Opinion
5 Div. 955.
January 13, 1927.
Appeal from Circuit Court, Elmore County; Geo. F. Smoot, Judge.
Holley Milner, of Wetumpka, for appellants.
A bill seeking cancellation of an instrument which does not offer to do equity is demurrable. Stewart v. Stewart, 205 Ala. 340, 87 So. 799; 9 C. J. 1241, 1207; Russell v. Carver, 208 Ala. 219, 220 (dissent), 94 So. 128. Such a bill must set out the facts with certainty showing the right to declare the instrument forfeited. 9 C. J. 1232.
Huddleston Glover, of Wetumpka, for appellee.
Equity will intervene to cancel contracts of the type here involved for fraud in procurement or when the grantee fails or refuses to perform his obligations. Hannah v. Culpepper, 213 Ala. 319, 104 So. 751; Morrow v. Morrow, 213 Ala. 131, 104 So. 393. No offer to do equity is necessary to the bill. 9 C. J. 1242; Stewart v. Stewart, 205 Ala. 340, 87 So. 799.
This is a bill in equity by C. C. Harris against S. F. Holley and wife to cancel a contract made by him with S. F. Holley, which was also signed by Holley's wife, by which complainant agreed to deliver all of his property to him and to convey to Holley all of his property at his death in consideration of his caring for complainant and his wife during their lives. The respondents demurred to the bill of complaint, the court by decree overruled the demurrers, and the respondents appeal from that decree and assign it as error.
It appears from the averments of the bill that complainant owns 22 acres of land upon which was located his home and some personal property. He is now 82 years of age. On the 17th of June, 1921, he and S. F. Holley entered into a written contract, which is made part of the bill by exhibit, which was signed by them and by the wife of each. The contract has been recorded and a copy of it appears in the report of the case. M. R. Holley, wife of S. F. Holley, is a daughter of complainant. After the execution of this contract, the respondents moved into the home of complainant on this land went into possession of this real and personal property, and are still in possession of all of it. Complainant and his wife lived in this home with the respondents until the death of complainant's wife, on the 4th of May, 1924, and he continued to live there until October 1, 1925, when he left the respondents and his home and has not lived there or with them since. The respondents are in possession of this property, refuse to give it up to him, pay him nothing for the use of it, and this is all of the property owned by him.
The breaches of the contract are averred in the bill as follows:
"Complainant further avers that during the time from, to wit, June 17, 1921, to, to wit, May 4, 1924, respondents did not fully support and did not properly care for complainant and his said wife, the said S. A. Harris, and that during the time from, to wit, May 4, 1924, to, to wit, October 1, 1925, the respondents did not properly care for complainant in this, to wit, that during said last-named time complainant was subject to have, without warning, certain 'spells' and would fall and would have to be helped up by some person other than himself, and the respondents well knowing this condition of the complainant, on numbers of occasions, left the complainant at his home by himself and stayed miles away for hours at a time, did not furnish complainant with suitable food, and when complainant talked to respondent M. R. Holley about the care and treatment he received she invariably replied to complainant by abusing him with insulting language, and complainant avers that neither of the respondents provided him a way to attend his church as he was accustomed to do, and complainant avers he was mistreated by the respondents in other ways than has just been alleged."
The respondent S. F. Holley agreed in the contract to look after and care for complainant and his wife; to furnish them with food and wearing apparel so long as either of them shall live.
The facts alleged in the bill are sufficient to show the breaches of the contract by the defendant S. F. Holley. The contract calls for continuous personal acts and services to be rendered by him for complainant and his wife. The remedy at law for the various breaches of it by continuous suits would be inadequate. It has been held that relief may be obtained in equity by canceling such contracts when so breached. So we must and do hold there is equity in the bill and the facts alleged are sufficient to show breaches of the contract by the respondent S. F. Holley; and if true to authorize the court to cancel the contract. Mooney v. Mooney, 208 Ala. 287, 94 So. 131; Russell v. Carver, 208 Ala. 219, 94 So. 128.
The averments show a performance by complainant of his part of the contract as far as it is practical at this time. He permitted the respondents to come into his house, and they are still there. He turned over to them all of his property, and the bill avers:
"That the respondents are still in possession of his said property and his said home and refuse to give it up to him."
A decree ordering specific performance of such contracts is not practical, as the contract calls for continuous acts of personal service. The complainant having performed now, as far as practical, his part of the contract, it was not necessary for him to directly offer to do equity. Authorities supra.
It is true that M. R. Holley's name does not appear in the body of the contract, but she signed it, and the bill avers she is in possession of the property with her husband, and they refuse to give it up to the complainant. This would make her a proper party respondent. Authorities supra.
The decree, overruling the demurrers to the bill of complaint is free from error, and it is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.