Goodwin v. Tyson

Smith, J., (after stating the facts). It is first insisted that the deed was void because the agreement to support, constituting the consideration therefor, was not signed by Julius Goodwin. We think, however, that the deed was not void for the want of mutuality or because Julius Goodwin had not signed it, as appellees insist. The acceptance of the deed was itself an assent to its conditions. Fine v. Lasater, 110 Ark. 425; Wood v. Park, 97 Ark. 13; Whittaker v. Trammell, 86 Ark. 251; Boyd v. Lloyd, 86 Ark. 169. It is also insisted by appellees- that the provision in regard to support was a condition precedent, and that no title passed until the condition had been fully performed. But we do not agree with this contention. The title to the land passed upon the execution and delivery of the deed, subject to be defeated, however, by a failure to perform the condition imposed — that of support. Skipwith v. Martin, 50 Ark. 141; Cooper v. Green, 28 Ark. 48; Kampman v. Kampman, 98 Ark. 328; Swain v. Beakley, 133 Ark. 406; Terry v. Taylor, 143 Ark. 208; Moore v. Sharpe, 91 Ark. 407. On behalf of appellants it is insisted that the condition imposed was performed, and further, that, if not, the forfeiture was waived; and it is also insisted that appellees were barred both by laches and limitations from maintaining this suit. We do not consider the questions of waiver or of laches or of limitations, as, in our opinion, the testimony shows that the condition, the nonperformance of which would have defeated the conveyance, was in fact performed. In Boyd v. Lloyd, supra, Justice Battle said that an agreement to support the grantor during Ms lifetime is everywhere regarded as a sufficient consideration for a deed; and, in Edwards v. Locke, 134 Ark. 80, the court reviewed the authorities dealing with the right of the grantor to set aside such a conveyance, and the right of the grantor in such a deed to sue for rescission, upon condition broken, was there again recognized, as it had been in the earlier cases, and the holding of our earlier cases on the subject was summarized as follows: “The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and, where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, maj be resorted to, regardless of any remedy that the grantor may have had also at law. See Salyers v. Smith, 67 Ark. 526; 4 R. C. L., p. 509, § 22; Russell v. Robins, 247 Ill. 510; Stebbins v. Petty, 209 Ill. 291; Spangler v. Warborough, 23 Okla. 806; see also Bruer v. Bruer, 109 Minn. 260; Abbott v. Sanders, 80 Vt. 179; Glocke v. Glocke, 113 Wis. 303. See also case note 43, L. R. A. (N. S.), 918-925.” There are certain questions raised in the briefs which, as we have said, we find it unnecessary to consider, as we think the conclusion which we have reached from a consideration of the testimony in the case, that the condition was not broken, is decisive of the case, and we dispose of the questions raised by a decision of that question of fact. The testimony on behalf of appellees, in addition to that already recited, was that Julius was a good-man, but taciturn, and that his wife ran the establishment, her husband included; that she was irritable and exacting, and, on one occasion, threw a stick at one of the girls, and, on another occasion, threw a stick at Mrs. Hardy Goodwin. A fair interpretation of the deed in question is that the beneficiaries named in the deed were not only to be furnished food and shelter and clothing and other physical necessities, but these were not to be provided under condition which made it impossible for them to use and enjoy those necessities in ease and peace, as was said in Edwards v. Locke, supra, and it would not have been a compliance with the condition of the deed to have furnished these necessities but to have done so under circumstances which rendered the condition of the beneficiaries intolerable. On behalf of appellants it is denied that Mrs. Julius Goodwin threw a stick at either Mrs. Hardy Goodwin or at one of the daughters, but, even so, this did not drive either of them from the home. So far as the daughters are concerned, it is clearly established that they were furnished a home as contemplated by Hardy Goodwin upon the execution of the deed. They were furnished a home during infancy and until their marriage. Mrs. Hardy Goodwin was also furnished a home and support until the marriage of her youngest daughter, and, although she was invited to remain as a member of the Julius Goodwin family, she stated that she preferred to live with her baby child. It does not appear that Mrs. Hardy Goodwin was ever afterwards asked to return and live at the old homestead, and it does appear that no contributions to her support were made by Julius Goodwin’s widow or his children. Neither does it appear that Mrs. Hardy Goodwin ever called upon the widow or children of Julius Goodwin for any contributions, as required by the deed. The testimony shows that Mrs. Hardy Goodwin enjoyed a pension which sufficed to supply her personal wants. She apparently preferred to live with her daughter, rather than her son, or the members of her son’s family after his death, and was never shown to have complained that the provision of the deed in regard to her support was not complied with. On the contrary, it affirmatively appears that no such requests were ever made. A similar question was presented in the case of Salyers v. Smith, 67 Ark. 526. There a conveyance had been made to a daughter and her husband by the father, on condition that the grantor should be supported as long as he lived. There was a decree against the daughter and her husband, requiring them to make monthly payments, in default of which the land conveyed was ordered sold. This court, in reversing that decree, held that, until the appellants — the daughter and her husband — refused to render the support required by the deed, or had done some act tantamount to a refusal to do so, there was no cause of action. So here we conclude that, after providing the daughters a home and support for the time and manner required by the deed, and after likewise providing for the grantor’s widow so long as she chose to receive the support provided by the deed, the conveyance is not to be defeated because contributions to Mrs. Hardy Goodwin were not continued when they were never requested or refused. The decree of the court below, setting aside and canceling the deed, will therefore be reversed, and the cause will be remanded with directions to enter a decree dismissing the complaint as being without equity.