Lee v. McMorries

Reed, J., delivered the opinion of the court. Mrs. Annie Daly, an elderly lady, on July 10, 1909, executed a deed conveying to her granddaughter, Miss Annie Louis Foley, certain real estate in the city of Meridian. The consideration is stated in the deed in the following words: “Whereas, my granddaughter, Annie Louis Foley, has for a long time devoted herself to the affectionate care of me in sickness and in health, and in further consideration that she is to take me to the home hereinafter described and to care for me, as she has heretofore done, until I die, and in further consideration of the love and affection I hear to said granddaughter, I hereby sell, alien, convey and warrant. . ...” Miss Foley afterwards intermarried with J. G. McCarthy. On July 13, 1910, Mrs. McCarthy and her husband executed a deed of trust on the real estate conveyed by Mrs. Daly, to the Union Bank & Trust Company, as trustee, to secure to appellant, Blewett Lee, a loan evidenced by their promissory note in his favor. On September 1, 1910, Mrs. Daly executed an instrument of [894] writing. whereby she conveyed to appellee, Edwin Mc-Morries, as trustee, her entire estate, real, personal and .mixed, of whatever description and wherever situated, empowering him generally to collect all amounts due her and control and manage her property, and particularly to enter such proceedings as he might deem best, to recover and assert rights to the property which she had conveyed to her granddaughter. Appellee, on December 20, 1910, filed his bill of complaint, and later an amended bill, averring that there had been a failure of consideration in the deed from Mrs. Daly to Mrs. McCarthy, in that Mrs. McCarthy had not carried out the stipulation in the deed that she should support Mrs. Daly. Mrs. McCarthy, the Union Bank & Trust Company, and appellant, Blewett Lee, were made parties defendant. Appel-lee prayed that the deed from Mrs. Daly to Mrs. McCarthy, dated July 10, 1909, and the deed of trust from Mrs. McCarthy and husband to secure the loan from appellant should be canceled and held for naught, and that the title to the real estate should be revested in him. He further prayed that if he had not asked for proper relief, a charge should be fixed upon the real estate for the support and maintenance of Mrs. Daly to the extent of one hundred dollars per month and such charge made a lien. A demurrer to the amended bill was overruled. The case then proceeded to trial upon answer and proof. The chancellor, on final hearing, decreed that Mrs. McCarthy had breached the- deed by failing to comply with the covenants thereof, and that Mrs. Daly suffered damages to the extent of one thousand, two hundred dollars, for which a personal decree was given. He refused to cancel the deed, but decreed a first and paramount lien on the property for the payment of the amount of the personal decree. From this action of the chancellor, appellant .prosecutes this appeal. In the case of Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L. R. A. (N. S.) 916, this court held that: [895] ‘ ‘ Failure to furnish support in accordance with a promise which becomes the consideration for a deed absolute in form is not sufficient to support a suit for its cancellation.” The question for our decision in this ease is, Did Mrs. Daly, the grantor, have a lien upon the real estate she conveyed, to secure such amount as might be required for support provided for in the consideration of her deed? It has been held that there is not an implied equitable lien in favor of a grantor;, of real estate to secure a consideration therefor, which is an agreement to support the grantor during life. The reason for this seems to be that the charge is too uncertain and indefinite in character. Discussing the requisites, extent, and effect of such lien, Mr. Pomeroy, in his Equity Jurisprudence (3d Ed.), sec. 1251, says: “The grantor’s lien, wherever recognized, is only permitted as a security for the unpaid purchase price, and not for any other indebtedness nor liability. There must be a certain, ascertained, absolute debt owing for the purchase price; the lien does not exist in behalf of any uncertain, contingent, or unliquidated demand. ’ ’ In the case of Arlin v. Brown, 44 N. H. 102, it was decided that no lien would exist where the only consideration for the conveyance is the agreement of the vendee to support and maintain the vendor during the life of such vendor, and Judge Sargent, delivering the opinion of the court, said: “Where it appears that the consideration of a conveyance is that the vendee shall enter into covenants to do certain things, it has been held that there is no lien. Clarke v. Boyce, 3 Sim. 499; Parrott v. Sweetland, 3 Myl. & K. 655. This is upon the ground that the sale is made, not for a su.m of money, but for a security of a different kind, which security-itself is the consideration, and the [896] party having received that has been paid all that he contracted for. Buckland v. Packnell, 13 Sim. 406; Dixon v. Gayfere, 17 Beav. 421, 21 Beav. 118. This principle is held in Brawley v. Catron, 8 Leigh (Va.) 522, 528, where it is held that this lien will not be given by a court of equity as a security for unliquidated and uncertain damages, and will therefore not exist where the consideration of the sale is an engagement to support the vendor during his life.” It was deciced in the case of Peters v. Tunell, 43 Minn. 473, 45 N. W. 867, 19 Am. St. Rep. 252, that there would be no implied equitable lien to secure the performance of a consideration which is an agreement to support the grantor during life. We quote from the opinion in this case as follows: “It is in accordance with what is deemed to be the greater weight of authority that a vendor of real property is not entitled to an implied equitable lien to secure the performance of the consideration when that is of such a nature, as is that in this case, that the court cannot accurately ascertain and define the amount of the charge to be imposed upon the land and enforced out of it.” In Burroughs v. Burroughs, 164 Ala. 329, 50 So. 1025, 28 L. R. A. (N. S.) 607, 137 Am. St. Rep, 59, 20 Ann. Cas. 926, it was held that a lien did not exist where the consideration for the conveyance of land is an agreement to support the grantor during life. Judge McClellan, delivering the opinion of the court in that case, said: “We think there can be no doubt that one essential condition to the creation of a vendor’s lien is that there is a definite, ‘ascertained, absolute debt, owing alone for the purchase price of the land conveyed’; on the contrary, that no such lien arises where the consideration for the conveyance is an uncertain, indefinite contingent demand. ’ ’ Mrs. Daly, the grantor, was not entitled to an equitable vendor’s lien upon the land she conveyed to secure the [897] amount required for her support. Such amount was un-liquidated. It was uncertain and contingent. It was not an absolute, certain debt owing for the purchase price. It was indefinite in character. The chancellor erred in fixing the lien on the property. Reversed and remanded.