138 Va. 643 | Va. | 1924
delivered the opinion of the court.
The appellant, Susan Cheek, filed her bill against the appellee, Marshall, seeking the cancellation of a deed which she and her husband had executed several years before, alleging failure of consideration. The deed is dated March 16, 1912, and conveys, subject to the life estate of the grantors, about forty-six acres of land for the nominal consideration of five dollars and the agreement on the part of Marshall that he would “furnish all the firewood that will be used by the said Susan Cheek and Richard Cheek for and during their lives. The said wood to be cut and hauled by the said Marshall.” He also agreed to “furnish the said parties of the first part for and during their lives all the corn-feed that will be necessary to feed one cow each winter.”
If the complainant, upon whom, of course, the burden of proof rested, had established the allegations of her bill by a fair preponderance of the evidence, she would have been entitled to have the deed cancelled. Wampler v. Wampler, 30 Gratt. (71 Va.) 454; Lowman v. Crawford, 99 Va. 688, 40 S. E. 17; Martin v. Hall, 115 Va. 358, 79 S. E. 320; Echards v. Waggoner, 126 Va. 238, 101 S. E. 245.
There were some conflicts in the testimony, but
These being the pertinent facts, we think that the decree of the trial court, dismissing the bill, is plainly right.
It is stated in one of the briefs that the appellant is now dead. The contract has been substantially complied with by the appellee, there has never been any refusal by him to perform it, and it would be inequitable to deny him the benefit of his contract. Such eases are an appeal to equitable considerations, and the case is controlled by the principles stated in Keister v. Cubine, 101 Va. 768, 45 S. E. 285, where the relief prayed for was denied in a case where the promisor had died before complete performance of her contract, and her infant children were incapable of performing
Under the facts shown, it would be inequitable to grant the relief prayed for.
Affirmed.