Bogie v. Bogie

Ltok, J. It will be observed that one theory of the action, as disclosed in the complaint, is, that the conveyance by the plaintiff to the defendant John Bogie, and the agreement of the parties executed at the same time, constitute a single transaction and have the same legal effect as though the terms of both were included in one instrument; and that the maintenance of the plaintiff by the defendant John Bogie is a [217] condition subsequent, tbe failure to perform which works a forfeiture of the lands conyeyed. It was stated in the argument at the bar, that the learned circuit judge held the plaintiff to this theory of the case, and sustained the demurrer to the complaint on the ground that the plaintiff had an adequate remedy at law. And it is undoubtedly true that a grantor may maintain ejectment after the breach of a condition subsequent, to recover the premises conveyed subject to such condition. Horner v. Railway Co., 38 Wis., 165, is such a case. Considering the conveyance and agreement in the present case as a single transaction having the legal effect just mentioned (and such is doubtless their legal effect), we fail to find in either any clause or provision creating a condition subsequent. This will clearly appear if reference be had to the rules for determining the existence of such conditions laid down in Horner v. Railway Co., which it is unnecessary here to repeat. There is nothing in either instrument showing that the parties thereto intended that the failure of John Bogie to maintain the plaintiff should work a forfeiture of the lands. This brings us to inquire whether the action can be supported on any other ground. A portion of the relief sought is the rescission of the conveyance and agreement; and a court of equity has power, in proper cases, to grant such relief. The nature of this jurisdiction, and the cases in which it will be exercised, are so well and so accurately stated by Sutliff, O.’ J., in Reid v. Burns, 13 Ohio St., 49, that we feel at liberty to quote at some length from the opinion. He says: “The rescission, cancellation, or delivery up of agreements, securities or deeds, is said to be one of the heads of equity jurisdiction indispensable to reciprocal justice. It is the converse of a specific performance. The ground for the equitable relief, in either case, is the same. The equity arises from the fraud which the circumstances of the case show would be per [218] petrated, but for sucb interposition of the court, upon the party ashing such relief. In neither case can the relief be claimed by the party as his strict right; but in both cases, an application for specific performance, and an application for a rescission of a contract, or reconveyance of lands, securities, etc., the relief asked is granted or refused by a court of equity U]Don its own conclusions, from all the attending circumstances, that the relief is or is not just and reasonable in the particular case. It is said, too, that the plaintiff will be expected, in a court of equity, in such cases, to show himself entitled to relief beyond a mere technical breach of duty. The court will also, in some cases, order an indenture to be canceled or annulled, on the application of one party, when it would refuse similar relief on the application of another, showing very clearly that the court, in such cases, has an ample discretion. And still the discretion exercised upon such applications by courts of equity is not an arbitrary discretion; but it is said to be c a sound and reasonable discretion, and regulated upon grounds that make it judicial.’ The court, however, often considers, before' granting it, whether the relief prayed would be attended with hardship or not; or whether a superior or inferior equity arises on the part of the applicant. See Story’s Equity, §§ 692 et seq.; and Willard’s Eq. Jur., 802 et seq. “While it must be admitted that there is a remarkable dearth of reported cases upon the subject of rescission of contracts, and reconveyances of lands, the authorities referred to, and other elementary writer^, very clearly show that it is oiily the exercise of the same power by the court, to decree a rescission or reconveyance that it is to decree a specific performance. In a proper case, a cjourt of equity has the power to grant either form of relief; and without a -proper case, the court will grant neither.” We are now to determine, in the light of these principles, whether the complaint before us alleges facts which, if true, [219] entitle tlie plaintiff to have his conveyance to Ms son and the agreement rescinded. Conveyances of property by aged and infirm people to their children, in consideration of promised support and maintenance, are somewhat peculiar in their character and incidents, and must sometimes be dealt with by the courts on principles not applicable to ordinary conveyances. A person incapacitated by the infirmities of age for active pursuits naturally feels a strong desire to place the fruits of his industry and enterprise where they will secure to him during the remnant of his life a suitable and proper maintenance, without further care or labor on his part. One thus situated also naturally prefers to convey his property to his.child for that purpose, and that his child, and not a stranger, should assume the obligation to maintain him. Paternal affection thus prompts him, and he relies upon the filial affection of his child for the faithful and cheerful performance of the obligation. And thus it is that when an aged and infirm father conveys his property to his son in consideration that the son shall care for and maintain him during the remainder of his life, elements enter into the transaction peculiar to such cases. Such a transaction on the part of the father is prompted often by necessity, always by affection for and trust in the son to whom he has transferred his means of support. Besides, the age and infirmity of the father may unfit him in a degree properly to protect his own interests, and may render him subject to imposition. ITence it is that we seldom find in such transactions evidences of that deliberation and careful regard to self-interest on the part of the father, which usually characterize ordinary business transactions of the same magnitude. Because of these and other considerations peculiar to a case like this, it is the duty of the son, and he should regard it as his highest privilege, fully to perform his agreement. This is not only a moral and religious duty, but it is a duty [220] of which a court of equity will take cognizance, and grant proper relief for its nonperformance. The complaint alleges an entire nonperformance, by Jolm Bogie, of his agreement to maintain his father. It is objected, however, that there is no averment of a demand for such maintenance. But what is the necessity for such demand? John Bogie knew that his father needed food daily, that he required shelter and clothing, and, when sick, nursing and medicine. He had been paid for furnishing these; and the spirit of his contract is that he should furnish them when needed, unasked, and with cheerful alacrity. On the question as to what relief should be granted for the entire failure of John Bogie to perform his agreement, we have no doubt or difficulty whatever. The proper relief, to wit, the rescission of the conveyance and agreement, is prayed in the complaint. "We should not hesitate so to hold on principle, in the absence of adjudged cases; but the cases cited by the learned counsel for the plaintiff sustain our view, although some of them may differ somewhat from the present case ¡in their facts. Hence it must be ruled, both on principle and authority, that the complaint states facts constituting a cause of action in equity against John Bogie. It is only necessary to observe, further, that under the aver-ments in the complaint, that the defendant MeOlery took a conveyance of a portion of the lands in controversy without paying any consideration therefor, and with full notice of the plaintiff’s equities, the plaintiff is entitled to the same relief against MeOlery. j By the Oowrb. — The order appealed from is reversed, and the cause will be remanded to the circuit court for further proceedings according to law.