255 N.W. 466 | S.D. | 1934
Fritz F. Peters and his wife, plaintiff in this action, on March 5, 1925, executed and delivered to their son, Otto C. Peters, a warranty deed to a quarter section of land in Aurora county. On the same day and as a part of the same transaction the grantors in such deed entered into a contract with their son and his wife, reciting the conveyance and the consideration therefor. The contract contained the following provisions: "This contract entered into this 5th day of March, 1925, by and between Fritz F. Peters and Wiebke C. Peters, husband and wife, of Mitchell, Davison County, State of South Dakota, parties of the First part; and Otto C. Peters and Sophia W.C. Peters, husband and wife, of Stickney, Aurora County, State of South Dakota, parties of the second part, Witnesseth: That the said parties of the first part hereby agree to grant and convey by a good and sufficient Warranty Deed of even date herewith, to Otto C. Peters, one of the parties of the said second part, grantee, of Stickney, Aurora County, South Dakota, the following described real estate situated in the County of Aurora, in the State of South Dakota, to-wit: (description follows). That as a consideration for said above mentioned deed the said parties of the second part hereby agree to pay to the said parties of the first part the sum of Four Hundred Dollars on the date of this contract, and thereafter the sum of Four Hundred Dollars on the 1st day of March of each and every year during the natural life of said Fritz F. Peters and Wiebke C. Peters, and at the death of either one of said second parties the said payment of Four Hundred Dollars per year shall be paid to the survivor during his or her natural life; that at the death of such surviving husband or wife the consideration for the afore-mentioned deed shall be deemed fully paid, and the said parties of the second part released from any further obligation under this contract. This contract is binding on our heirs, executors, administrators and assigns."
The husband of the plaintiff died before the commencement of this action. Since the payment maturing March 1, 1930, no payments under the contract have been made, and this action was instituted to have the contract and the amounts payable thereunder adjudged a lien on the premises. Otto C. Peters and his wife on December 19, 1932, conveyed the land to defendant W.F. Sprick. Title was acquired by Sprick with knowledge of the existence of *565 the contract and of the delinquent payments. The trial court found for the plaintiff, and judgment was rendered decreeing a lien upon the premises, superior and paramount to any title or interest of the defendants, for the amounts maturing and unpaid during the lifetime of the plaintiff.
[1] The contract provides for the payment of a stipulated annuity. It recites that the consideration for the conveyance is this agreement of the son to pay annually to grantors and "at the death of either one * * * to the survivor during his or her natural life" the agreed amount of $400. The conveyance was in consideration of such support to be furnished by the grantee and his wife, and the legal effect is the same as though this agreement for support had been made a part of the deed. Hegge v. Hegge,
Without express provision for re-entry or forfeiture for a failure to perform, defendants contend the plaintiff may not have recourse to the land; that the failure by a grantee to perform a promise which constitutes the consideration inducing an executed conveyance gives rise to no right of cancellation in a grantor or to the impairment of the title of the grantee for the reason that the promise does not amount to a condition; and that the remedy of the plaintiff is an action for damages. Where an aged parent conveys land to a son or other relative for the consideration that the grantee shall furnish support or pay an annuity, much hardship would result in many cases if relief in equity were denied in obedience to the rule contended for. In Bruer v. Bruer,
Courts hold with substantial unanimity that the grantor in a deed, the consideration for which is his support to be furnished by the grantee, is entitled to equitable relief by sustaining a right or interest in the land conveyed where there is nonperformance of the agreement to support, but are not in accord as to the grounds or the form of the relief. In some jurisdictions the promise of a grantee to furnish support is regarded as a condition subsequent on breach of which the grantor has the right of re-entry. Glocke v. Glocke,
[2] No cancellation or rescission of the conveyance was sought by the plaintiff, and the relief granted was the adjudication of a lien upon the property acquired in the transaction. It is not *567
necessary to determine whether a court of equity may properly hold an agreement for support under facts such as are here presented to be a condition subsequent to the conveyance of title or may decree a rescission for failure of consideration, in whole or in part. Section 904, Rev. Code 1919; Hegge v. Hegge, supra. Courts may grant such equitable relief as the facts will justify, and the rule referred to, if applicable would not prevent the granting of other relief. Johnson v. Johnson,
[3, 4] While it is true as applied to an ordinary conveyance that the failure by a grantee to perform a promise will not give rise to a lien or charge against the land in the absence of an express reservation or promise to that effect, we do not regard the omission of such a clause in a contract of the kind under consideration as fatal. Courts take cognizance of the peculiar character of these transactions involving the element of confidence and other considerations, and as we have indicated do not deny relief by reason of the general principle applicable to ordinary conveyances. Hegge v. Hegge, supra; Bruer v. Bruer, supra; Bogie v. Bogie,
The judgment and order appealed from are affirmed.
All the Judges concur.
