Bigley v. Souvey

Cooley, J. Defendant executed and delivered to plaintiff a deed of his homestead, but upon the express condition that “ the conveyance of land herein named shall be and continue the property of the first party during his life-time, and the remainder to said second party immediately at the death of said first party. But in the event of the death of the second party before the said first party, then the estate herein shall go to said first party as before.” This instrument was purely voluntary. The homestead was worth less than $1600. Plaintiff claims that defendant afterwards agreed to give her $2000, if she would reconvey, and she did so. He paid a small sum but refused to give more, and this suit is brought on the promise. The superior court held the promise to be without consideration ; and we agree in this. The instrument given by defendant was á deed in form, but was testamentary in its nature, and passed no title whatever. If defendant survived the plaintiff, it was to be inoperative; if she survived him, it was to take effect at his death. It was therefore a disposition of property to take effect at his death, she sur [371] viving him, and was a devise and nothing else. He might revoke it at will, and her reóonveyance had nothing upon which it could operate. The judgment must be affirmed with costs. The other Justices concurred