McKenzie v. Dunsmoor

Bunn, J. This is an action to determine adverse claims to a tract of land inBice county. Plaintiff, Mabel E. McKenzie, claims a life estate, and her daughter, plaintiff Laura E. Budd, claims ownership in fee, subject only to the life estate. Defendants are the heirs of William Dunsmoor, and answered, claiming to be the owners of the land, , and asking that it be so decreed. The sole issue raised by the pleadings, was as to the title to this land: The facts are as follows: The premises in May, 1896, were owned by William Dunsmoor, who resided on them with his wife, Lydia A. Dunsmoor. They were-both over eighty years old. Dunsmoor, being desirous of providing for the future care and support of himself and his wife, executed [479] to one Stephen W. Budd a warranty deed of the premises, upon the sole consideration of an agreement by Budd to provide for the future care and support of Dunsmoor and his wife, and for the payment of their physician’s bills and the expenses of their funerals. This contract was in writing. After the execution of the contract and the deed, Budd and his wife went into possession of the premises, and continued to reside thereon and to support and care for Duns-moor and his wife until the death of Budd in November, 1900. Plaintiff Mabel E. McKenzie was the widow of Budd, and after his death continued to reside on the premises and to support and care for the Dunsmoors up to the death of William Dunsmoor in January, 1902. Shortly after this plaintiff left the premises and leased them to one Henderson, with the agreement that he should care for and support Mrs. Dunsmoor in consideration of free rent. After residing with Henderson fox a short time, Mrs. Dunsmoor became dissatisfied, and for reasons which do not appear from the evidence went to reside with one Empey, and continued to reside with him up to the time of her death in January, 1908. While she was so residing with Empey, the latter requested plaintiff, who had returned to live on the premises, to take back and care for Mrs. Duns-moor; but plaintiff refused the request. Mrs. Dunsmoor was possessed of property in her own right sufficient for her support. Out of this property there was paid to Empey for her support $1,100, and for physicians’ and nurses’ bills and the funeral expenses of William Dunsmoor $475. Plaintiff has never repaid any part of such sums, but it does not appear that payment was ever demanded of her during the lifetime of Mrs. Dunsmoor. The trial court found the foregoing facts, and as conclusions of law determined that the failure of plaintiff to support and care for Mrs. Dunsmoor, after her refusal to be supported and cared for by Plenderson, did not work annulment of the conveyance of the premises to Budd, or entitle defendants to be reinstated in the ownership and possession of the same, and that under the issues as made by the pleadings defendants were not entitled to a lien upon the premises for the repayment of the sums paid by Mrs. Dunsmoor for her sup [480] port and expenses. Defendants appealed from an order refusing a new trial. We think the trial court decided correctly. While there is no doubt that in a proper case a conveyance in consideration of a contract to care for and support the grantor will be canceled and annulled for a breach of the contract, it is equally clear that this remedy should not be applied when there has been a substantial performance of the contract, and when it would be inequitable to do so. In the case at bar there was a full performance of the contract by Budd until he died, and after his death by plaintiff until Dunsmoor died. The failure of plaintiff to pay some bills that she ought to have paid under the contract, and her refusal to accede to Empey’s request to take Mrs. Dunsmoor back, do not, in view of the long-time performance of the contract by her husband and herself, warrant a conclusion that the consideration for the deed had failed, or that plaintiff had failed and refused to substantially comply with the conditions upon which the property was conveyed. To decree a cancellation would be too drastic a remedy, and not equity. The pleadings preclude granting defendants any relief other than a cancellation of the contract. No facts are alleged to form the basis of any lien or claim for repayment of money paid by Mrs. Duns-moor for her support and expenses, and no relief of this character is asked. Defendants’ only claim on the pleadings is that they, and not plaintiffs, are the owners of the premises. Order affirmed.