82 W. Va. 182 | W. Va. | 1918
The question here certified for our consideration is, whether plaintiff’s bill presents a proper ease for equitable relief. A demurrer to the bill was overruled, and the questions of law arising thereon were certified to this court by the circuit court of Roane county, on joint application of counsel for the respective parties, under the provisions of Sec. 1, Ch. 135, Barnes’ Code.
The bill presents a good cause for equitable relief. The parties -were jointly bound to perforin the undertaking or trust, and each was required to bear an equal share of the burden. If plaintiff has pei’formed more than her part as she alleges, she has a right to demand contribution from defendant. The maintenance and support were to be furnished at the home of the old people on the land conveyed and became' a charge or lien on the land, in the nature of a trust. The character of the conveyance and the provisions for the support of the grantors are very similar to those appearing in the well considered case of McClure v. Cook, 39 W. Va. 579, and the principles therein applied govern here. It was there held: “Where in a deed of settlement from father to son a tract of land is conveyed on the consideration, that the son will support for life his father and his wife, the grantors, and the deed taken as a whole shows the intention to be to charge the real estate conveyed as security for the performance of such duty, it is not necessary that a lien on the land for such support be expressly reserved on the face of the conveyance.”
It appears from the deed exhibited with.the bill in this case, which must be considered as a part of the bill, that the intention of the grantors was to make their maintenance and support a charge upon the land. The deed provides, “such support and maintenance to be furnished and provided for them by the parties of the second part, upon the land herein conveyed and it is also understood and agreed that the said Christopher Stutler may have the right to direct the farming of said land while he is able to do so.” And further along in the deed, this language occurs: “It is also understood and agreed that the parties of the first part retain for themselves a home upon the said land during their natural lives. ’ ’ This language is even stronger than the terms used by Jacob Cook and his wife in their deed, in the case above cited, to create a lien upon or trust in the land for the support of the grantors. The land being thus charged with a trust or lien for the support of the grantors, either of them, if living, would have the right to go into a court of equity to enforce it, and it is
Decree affirmed, and cause remanded.