of the transaction, impose a duty of performance quite sacred in the eye of a court of equity. Fraud is sometimes imputed to a course of conduct which will work a fraud on the confiding grantor. This court has recently considered and stated the law of the subject so fully that further discussion will not be indulged. First Nat. Bank v. McIntosh,
The clause defining the estate conveyed in the deed before us is quite carefully drawn, clearly making performance by the grantee a condition subsequent, and expressly declaring the remedy, rather than leave it to intendment.
We need not concern ourselves with the effect of the restraint on alienation as between mortgagor and mortgagee. It is clear enough that it was inserted to protect the grantor against the intervening claims of purchasers or mortgagees. To "dispose" of is quite inclusive, and, construed with the entire provision, means any disposition that would defeat the conditions under which the grant was made. Maybe no such clause was necessary, but it served the purpose of warning all persons of the grantor's rights in the premises.
A grantee, including a mortgagee, has notice of what appears in the chain of title of his grantor or mortgagor. The grantee, son of the grantor here, could pass to the bank no greater estate than that defined in *585
his deed. The bank took subject to all the equities held by the mother against the son. First Nat. Bank v. McIntosh,
Affirmed.
ANDERSON, C. J., and SAYRE, and GARDNER, JJ., concur.
