Summary
In Stehle v. Stehle (supra), upon facts somewhat similar to those here presented, the trial court dismissed the complaint upon the ground that no demand for support had been shown, but the judgment was reversed on the ground that it was the defendant's duty to furnish support as the consideration for the deed, without any demand.
Summary of this case from Kinney v. KinneyOpinion
March Term, 1899.
C.C. Werner, for the appellant.
D.W. Forsyth, for the respondents.
The leading theory of the complaint seems to be that the consideration for the premises had not been rendered to the plaintiff, and that the deed made by her and her late husband to the defendants ought to be set aside. There was no return of any consideration or benefits received by the plaintiff or her husband under the deed, nor was there any allegation in the complaint of fraud or mutual mistake, and in that aspect the action ought not to be maintained. However, the defendants have not paid the consideration which they agreed to for the premises. They expressly stipulated, when they accepted the deed, to support the grantors during their natural lives. The fact that one of the grantors has died does not relieve the defendants from the obligation to support the surviving grantor. As the trial judge has stated, it was the duty of the defendants to support the grantors during their natural lives, as the defendants had assumed to do by the provision in the deed which has been referred to.
The complaint states the facts and circumstances attending the execution of the deed, and it contains a prayer in the alternative. The prayer first demands that the deed be set aside, "or in the alternative that the support and maintenance of plaintiff be declared a charge and lien upon said premises and that the said property may be decreed to be sold and the proceeds invested to be used for the support and maintenance of plaintiff." It appears by the evidence that the defendants have failed to perform the obligation assumed by them when they took the deed. The "support" of the grantors, stipulated for in the deed, was a part of the purchase price which the defendants agreed to pay for the premises.
The plaintiff is seventy-nine years of age. The evidence does not enable us to say what would be a fair and reasonable amount to be allowed her for her support during the continuance of her natural life. When the proper amount is ascertained which should be allowed to her for her support, the same should be a charge upon the premises conveyed to the defendants, and that sum, when ascertained, should be declared to be a lien upon the premises.
We think the judgment should be reversed and a new trial ordered, and the Special Term directed to ascertain what reasonable sum should be allowed to the plaintiff for her support; and that when such sum is ascertained, it should be declared to be a lien upon the premises, and the defendants be given reasonable opportunity to pay the same, and in default of their compliance with the decree to be made in the premises, the payment thereof should be enforced by a sale of the premises, and out of the proceeds of such sale the sum so ascertained to be necessary for her support should be payable, together with the costs of this appeal.
FOLLETT, J., not sitting.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.