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^ Leach y. Leaoh, 10 Ind. 271. The land does not go
to the admiaitfirator. Hathaway w, Payne, 84 N. Y. 02.

4« Marsh y. Austin, 1 Allen, 286.



ance, whether the condition consists in the
payment of money, ot the performance of
some other act.'"^ Neglect to perform the
condition does not of itself determine the
estate, bnt onlj exposes it to be defeated and
determined at the election of the grantor, and
in case of his death, at the election of his
heirs.^ A stranger cannot demand a per-
formance of the condition, nor enter if it is
broken.^ Until there has been a failure to
perform no demand for performance, nor an
entry for failare to do so, can be snccessf ully
made.^

§ 13. Demand of Performance Excused. —
The conduct of the grantee or mortgagee may
be such as to excuse the milking of a demand
of performance. Thus, where a father, eighty-
two years of age, feeble and childish, con-
veyed his farm and personal property to his
son, on condition that he would sell the per-
sonal property and pay his (the father's)
debts, and support him for life ; and after
selling such property and paying the debts,
three months after possession of the farm, at
ihe mere bidding of his father, left him to the
care of others ; it was held that the son had
abandoned ihe contract, and as the father
was in possession, no entry was necessary, for
remaining in possession after condition bro«
ken by the grantee was equivalent to ' a re-
entry for breach of the condition ; and having
made a fruitless demand for a reconveyance,
suit to quiet title lay in favor of the father.
^ ^Knowing the age and condition of his father
at the time he took the conveyance, it was the
duty of the son to remain and execute his
agreement, unless it became impossible to do
so. The facts found leave the impression
that the son availed himself of the earliest
opportunity to find an excuse for leaving.
Having abandoned his father without more of
an effort to execute the agreement than ap-
pears to have been made, he may not now
say that the grantor has rendered it impossi-
ble for him to perform the conditions by
^ordering him to leave.' " Again: ^^The
grantee having abandoned the land without

« Cory V. Cory, 86 Ind. 687; Lindtey v. Lindsey, 46
Ind. 662; Risley v. MoNiece. 71 Ind. 484; Bradstreet v.
Clarlc, 21 Pick. 889; Scbuff v. Ransom, 79 Ind. 468.

« Cory V. Cory, 80 Ind. 667.

47 Cross V. Carson, 8 Blackf. 188; s. C, 44 Am. Dec.
742.

« Flanders y. Lamphear, 9 N. H. 201; Rtioadesv.
Parker, 10 N. H. 88.



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sufficient excuse, and without offering to per-
form a continuous and fixed duty which
rested upon him, no demand for performance
was necessary in order to entitle the grantor
to re-enter. Abandoning the land under the
Circumstances, must be regarded as equiva-
lent to such a renunciation of the contract as
authorized the grantor to enter and treat the
arrangement as at an end." *^

§ 14. Relief from Forfeiture, — ^From a for-
feiture of the condition for maintenance, a
court of equity may grant relief when the
forfeiture has been accidental or uninten-
tional, and not attended with irreparable in-
jury. The right to it rests in the sound dis-
cretion of the court. ^^We must all feel that
cases of the chfiracter before ihe court should
be received with something more of distrust,
and relief afforded .with more reserve and
circumspection, than in ordinary cases of
collateral duties. And although we are not
prepared to say that it must appear that, in
all cases, the failure arises from surprise, or
accident, or mistake, we certainly should not
grant relief when the Omission was wilful and
wanton, or attended with suffering or serious
inconveniences to the grantee, or there was
any good ground to apprehend a recurrence
of the failure to perform. * * , The case
might' occur where the refusal to afford daily
support would be wanton or wicked ; indeed,
where it might proceed from murderous in-
tentions even; and it is even supposeable
that the treatment of those who were the ob-
jects of the services should be such as to
subject the grantor to indictment for man-
slaughter, or murder even, and possibly to
ignominious punlshpient and to death. To
afford relief in such a case, for the benefit of
ihe heirs, would be to make the court almost
partakers in the offense. And the case, upon
^ the other hand, is entirely supposable, and
of not infrequent occurrence, where, through
mere inadvertance, a technical breach may
have occurred in the non-performance of
some unimportant particular, in kind or de-
gree, where, through perhaps mere difference
in construction, or error in judgment, one
may have suffered a forfeiture of an esttae at
law of thousand of dollars in value, where the
collateral service was not of a dollar's value,
and attended with no serious inconvenience
to ihe grantee. Not to afford relief in such

4» Rlchter v. Richter, 111 Ind. 456.



a case would be a discredit to the enlight-
ened jurisprudence of the English nation and
tiiose American States which have attempted
to follow the same model." ^

§ 15. Lien. — It has been held that an ob-
ligation to support the grantor for life cannot
be made the subject of a vendor's implied
lien,^^ But where a grant was made and a
mortgage, at the same time, taken back con-
ditioned to support the grantor, it was said
that it created a lien on the land for his sap-
port.**

§ 16. Divorce — Lien. — Where a husband
conveyed land to his children, his wife join-
ing with him and thereby releasing her in-
choate interest, with a condition subsequent
for a support of himself and wife * ^during
each of" their lives, which was accepted by
ihe grantees ; and after the conveyance, the
grantors were divorced, for the fault of the
wife, it was held that she was still entitled to
a support and had a right of entry, upon for-
feiture, although that right was reserved only
to the husband, and also had a lien on the
land granted. ^*The condition was a condi-
tion subsequent, and, if broken, ihe right
of entry, both by law and by the deed,
was secured to John Copeland. But this
was not the only remedy. The incum-
brance or charge upon the land for the
support of the grantors, and each of them
gave them severally a lien, by the enforce-
ment of which, in the proper action against
the land, the purposes of the conveyance as
to the grantors could be subserved. Both of
these remedies existed in John Copeland ; he
could waive the right of entry for condition
broken and enforce his lien by obtaining a
decree for the sale of the land. But the right
of thus enforcing her lien was the only rem-
edy for the appellee. While the marriage
relation existed, the recovery of the land and
resumption of title by the husband, for a
breach of the condition of the deed, would
have resulted in a complete remedy for the
appellee, for in such case her inchoate right

» Henry v. Tapper, 29 Vt. 858, 875.

<i Arlin y. Brown, 44 N. H. 102. See Cbate v. Peck,
21 N. Y. 581; McKllIip v. McKillip, 8 Barb. 552; Braw-
ley Y. Cawtron, 8 Leigh, 522; Hiecock v. Norton, 42
Mich. 320.

fi» Riohter Y. Richter, 111 Ind. 456; Blosnom t. Bail,
82 Ind. 115. Where the son was **to proYide for, main-
tain,*' etc, it was held that there was no Hen on the
land, bat only a personal liability. Taylor y. Lanier,
8 Marphy (N. C), 98; s. O., 9 Am. Dec. 599.



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of title woald have reinvested in her. But
since the relation of husband and wife has
ceased a resumption of possession by her late
husband for condition broken would be no
remedy for her, and nnless her lien Upon the
land for her support surviyed the dissolution
of the marriage and may still be enforced by
her, she is without a remedy. We believe
that the lien and the remedy for the enforce-
ment continued to exist in her. * * The
charge thereby becomes her separate prop-
erty or chose in action, and the subsequent
divorce of her husband from her did not and
could not, without her consent, affect her
righto.""

§ 17. Not Personally Liable. — ^The accept-
ance of a devise of land upon condition of
paying specific legacies, renders the devisee
personally liable, in addition to the lien they
are upon the land devised.^ But the usual
condition for support, unless there is an ex-
press stipulation providing for it outside the
lien that it is upon the land, does not impose
a personal liability upon the grantee or devi-

S 18. Accounting. — ^A court of equity on
setting aside a conveyance, because of a for-
feiture of the condition, will decree an ac-
counting. The grantee will be allowed for
the money he paid for the conveyance, for
the improvemento made, and all rest paid ;
and will be charged with the rente (including
any portion cleared by him) from the time he
went into possession, where the contract is' to
pay a certain rent." The fact of the im-
provemento cannot be used as a bar to the
action.*^ Where it was found that the per-
sonal property received by the grantee, and
disposed of by him, and the use of the farm con •
veyed, exceeded the amount of the indebted-
ness he was to pay for the grantor, and the
support furnished, and all money or other
things paid to or for him, it was held that the

A Copeland v. Ck>peUnd, 80 Jnd. 29. This case oon-
toins an exhaustlye discussion of tbe question. That
a wife cannot claim dower as against the mortgage
conditioned for her husband and her support. See
Hinds y. Ballon, 44 N. H. eao.

M Burch V. Burch, 52 Ind. 186; Lindsey v. Llndsey,
46 Ind. 652; Spaulding v. Hallenbeck, 85 N. Y. 204;
Tanner v. Van Bibber, 2 Dov. (Ky.) 560.

u Copeland v. Copeland, 89 Ind. 29; Wilson v. Wil-
son, 88 Cal. 18; s. c, 61 Am. Dec. 227. Contra, see
note 52.

M Leach v. Leach, 4 Ind. 628; Hershman v. Hersh-
man, 68 Ind. 461; Delong v. D^jlong, 66 Wis. 614.

« Wilson V. Wilson, 86 Ind. 472.



grantor was entitled to an accounting to as-
certain such excess, and to a Judgment there-
for when ascertoined.^

§ 19. A Substantial Performance Sufficient.
— ^A substantial compliance with the terms of
the contract or condition is sufficient, taking
into consideration the condition of the grant-
or.^ But in the case of a father and son, the use
by the latter to the former of a course of un-
filial treatment and cold neglect, coupled with
vulgar and profane use of language towards
him, is not a compliance with the condition,
although plenty of food and clothing is pro-
vided by the son.** **Conveyances of prop-
erty by aged and infirm people to their chil-
dren, in consideration of promised support
and maintenance, are somewhat peculiar in
their character and incidento, and must some-
times be dealt with by the courto on princi-
ples not applicable to ordinary conveyances.
A person incapaciated by the infirmities of
age for active pursuito naturally feels a strong
desire to place the fruito of his industry and
enterprise where they will secure him during
the remnant of his life a suitoble and proper
maintenance, without further care or labor on
his part. One thus situated also naturally
prefers to convey his property to his
child for that purpose, and that his child,
and not a stranger, should assume the obli-
gation to maintain him. Paternal affection thus
prompto him, and he relies upon the filial af-
fection of his child for the faithful and cheerful
performance of the obligation. And thus it
is that when an aged and infirm father con-
veys his property to his son in consideration
that the son shall care for and maintoin him
during the remainder of his life, elemento
enter into the transaction peculiar to such
cases. Such a transaction on the part of the
father is prompted often by necessity, always
by affection for and trust in the son to whom
he has transferred his means of support.
Besides, the age' and infirmity of the father
may unfit him in a degree properly to protect
his own interesto, and may render him sub-
ject to imposition. Hence it is that we sel-
dom find in such transactions evidence of
that deliberation and careful regard to self-
interest on the part of the father, which usu-
ally characterize ordinary business transac-
tions of the same magnitude. Because of



B Bresnahan v. Bresnahan, 46 Wis. 886.
w Spaulding v. Hallenbeck, 89 Barb. 79.



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these and other considerations peculiar to a
case like this, it is the duty of the son, and
he should regard it as his highest privilege,
fully to perform his agreement This is not
only a moral and religious duty, but it is a
duty of which a court of equity will take cog-
nizance, and grant proper relief for its non-
performance."**

§ 20. Waiver of Performance. — ^The ben-
eficiary may waive a performance by the
grantee, by refusing to receive the support.®
If the grantee does all the beneficiary will
permit him to do, although short of the con-
dition, he is released from a farther perform-
ance.** If the beneficiary waives a perform-
ance and dies his heir cannot take any advan-
tage of it, nor any one else.^ In determining
whether there has been a waiver, the condi-
tion of the grantor will be considered ; and if
he is not in a mental condition to waive the
condition, although his acts may amount to
that, it will be so held.^ If a judgment for
damage because of a breach is obtained,
there can be no claim of waiver made until
it is satisfied in full.^

§21. Possession of Land. — ^In case of a
conveyance and taking back a mortgage con-
ditioned for support, if nothing is said as to
who is to occupy the land, the mortgagor re-
tains possession ; for it is essential to enable
him to perform the condition.^ If the mort-
gage be followed by a lease of the same
premises for life given by the mortgagor to
the mortgagee, the lease is construed as
merely giving the mortgagee the use and
possession of the premises.^

§ 22. Beneficiary's Residence. — If there
be no place specified, the mortgagee or
^ Bowell y. Jewett, 69 Me. SCO.
« Bogle V. Bogie, 41 Wis. 209; see Leach v. Leacb,

4 iDd. 628.

tt Boone v. Tipton, 15 Ind. 270; Petro v. Casslday,
9 Ind. 289.

tt Rush r. Rash, 40 Ind. 88; Llndsey v. Lindsey, 46
Ind. M2.

« Petro V. Casslday, 18 Ind. 289; Clark v. Barton,
51 Ind. 165; Risley v. MoNlece, 71 Ind. 484; Boone v.
Tipton, 15 Ind. 270.

« Ricbter v. Richter, 111 Ind. 456. See section 18 for
a fuller report of this case.

M Leach v. Leach, 9 Ind. 271 ; Sanborn v. Woodman,

5 Cusb. 56; Jackson v. Topping, 1 Wend. 888; s. c,
19 Am. Dec. 515.

» Flanders v. Lampbear, 9 N. H. 201 ; Rboades v.
Parker, 10 N. H. 83; Dearbom'v. Dearborn, 9 N. H.
117; Brown v. Leach, 85 Me. 89; Bryant v. Ersklne, 55
Me. 158.

« Powers V. Patten, 71 Me. 588. See Stout v. Dun-
ning, 72 Ind. 848.



grantor (the beneficiary) may live where'er
he list, creating no needless expense.** The
grantee or mortgagor cannot insist that he is
to furnish the support only at the residence
on the premises granted or mortgaged.^ If
it is provided that the grantor is to live on
the premises, and that the grantor may also
occupy them, the latter cannot insist that the
former must eat at the table with him ; and
such grantor is entitled to have his meals fur-
nished at a separate table in a separate room.
A failure to do so is a breach of the condi-
tion.^ So it is said that the condition of the
mortgage is broken by a refusal to pay for
the mortgagee's board at a suitable place,
even though no special demand for such sup-
port is made for the mortgagor.^ A condi-
tion to provide a home in the house on the
premises does not require the mortgagor to
supply food, clothing or fuel; and the fact
that he does so for a while does not render
him liable thereafter for them; but if the
house burn down or so fall into decay as not
to be worth repairing, he must still provide
the home on such premises, even though he
himself has moved away.^ A mortgage by a
son to his mother was conditioned *^to pro-
vide a horse for said Margery to ride to meet-
ing and elsewhere, when necessary ; find her
firewood for one fire, to be drawn and cut at
the door, fit for use ; give her a good cow,
and keep said cow for her during the natural
life of her, the said Margery." It was held
tl^at the destruction of the house in which the
mother lived with the son did not exempt him
from performing the condition, and that he
was bound to furnish the wood at such a
place as she made her home, within a reason-
able and convenient distance; and if the
mortgagee was obliged to sell the cow in con-
sequence of its not being properly kept, it
was not necessary, in order to charge him
with the cost of keeping a cow for the time
subsequent to the sale, for the mortgagee to
purchase a cow and tender her to the mort-
gagor to be kept.^* In proving a breach of
a contract to support, it is not sufficient to

•wilder V. Wblttemoro, 15 Mass. 262; Tbayer v.
Rlcbards, 19 Pick. 898; Copeland v. Copeland, 89 Ind,
29; Flanders v. Lampbear, 9 N. H. 201; Rowell y.
Jewett, 89 Me. 298; Borst v. Crommle, 19 Hun, 299.

w Rowell V. Jewett, 89 Me. 293.

Ti Hubbard v. Hubbard, 12 Allen, 586.

n Pettee v. Case, 2 Allen, 546,

w Gibson v. Taylor, 6 Gray, 810.

74 Flske y. Flske, 20 Pick. 499.



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show that the beneficiary left the hoase of the
obligor and elsewhere resided for several
years, no request being made by him for a
fulfilment of the agreement, nor any mani-
festation to the obligcMT being made of an in-
tention or desire to hold him to the perform-
ance.'*

§ 23. Same — Continvsd. -If the agree-
ment is to support at a given house, or on the
re^l estate conveyed or mortgaged, then sup-
port elsewhere cannot be insisted upon, un-
less the conduct of the obligor is such that
a person of reasonable endurance cannot be
expected to tolerate it, and this is true even
though the beneficiary is a minor and he is
taken away by his guardii^n.'^ Where the
obligation was ^'to provide for and maintain"
the beneficiary, but the agreement was silent
as to where he should reside and receive the
support, it bound the obligor to provide for and
maintain the beneficiary in a suitable manner,
not, however, requiring that he should take
him to his own house to reside, nor that the
beneficiary should necessarily go there to re-
ceive his support or be deprived of it. ^^A
provision for his support in a suitable family,
where he would be properly nursed and cared
for by those not obnoxious to him, would
comply with the agreement. And so, if the
appellant made such provision at his own
house, and if it was a suitable and proper
place for him to reside, and he could have
lived there in harmony and would there have
received the proper care and attention and
had all his wants supplied, it was his duty to
make that his home ; and if he refused to do
so, wi^out cause, and voluntarily went else-
where to live, the appellant would not be lia-
ble for his board and personal care during
such absence. It would be otherwise, how-
ever, as to his clothing and necessary ex-
penses for medical services when sick." ^
Where the contract of a son was to maintain
his mother **on" the real estate conveyed, it
was held that he was bound to provide her
with maintenance ''on" the land conveyed by
her to him, and not elsewhere.^^ Where a
brother and sister conveyed the land they

n Jenkf ns y. Stetson, 8 Allen, 128.

f* Green v. Green, 82 Ind. 276.

n Blossom y. BaU, 82 Ind. 115. See Lesch y. Leaob,
4 Ind. 628.

ra Graham y. Castor, 55 Ind. 559. See Craven y.
Bleakney, 9 Watts, 19; Wustbofl v. Dracourt, 8 Watts,
245.



were living upon, and took back a mortgage
conditioned that the mortgagor provide for
them ''both in sickness and in health, good
and proper food, medicine and clothing, with
proper and kind care and nursing, during
their natural lives, together with fuel for each
of them prepared and housed for their fires,
and suitable board, and care for a horse for
their own use; and the said Charles [the
brother] is to have, use >nd occupy the west-
erly front room of the house below, and the
southeas^rly chamber, for his own separate
use during his natural life ; and the said Julia
[the sister] to have, use and occupy the south-
westerly front room of the house (when built)
for her own and separate use during his nat-
ural life," it was held, by a divided court, the
addition having been built, by the grantee,
to the house, according to his agreement, at
considerable expense, and he being under an
obligation not to dispose of the house during
the lives of the sister and brother, that they
were not entitled to support elsewhere than
in the house.^ Where by a will th^ testator's
wife was to have her living "off of the farm,"
and it was specified that the devisee "is to
let my wife have the hc^se in which I now
live, while she lives ; he is also to furnish her
with everything that is necessary while she
lives," it was held that the testator contem-
plated, upon his death, that she would con-
tinue to reside in the house, and there receive
her support, yet if she refused to reside there,
and preferred to reside elsewhere, the duty
of the devisee was to pay her whatever sum
of money it was worth to support her on the
farm and no more.^

§ 24. AUemative Condition. — Where a
mortgage was conditioned to pay a certain
sum or to support the mortgagee, it was held
that the mortgagor has his election which al-
ternative he would take ; and if he elected to
furnish support, he was entitled to the pos-
session of the premises, in order to be enabled
to comply with the condition he had chosen
to perform. Having made the election, be
could not revoke it ; and such election was
binding upon the mortgagee, who having re-
ceived a part performance of the one could
not insist upon a complete performance of the

n Dewelley v. Dewelley,143 Mass. 509; s. c, 10 N.
E. Bep. 468.

so Tope y. Tope, 18 Ohio, 520; Korne v. Some, 8 S.
W. Bep. 17.



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other conditioD.^ The election having been
made, the mortgage became surety for the
performance of the condition.^ Where a
mortgage was conditioned to secure the pay-
ment of $500 in five years, *Ho be paid in
furnishing the mortgagee," during that pe-
riod, ^*a good and sufficient home and sup-
port," it was held that the mortgagor did not
have his election to pay in money.^

§ 25. Who Toay Perform, — ^A contract to
support is a contract for personal services ;
it cannot be performed by another, tinless the
person receiving the support consents to re-
ceive it ; and if the person who is to furnish
the support die, then his heirs, executors or
administrators must keep it, and while the
condition is in force, the administrator can-
not dispose of the property to pay debts of
the deceased.^ Nor can the person who is to
receive the personal service assign the obli-
gation and security to another, so as to en-
able that person to enforce it, unless, per-
haps, where there has been an actual breach
and an eittry for condition broken before as-
signment.^ The creditors of the obligor
cannot sell the land conveyed, nor take the
possession of it ffom him.^ But he may
mortgage the land, if the mortgage does not
defeat the condition.^

u Bryant v. Erskine, 55 Me. 153.

»See Farblsh v. Sears, 2 Cliff. 454.

^ Hawkins v. Clermont, 15 Mich. 511. See Evans v.
Korris, 6 Mfefa. 869.

M Eastman y. Batchelder, 8d N. H. 141; s. c, 72 Am.
Dec. 295; Bethlehem y. Annis, 40 N. H. 84; s. C, T7
Am. Dec. 700.

» Bryant y. Erskine, 55 Me. 158; Bethlehem v. An-
nis, 40 N. H. 84; 8. c, 77 Am. Dec 700; Dewelley v.
Dewelley, 143 Mass. 509; s. c, 10 N. E. Rep. 468. See
Hopper y. Oldls, 42 N. J. £q. 120; 8. C, 7 Atl. Bep.
849, for a case of unusual circumsunoes.

w Eastman y. Batchelder. 86 N. H. 141; s. c, 72 Am.
Dec. 295.

^ Id, Bight of entry in ease condition should be
broken at a future time Is not an assignable interest.
Bethlehem y. Ann!?, 40 N. H. 84; s. c, 77 Am. Dec.
700. Where a father agreed to will a son a certain
Xarm if he would support him and his wife, it was
held that if the son carried out the contract it was a
hioding agreement, and an inyalid deyise of the farm
to the son did not defeat his right to it. Hiatt y.
Williams, 72 Mo. 214; s. c, 87 Am. Bep. 488, citing



Online LibraryAugustus John Cuthbert HareThe Central law journal, Volume 28 → online text (page 86 of 151)