211 N.W. 839 | Iowa | 1927
I. Plaintiff and defendant Seymour Massee are the children, and Clifford Massee the grandson, of defendant M.M. Massee. About July 18, 1920, plaintiff and her father orally agreed that plaintiff should furnish a home for, take care 1. INJUNCTION: of, and treat her father properly, and that he subjects of should give her his 160-acre farm (he says 80 relief: acres) when he was through with it. It was interference agreed that the plaintiff and her husband and with the father should move upon the land, and that performance the place should be fixed up. Plaintiff was to of contract: pay the taxes and insurance. They did move upon conditions. the land. Plaintiff's husband made improvements and repairs. The father fixed over and improved the house. No trouble developed until July, 1923. About that time, the father demanded rent. Defendants' testimony is that the plaintiff promised, as a part of the agreement of 1920, to pay rent. Plaintiff and her husband testified that there was no agreement to pay rent. At least three other witnesses testified to statements by defendant M.M. Massee that he had given the farm to the plaintiff, and that all they had to do was to keep up the taxes and insurance (other than taking care of him, of course). Ten other witnesses testified to statements *1306 made by the father that he had given the farm to the plaintiff. The father testified that he then had other property and money amounting to about $2,200. The evidence shows very satisfactorily that the agreement was as claimed by plaintiff, and that there was no agreement that plaintiff should pay rent.
II. Defendants contend that plaintiff did not treat her father properly. The father testified, in substance, that the plaintiff furnished him nothing in the way of clothing; that they treated him "very fair before;" that plaintiff and her husband tried to tell him that he was insane; that the boy set him down in a chair, and told him to stay there; that plaintiff's husband choked him (he retracted this) and snubbed his nose; that plaintiff hit him over the eye. On cross-examination, he testified:
"White didn't treat me exactly right. * * * she treated me very good, and pled poverty all the while. Q. Did White treat you good? A. Not very good. Q. Did the son Matthew treat you good? A. Not very good. The granddaughter, the little girl, Harriet, shaved me. * * * Mrs. White sure hit me. Q. And you say that was the reason you left? A. Why, I wasn't going to tell. Q. What is the reason you left? A. I didn't like the way they did business. When I came there, they used up my lumber. * * * Q. You have nothing against your daughter now? A. I am sure I never bother them. * * * They went away and left me alone lots of times, and at night, except the little girl there. She was an awfully good little girl, but I don't think they used her any better than they did me."
The foregoing is the trend of the father's testimony. He was 85 years old when testifying, in 1923. He was evidently fickle, vacillating, and irascible. There are serious contradictions in his testimony. He told a number of witnesses, about the time he went to live with plaintiff, that the defendant Seymour, with whom he had been living, had kicked him out. The testimony of the plaintiff and members of her family is that the father was treated kindly by them; that he made no complaints, and said he was well satisfied. The testimony of other witnesses tends to corroborate plaintiff's claim in this respect. Without further detailing the evidence pro and con, we are satisfied that, while the father was irritable, and frequently flew into a rage, *1307 and, it is not unlikely, provoked retort, that his claims to having been abused or ill treated are not sustained.
III. The father claims to have paid some taxes and insurance assessments. The evidence fails to show, however, that the plaintiff was not ready and willing to pay the taxes and insurance, or that she has broken her contract in this or any other respect.
IV. Prior to July, 1920, the father, who was a widower, had lived most of the time since his wife's death with the defendant Seymour Massee. About that time, he left Seymour, and gave as his reason, and the evidence abundantly shows, that Seymour and his wife refused to keep him any longer. Two of the neighbors testified that the father said that Seymour's wife had asked him to deed the farm in controversy to them, and he had refused to do so. After leaving plaintiff, the father went back to Seymour's place. This was about July 18, 1923. On October 10, 1923, the father deeded to Seymour 120 acres of the land in question, and to Seymour's son, the defendant Clifford, the other 40 acres. These deeds were recorded. The plaintiff testified that, when the agreement in question was made, the father told her that he would make a will by which she would be given the farm. A will was later drawn by Getsch, a banker, who had been looking after the father's business. The banker testified that Seymour Massee got this will in the summer of 1923. The will was not produced. The banker testified, over objection, that the will gave the real estate to plaintiff. The father testified:
"I ain't obliged to tell if I deeded any property away or not. I have nothing now but a little money. A couple or $3.00. No real estate. I ain't a-going to tell you who I gave the real estate to."
The consideration named in the deeds is love and affection "and other considerations." Plaintiff was and still is in possession. Counsel, of course, admit that the grantees are not bona-fide purchasers. The circumstances, however, are important, as bearing on the question whether plaintiff should have an injunction.
Defendants' main contention is that plaintiff's agreement is one for continuing personal services, not specifically enforcible against her, and therefore not mutual, and also, until *1308
completely performed by plaintiff, not subject to specific performance; that the suit for injunction is, in effect, for negative specific performance, and therefore cannot be maintained. The plaintiff is not now entitled to specific performance, nor does she claim that she is, either positively or negatively. Her suit is for an injunction restraining the defendants from interfering with or preventing her from performing her contract. Though she is not, at this stage of the case, entitled to specific performance, either positively or negatively, she is entitled to maintain a suit on the principle of quia timet, to preserve her rights in the contract and property, and to protect her in performance, to the end that she may ultimately be in a position to claim and secure the benefits of the contract. Chantland v. Sherman,
"She is only asking that she be permitted to do that which she has agreed to do. When this has been accomplished, she will then have the burden of proving that she has complied with the terms of her agreement."
We are of the opinion that the plaintiff had, up to the time of trial, fully performed her contract (or held herself in readiness to perform), and that the payment of taxes and insurance premiums by the father was not occasioned by any refusal 2. CONTRACTS: of the plaintiff's to pay them. If plaintiff rescission: were in default in these respects, the technical breach. *1309
default is not such as to entitle the father to a rescission. Rescission or cancellation will not be granted for a mere breach not so substantial and fundamental as to defeat the object of the parties in making the agreement. Mintle v. Sylvester,
"Before taking the deed to the 120, I went up and asked Mrs. White as to why she was there * * * Don't know as I did take this deed without ascertaining what her rights were. I went up there, and she said, if they couldn't stay in peace with him, they would get off. She said in that conversation she would do just as she agreed. * * * Q. Didn't your father pay for any lumber on that farm [Seymour's] since you went there? A. I say he could if he wanted to. * * * I know my wife told Harry White [plaintiff's son] to come and get father. Q. She said she didn't want him there any more? A, She told him he had better have Mrs. White come and get her father and take care of him for a while. Q. She told him she talked to him as long as she was going to? A. She might. Q. You people at that time were tired of the old man? A. Not any tireder than the Whites got. * * * We didn't care about keeping him always. * * * I told him to go."
It may be that, by the strict terms of the agreement, and according to the understanding, the plaintiff was only required to furnish her father a home and take care of him on the farm which he agreed to give her. Her husband testified:
"We were to treat him reasonable, and give him whatever he asked for."
Plaintiff testified:
"We furnished him care, support, and maintenance, and everything he needed, as far as we knew. * * * I told him that I wanted him to come back. * * * The last of December or the first of January, I noticed a change in his mental condition."
Plaintiff's husband admitted that about $5.00 per acre is a reasonable rent for the land. The father is justly entitled to the affectionate care of his children. Owing to the unfortunate breach with plaintiff, he may find it morally impossible to return to her home. It is evident from past experience that the son and his wife might refuse to take care of him. The court, in imposing conditions to the granting of equitable relief, is not restrained by the strict legal rights of the parties, but may impose such terms as are demanded by justice and regard for righteous conduct. See 21 Corpus Juris 667. We are of the *1311 opinion that, as a condition to the issuance of the injunction, the plaintiff should be required to pay into the office of the clerk of the court from which the injunction issues, for the use of the father, $2,400, as rent to March 1, 1927, and that thereafter yearly, during the life of her father, as a condition to the continuance of the injunction, she should in like manner pay for his use the sum of $800. The plaintiff may at her election have decree in this court, or have the case remanded for decree in the district court.
The judgment is — Reversed.
EVANS, C.J., and De GRAFF and ALBERT, JJ., concur.