| Va. | Nov 20, 1919
delivered the opinion of the court.
This suit was brought by Uriah Waggoner and his wife for the purpose of cancelling and annulling a deed by which they hád conveyed to their daughter, the appellant, their tract of land and certain personal property, the bill alleging fraud in the procurement of the deed and failure of consideration. The circuit court granted the relief prayed for, and from that decree this appeal was allowed. Since then Uriah Waggoner has died and the cause has been revived in the name of his widow and children.
The deed reads thus:
*240 “Witnesseth: That for and in consideration of the sum .of one dollar paid by the party of the second part to the parties of the first part, the receipt of which is hereby acknowledged, and for and in consideration of the premises hereinafter stated, the parties of the first part do convey with general warranty unto the party of the second part, all their land lying in the county of Highland, in the State of Virginia, being the land on which the parties of the first part now reside, adjoining the lands of Geo. A. Smith, Isaac Simmons, Web Kiser and Others, but the parties of the first part do retain a life estate in the said land for themselves and the survivor.
“And in consideration of the agreement of the party of the second part this day with the party of the first part that she shall pay all the debts of the parties of the first part and pay the taxes on the said land each year as long as the parties of the first part live arid that she will maintain and support the parties of the first part as long as they live, furnish them sufficient clothing, food and a good house in which to live, pay their doctor’s bills and take care of them in all respects according to their Station in life, the parties of the first part do grant possession of the said land to the party of the second part and agree that she shall keep the possession of the said land as long as she cares for them properly, maintains and supports them comfortably and according to their station in life and also gives the party of the second part the right to make use of all the personal property on the said land which she may see fit to use. And if all the parties to this deed remain satisfied with the present arrangement as long as the first part live then this contract or lease of the land is to stand. But the parties of the first part distinctly preserve the right to require the party of the second part to give possession of the said land and all personal property, actually belonging to*241 the parties of the first part at any time the parties of the first part may conclude that the party of the second part is not properly maintaining, supporting and caring for the parties of the first part so that the parties of the first have the right to take possession of the said land'at any time they may see fit and keep the same as long as they, the parties of the first part live and as long as either of them live. But at the death of the survivor of the parties of the first part the said land goes to the party of the second part.
“And it is understood and agreed by all parties to this deed that the parties of the first part have the right to live in the home now occupied by the party of the second part or in the home mentioned and described in this deed and hereby conveyed either they may see fit. And if the party of the second part does not live as long as both the parties of the first part, then her right to the possession of the said land and all the property thereon belonging to the parties of the. first part ceases.
“Given under our hands and seals this 26th day of Jan. 1914.”
It is contended for the appellant that the conveyance of the remainder after the expiration' of the joint life estate which was retained by the grantors is an absolute, unconditional gift, and that the consideration for the deed which, she was to furnish relates only to the lease of the life estate; while for the appellees, it claimed that the considerations in the contemplation of the parties' for the contract as an entirety were those expressed in the deed, and relate to the remainder as well as to the lease of the life estate.
The considerations thus expressed in the clause conveying the remainder are one dollar and “the premises hereinafter stated,” and in the succeeding clause leasing the life estate, that the grantee shall pay all of the debts of the grantors, pay the taxes on the land each year as long as the grantors live, that she shall maintain and support the
The deed together with the parol evidence in this case show very clearly indeed that the grantors did not intend to make an absolute gift of any part of their entire estate to the appellant, their daughter. They were willing to execute a will giving her their property at their death, if their daughter would pay their debts as well as. support and maintain them during their lives. It was only after persuasion and the refusal of the daughter to undertake such an obligation unless they would make her an irrevocable deed, that they executed the instrument in question, which is described by the parties as “something between a deed and a will.” There is no evidence of fraud in the procurement of the instrument, but it is established that after a residence of less than three months in the daughter’s home, the parents went back to their old home, because the disagreements were sharp and apparently irreconcilable. It is noted, however, that under the deed itself the
It clearly appears that after' the return of her father and mother to the old home, the daughter refused to pay their debts, which, as we construe the contract, she was clearly under obligation to do. The consideration for the conveyance of the remainder and the consideration for the lease of the life estate to the daughter cannot be distinguished, apportioned, or separated. There was a single contract which imposed upon the grantee the obligation both to pay the debts and to furnish support and maintenance. There is nothing then in the record which justifies the conclusion that the grantors intended to make an unconditional gift of the remainder after the expiration of the life estate. The clause in the deed which is relied upon for the contrary view is this: “but at the death of the survivor of the parties of the first part the said land goes to the party of the second part.” Standing alone, this clause supports that contention, possibly, but it does not stand alone, and must be considered along with every other part of the instrument being construed, as well as with reference to the parol evidence showing the motive and true consideration for the entire conveyance. This language appears in the paragraph of the deed which provides for the lease of the life estate, and immediately follows the reservation to the grantors of the right to cancel this lease for failure to support and to resume possession of the property at will. The clause quoted should be construed as relating to this reservation and to mean that the mere resumption of possession of the land and personal property should not of itself defeat the remainder after the expiration of the life estate; and should not be construed to relieve the grantee from her
Rescission of the deed was the relief granted in Lowman v. Crawford, 99. Va. 688, 40 S.E. 17" court="Va." date_filed="1901-11-21" href="https://app.midpage.ai/document/lowman-v-crawford-6810513?utm_source=webapp" opinion_id="6810513">40 S. E. 17; Martin v. Hall, 115 Va. 358" court="Va." date_filed="1913-09-11" href="https://app.midpage.ai/document/martin-v-hall-6812831?utm_source=webapp" opinion_id="6812831">115 Va. 358, 79 S. E. 320; and Tysor v. Adams, 116 Va. 239, 81 S. E. 76, 51 L. R. A. (N. S.) 1197, and this is the relief which should be granted in this case.
Affirmed.