Priest v. Murphy

Kirby, J., (after stating'the facts). The father of appellants conveyed the interest in these lands to R. H. Murphy, in consideration of the sum of one dollar, and the further consideration that he was to clothe, board, raise and care for his three boys, William Martin, Gus Evans and Rasnus Abraham, aged, respectively, seven, five and four years, until they arrived at the age of twenty-one years, by a general warranty, without condition or limitation. It is contended by appellants that, the consideration of the deed having failed, it being alleged, and by the demurrer admitted, that the grantee did not furnish board, clothing and maintenance to appellants in accordance with the recitals of the deed, they have the right to have said deed cancelled and set aside because of such failure of consideration. The law is that where the consideration of a deed is the grantee’s undertaking to support the grantor, and he fails to comply with such undertaking, the grantor’s remedy is either to sue at law for the amount of the consideration as it would become due, or else to treat the contract as void and sue in equity to cancel and set it aside. Salyers v. Smith, 67 Ark. 526; Whittaker v. Trammell, 86 Ark. 251. The appellants all being of age when the suit was brought, the whole amount they were entitled to for the grantee’s failure to furnish them support and maintenance could have been determined and recovered in an action at law, and there is no allegation in the complaint of the insolvency of the grantee or his inability to pay any judgment that might be obtained against him on that account. If their father had made the grant in consideration of his own support, he could, upon a proper showing, have had the deed cancelled for a failure of such consideration; and if it had been made on such condition, he or they, his heirs, upon the condition broken, could have set it aside, but the grantor did not think it necessary to convey the property upon condition, and we think the right to cancel such a deed for .failure of consideration because of the maintenance not being furnished as agreed in the deed is personal to the grantor. That where the consideration requires the support and maintenance to be supplied to his children, during minority, by a stranger to whom the grant was made, their only remedy is by a suit at law against the grantee for the amount of the consideration due them, and that they can not, as heirs of the grantor, set aside the conveyance. It follows that the court did not err in sustaining the demurrer, and the judgment is affirmed.