138 Ind. 354 | Ind. | 1894
This is an action by the appellee against the appellants, to set aside a conveyance executed- by the appellee to the decedent, Joseph D. Sherfy, and to quiet the title of the appellee. The appellants, Elmer Sherfy and Ida Sherfy, are minors, who appear by guardian ad litem. After the issues were made, there was a trial in the court below before the court, and at the request of the appellants the court made a special finding of the facts, and stated its conclusion of law thereon, on which judgment was rendered for the appellee. The appellants appeal to this court, and assign errors severally and jointly to the proceedings in the lower court. To the amended complaint filed in the cause the appellants demurred separately and severally for the reason that it did not state facts 'sufficient to constitute a cause of action. The court overruled the demurrer, to which the
It is a general rule that a contract will not be rescinded when the parties can not be placed in statu quo. In order to secure a party his rights, as well as to enable him to institute legal proceedings, in causes of action arising ex contractu, it is ordinarily necessary.that a demand be made upon the party who is bound to discharge the obligation or perform the contract. The legitimate object of a demand is to enable the party to perform his contract or discharge his liability, agreeable to the nature of it, without a suit at law. In actions on contract, the failure to make a necessary demand before suit,, is cured by proof that the defendant could not have complied with the demand. Wilstach v. Hawkins, 14 Ind. 541.
In 5 Am. and Eng. Encyc. of Law, 528d, it is said: ‘ ‘Where a matter alleged lies equally in the knowlege of the plaintiff and defendant, an averment of notice is not necessary, as if it be an act to be done by a stranger. Neither demand nor notice nor other diligence is necessary 'when the party to be charged had no right to expect it, and could not have been injured by the omission of it.”
The doctrine is well settled that the law never requires the doing of a useless thing. Demand is not necessary when the person owing the debt or duty has means of knowing when it will become due as well as the opposite party.
The rule that he who seeks to rescind a contract of sale must first offer to return the property received, and place the other party in the position he formerly occupied, as far as practicable, prevails equally at the civil and common law, but it presupposes the idea that there are persons to whom the offer or transfer maybe successfully made, and where, as in this case, there is no one
In the case at bar, neither the administrator, the widow, nor the infant defendants could have restored the land in controversy to the appellee and revested him with complete title, if the note had been surrendered to them. In our opinion, it was not necessary to aver the tender of the note under the circumstances here presented, and we think the complaint is sufficient.
It is said, in 28 Central Law Journal, p. 321, that "Conveyances of property by aged and infirm people to their children, in consideration of promised support and maintenance, are somewhat peculiar in their character and incidents, and must sometimes be dealt with by the courts on principles not applicable to ordinary conveyances. A person incapacitated by the infirmities of age for active pursuits naturally feels a strong desire to place the fruits of his industry and enterprise where they will secure him, during the remnant of his life, a suitable and proper maintenance, without further care or labor on his part. One thus situated also naturally prefers to convey his property to his child for that purpose, and that his child, and not a stranger, should assume the obligation to maintain him. Paternal affection thus prompts him, and he relies upon the filial affection of his child for the faithful and cheerful performance of the obligation. And thus it is when an aged and infirm father conveys his property to his son, in consideration that the son shall care for and maintain him during the remainder of his life, elements enter into the transaction peculiar to such cases. Such a transaction * * is prompted often by necessity, always by affection for, and trust in, the son to whom he has transferred his means of support. Besides, the age and infirmity of the father
In the same journal, on page 324, it is said: “A contract to support is a contract for personal services; it can not be performed by another, unless the person receiving the support consents to receive it; and if the person who is to furnish the support die, then his heirs, executors or administrators must keep it.”
As appears from the complaint and the finding of the court, the chief consideration for the conveyance was the home comfort of the grantor and his support in declining years. While the decedent lived, the contract was faithfully kept; after his death, the widow and children and aged father remained together for two weeks, when the widow and children, over his advice and objection, abandoned the home and removed to her mother’s residence, four miles away, and never returned to look after or care for the appellee, leaving him as the sole occupant of the premises. The appellants having refused to remain and execute the agreement, they are in no better situation than the grantee would occupy if he were alive and had deserted the father. It would not be pretended that if the son had forsaken the father, under, like circumstances, he would have any standing in a court of equity. It is the province of a court of conscience when
The case we are now considering presents many features of resemblance to that of Richter v. Richter, 111 Ind. 456 (461), in which this court say: “The grantee having abandoned the land without sufficient excuse, and without offering to perform a continuous and fixed duty which rested upon him, no demand for performance was necessary in order to entitle the grantor to re-enter. Abandoning the land, under the circumstances, must be ■regarded as equivalent to such a renunciation of the contract as authorized the grantor to enter and treat the arrangement as at an end.”
In the carefully considered case of Lindsay v. Glass, 119 Ind. 301 (304), it is said: “One who accepts the property of a sister, or a parent, and agrees in consideration thereof to furnish a home, with suitable maintenance and support, does not perform his contract fairly and according to its spirit by simply furnishing shelter and subsistence. A home is' something in addition to a roof over one’s head, with food and drink supplied by strangers.” It is suggested by the learned counsel for the appellants that the deed in controversy is an absolute conveyance in fee, and no condition of any kind was annexed thereto; that a condition subsequent which will defeat an estate created by a deed, must be fairly expressed in the deed itself. This is too narrow a viéw of the question. The case is parallel in principle with Leach v. Leach, 4
It is shown by the special finding that the decedent and the appellee were together three hundred and thirty-two weeks under this arrangement, and the latter’s board, in excess of services, was worth $415; that the decedent, improved the land to the amount of $150, and constructed buildings and made repairs worth $220. Total, $785, for which, if no remuneration were received, a recovery might be had in this or another action on the quantum meruit in favor of the administrator or heirs; but there was received by the grantee rent of land 6 J4 years at $130 per year, $812.50; timber, $200. Total, $1,012.50, and in addition, as per agreement, all farming implements on the farm, the value of which does not appear. It would seem from these facts that the son was abundantly compensated for his services to the father, who is now eighty-two years of age, and the court so found. The court reached the conclusion that the deed was made upon a condition subsequent, which has been broken in the manner hereinbefore stated, and that the title of the appellee in the land should be quieted and
The judgment of the court below is therefore affirmed.