Grimmer v. Carlton

Foote, C. This action was brought to cancel a deed made by Mrs. Grimmer, the plaintiff, to her daughter, Mrs. Carlton. The case comes here upon the judgment roll alone.

From the pleadings it appears that the main issues-are two: 1. Whether or not the deed had been obtained by the fraud and misrepresentations of the defendant; 2. Whether or not the true consideration for the making and delivery thereof was expressed in the deed; and if not so expressed, if it, as set out in the pleadings, was an enforceable contract and sufficient to support the deed.

The court found in favor of the defendant as to the issue of fraud and misrepresentations, but found for the plaintiff, that the true consideration was not stated in the deed; that it was a consideration based upon a verbal agreement that the defendant, in consideration of the making and delivery of the deed, would support and maintain her mother, the plaintiff, for the balance of her natural life, and, in effect, that such a proposed consideration, not being enforceable, was no consideration at all; and adjudged, therefore, that the deed should be canceled, and the defendant enjoined from selling the property described in the deed, which it is alleged she intended to do. From that judgment, this appeal is taken.

Taken altogether, we see no conflict in the findings, and no error in that respect. Nor do we perceive that the court erred in giving judgment upon the findings for the plaintiff.

The proposed consideration, as the true and only consideration, if any existed, mentioned therein, is found to be no consideration in the sense, as we understand [193]the findings, that the agreement upon which it was based was not an enforceable contract, and therefore the deed should be canceled. The findings also negative, by finding what the true consideration was, the existence of any other to support the deed.

But it is claimed that by the admissions of the answer to the cross-complaint it is shown that the contract to maintain and support the plaintiff was partially performed.

We do not think this position correct. The answer to the cross-complaint specifically denies that there was any such agreement made as the latter pleading sets up; and if that is denied, the fact set out in it, that the plaintiff was supported by the defendant, if admitted by the pleadings, is not an admission that it was in pursuance of the agreement the existence of which is denied.