Russell v. Carver , 208 Ala. 219 ( 1922 )

In my opinion the decree under review, canceling the deed from Micajah Carver and wife to Carrie Carver (later Russell), their daughter, executed August 22, 1914, is laid in manifest error, and should be reversed instead of affirmed. Neither in point of fact or of law is the decree to be justified. The ground for cancellation is that as the consideration for the deed the daughter engaged to care for, maintain, and support her aged parents, during their lives, did not keep the contract, ordered the appellee away from the premises, made it too disagreeable for him to live on the premises, all occurring, it is averred, either after Russell began visiting the defendant or after their marriage; the marriage to Russell being contracted against her father's protest. The testimony presented, even of complainant himself, refutes material averments of the bill, including the major allegation of the bill that cancellation was complainant's due because she had breached her asserted agreement to maintain, etc., her parents during their lives. The wife of complainant died some years before the bill was filed, while the parents and daughter resided on the 40-acre, illy-improved farm. It is plain from the record that the reason inspiring the proceeding to cancel the conveyance was this marriage of the appellant; a marriage that complainant himself testified made him "mad" with his daughter. The record abounds with evidence that the motive for the execution of the deed to the daughter in 1914 was gratitude for her long, faithful service to her aged parents, the complainant admitting as a witness, and having repeatedly declared to others, that the daughter deserved to have the farm because she had remained with her parents, had worked in the field to contribute to the payment of its purchase price, and had faithfully done burdensome household work and bestowed personal care on her aged and infirm parents. After the marriage complainant exacted $150 rent note (dated September 30, 1919) for the place for the year 1920; both the daughter and her husband executing the rent note, the testimony leaving in no doubt whatever that complainant then agreed to contribute a definite proportion of the "rations" consumed by the three. The complainant collected about $85 on this rent note. Even if it should be conceded (against the distinct weight of the evidence) that the daughter engaged to maintain and support her parents, the indicated arrangement made after her marriage was an unmistakable abandonment of any right to rely upon the earlier engagement. Complainant was and doubtless is yet a pensioner, drawing from the United States $96 each quarter. The record shows without dispute that the farm produced little, having cost originally only $80, and being but partially cultivated.

So far as presently important the deed to the appellant reads:

"Know all men by these presents:

"That we Macajah Carver and Mary Ann Carver his wife of Marshall county, and state of Alabama, for and in consideration of the sum of five dollars, to us in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained and sold, and by these presents do grant bargain, sell and convey and give to Carrie E. Carver her heirs and assigns, the following described real estate, to wit:

"The northwest quarter of the southeast quarter of section twenty-three in township seven south of range one east of Huntsville Meridian in Marshall Co. Ala., containing forty acres.

"(The said Macajah Carver and Mary Ann Carver retain the right to hold said land until their death and this deed to be in full force and effect.)

"Together with all and singular the tenements and appurtenances thereunto belonging or in any wise appertaining To have and to hold to the said Carry E. Carver her heirs and assigns, in fee simple forever."

As appears the deed reserved to the grantors the right to hold "said land until their death." Planters' Bank v. Davis,31 Ala. 626; Proctor v. Scharpff, 80 Ala. 227, 229; Graves v. Wheeler, 180 Ala. 412, 417, 61 So. 341. It is shown beyond dispute that complainant did not convey by the deed practically all he owned to his daughter; the reservation was of the use for both parents of the premises for their lives and his pension; and later, when the daughter married over his protest, he exacted of the daughter and her husband an exorbitant rent for the place for the year 1920. Only the relation of these parties to this complainant can account for their agreement to pay such high rent. It is manifest from the record that in any event the complainant was and is blessed with abundance as compared with his practically impecunious daughter and her husband; and this fact further emphasizes the great injustice that this decree inflicts upon her.

The more serious phase of the deliverance in this case is, as it was in Woodley v. Woodley, 201 Ala. 662, 664, 667, 79 So. 134, that a condition subsequent by which title may be divested is held to be created by the nonperformance of a mere parol agreement to maintain and support the grantor that, it is asserted, afforded the consideration for the conveyance; no such matter appearing in the instrument assailed. In the Woodley Case, supra, the writer (Justices Anderson and Mayfield concurring in that dissent) set down the authorities in this state and the considerations that contradict the conclusion that a condition subsequent could be created by parol, and the unsoundness of the pronouncement, similar in principle, made in Seaboard R. Co. v. Anniston Co., 186 Ala. 264, 65 So. 187, was affirmed as of the apt authority established in Elyton Land Co. v. Railroad Co., 100 Ala. 396, 405, 406, 14 So. 207, and Zimmerman v. Daffin, 149 Ala. 388, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58. Vizard v. Robinson, 181 Ala. 349,357, 358, 61 So. 959, also accords with the last noted decisions. The subject is more recently treated in Libby v. Winston (Ala. Sup.) 93 So. 631.¹ See, also, 2 Devlin on Deeds (3d Ed.) § 970. This doctrine of the Elyton Land Co. Case and others in its line has long constituted a rule of property in this state, and should not be thwarted or avoided in application at the behest of expediency. In their proper sphere, the courts are but interpreters and administrators of the law, not arbitrators between contestants in their forums. Hamner v. Smith, 22 Ala. p. 442; the declaration in which was recently reproduced in Butler v. Brooks, 204 Ala. at page 197,85 So. 778. Consistent with the theory of the judicial function it has been well said: "The decisions of courts are not the law; they are only evidence of the law." It is, however, now frankly conceded that cases of conveyances on consideration of an agreement to support and maintain the grantor are sui generis, exempted from the government of established principles because they are peculiar in their character and incidents. Such a pronouncement emphasizes the fact that the only real divergence between the doctrine of Gardner v. Knight, 124 Ala. 273, 27 So. 298, and the recently delivered cases otherwise concluding (aside from Brindley v. Brindley, 197 Ala. 221-223, 72 So. 497) is that this court in Gardner v. Knight recognized and applied established principles, whereas, latterly, this court has declined to do so on the ground that conveyances on consideration to support the grantor are sui generis, exempt from the government of such principles. This method of departure from Gardner v. Knight may serve as an explanation of the court's recent course. It affords no measure of answer to the consistent application of established principles Gardner v. Knight illustrates.

There is no fraud claimed or averred or proved against Carrie Russell, the grantee, in respect of any phase of this transaction. The evidence shows without dispute that from 1914 (when the deed was made) to 1919 she met every possible parental expectation, in their care, etc. Surely, no ground for rescission could exist when to do so would involve the acceptance to the grantors' benefit of the daughter's service for five years, and then, thereafter, belatedly repudiate, without any restoration, the transaction, thereby taking the benefit of her self-sacrificing labors and denying her the advantage the transaction (the deed) granted her. There can be no rescission without restoration except in a few limited instances where restoration would be vain or impossible. The existence of this principle is probably the reason why rescission was not sought by this complainant; but, the conveyance being now canceled, complainant is undoubtedly due her the value of her services, rendered, according to complainant, as the consideration for the conveyance of the remainder in this land. If, as the court now decides, the breach of an unwritten promise to support justifies cancellation of a conveyance made on that character of promise as a consideration, a pronouncement inconsistent with accepted principles (Holloway v. Smith, 198 Ala. 118, 119, 73 So. 417, and cases therein cited; Brindley v. Brindley, 197 Ala. 221 -223, 72 So. 497). I am unable to conceive how cancellation can be consistently or justly decreed, other than by the arbitrary exercise of judicial power, when any other promise, given as consideration for a conveyance, is not performed. Should the certainty and stability of titles to real property be subjected to that character of menace?

In my opinion the decree should be reversed, and a decree here rendered dismissing the bill.

¹ 207 Ala. 681.