Chadwick v. Chadwick , 121 Ala. 580 ( 1898 )

SHARPE, J.

— The contract described in this bill belongs to a peculiar class to which the remedy of specific enforcement is not adapted or applied. ■ The chief consideration moving to the defendant for the conveyance which the complainant seeks to compel is the agreement on his part to allow the defendant to reside with him, and to support her during her life. It is an undertaking which implies the legal duty on his part not only to furnish necessaries for defendant’s support, but to treat her with due consideration so that her existence as a member of his household might be at least tolerable. The court of equity will not undertake to regulate or control the performance of such continuous duties, and it would be powerless to do so by any of its process. Bumpus v. Bumpus, 53 Mich. 346; Bourget v. Monroe, 58 Mich. 563; Mowers v. Fogg, 45 N. J. Eq. 120. Even if such power existed yet its exercise in such a controversy between a mother and her son’would be of doubtful expediency. The incidents of such interference by the court would go far to engender feelings of antagonism between the parties, destructive of the affection and confidence natural to the relation and which in the interest of society at large the court of equity would conserve rather than disrupt.

But aside from any ethical consideration and upon general principles of equity, the jurisdiction will be declined because of the inequality in which the parties áre placed by such contract in respect to the remedy for its enforcement. I To compel its observance by one when its benefits co.uld not be secured to the other would be alike unequal and inequitable. Upon that ground the doctrine is well established, as applicable to suits for specific performance, that though no difficulty may attend the execution of the contract on the part of the defendant, yet, unless there be mutuality as to the remedy as Avell as the obligation so that the complainant in case of his defection could be compelled to perform, the parties will be left to other remedies.—Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498; Irwin v. Bailey, 72 Ala. 467; Fry on Spec. Perf. § 286; Pomeroy on Contracts, § 162.

If the defendant’s presentment of the case be the true one, the remedy, if it existed, might well be applied in her favor since it reveals a gross breach of his obligation in respect of his treatment of the defendant. But the bill is without equity, and the plaintiff’s case fails regardless of the matters set up in defense, so that particular reference to those matters is unnecessary.

It may he noticed that the bill, being to compel a conveyance, is also defective in not averring with more certainty a failure of defendant to execute the conveyance. It avers that her name was written upon the deed by her direction in a way which may have amounted to a valid signature, and is silent as to whether there was any attestation or acknowledgment, leaving room for the inference, which may he drawn against the pleader, that the execution of the deed Avas completed.

The decree of the chancery court will he in all things affirmed. The appellant Avill pay the costs of the appeal in this and in the chancery court.

Affirmed.