Morrow v. Morrow, 104 So. 393

Morrow v. Morrow

104 So. 393 | Ala. | 1925

It is settled by the decisions of this court that either for fraud in the procurement of the conveyance, or for a failure to comply with its terms and conditions, either precedent or subsequent, a conveyance, founded upon love and affection, support, and maintenance, etc., may be annulled for a breach thereof. Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; Russell v. Carver, 208 Ala. 219, 94 So. 128. Indeed, this doctrine is not questioned in brief of appellant's counsel, but it is contended that the bill fails to charge such a breach as would authorize an annulment of the deed. The bill sets out that the deed provides for a reasonable support; that is, that respondent was to reasonably provide complainant with the necessities of life and in such manner as he could reasonably expect according to his manner and mode of life. The bill further charges that respondent has for the last eight months failed and refused to provide complainant with the necessaries of life, although called upon to do so. We think this a sufficient averment of the breach of the agreement, and that it is not faulty for being a mere conclusion. True, the bill charges that the treatment of respondent and his children caused complainant to abandon the home of respondent, but this was superfluous, as the contract did not require or obligate complainant to remain at the home of respondent as a condition or method of support. Ballenger v. Ballenger, supra.

Whether the complainant is or is not entitled to an accounting as an incident to the relief sought, and as prayed for in the bill, did not render the same subject to demurrer. The fact that the relief prayed for may exceed what the averments of the bill will warrant does not render the same subject to demurrer. Wilks v. Wilks, 176 Ala. 151, 57 So. 776.

Counsel in brief make allusion to valuable improvements and the right of the vendee to compensation therefor. This is essentially defensive matter and has no bearing upon the questions presented by this appeal.

The trial court did not err in overruling the demurrer to the bill, and the decree of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.