The demurrers were properly overruled. Kennedy v. Kennedy, 2 Ala. 571; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Johnson v. Chamblee, 202 Ala. 525, 81 So. 27 (overruling Gardner v. Knight, 124 Ala. 273, 27 So. 298). The legal remedy is inadequate.
Either for fraud in procurement or for failure to comply with its terms and conditions, either precedent or subsequent, a conveyance founded upon love and affection, support and maintenance, etc., may be annulled for a breach thereof. Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Johnson v. Chamblee, 202 Ala. 525, 81 So. 27; Phillips v. Sipsey C. M. Co., 218 Ala. 296, 118 So. 513. See Summers v. Summers, 218 Ala. 420, 118 So. 912; Evans v. Evans, 200 Ala. 329, 76 So. 95. There was no error in the decree rendered.
Where the grantee is active in procuring the conveyance, a presumption of undue influence is raised, and casts on the grantee the burden of showing the transaction was in every respect fair and equitable. Keeble v. Underwood, 193 Ala. 582, 69 So. 473; Scarbrough v. Scarbrough, 185 Ala. 468, 64 So. 105; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St. Rep. 904. The contract not having been carried out as it should have been, equity assumes jurisdiction to cancel the deed given for a consideration that has not been provided according to the agreement. Russell v. Carver, 208 Ala. 219, 94 So. 128; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Mooney v. Mooney, 208 Ala. 287, 94 So. 131; Hyman v. Langston, 213 Ala. 685, 105 So. 889; Id., 210 Ala. 509, 98 So. 564. PER CURIAM.
Mrs. Wade asserts that J.L. Wade's conveyance of his interest in the real property at issue to the Alexanders was properly declared void on the basis of a failure of consideration because, she says, Alexander breached his promise to support her after J.L. Wade's death. Although the parties presented some evidence pertaining to this issue, neither the trial court's comments during the ore tenus proceeding nor its judgment indicates that this ground for relief was addressed. "In cases involving conveyances made before the effective date of the statutory provisions now codified at § 8-9-12, the Alabama Supreme Court applied the rule that `either for fraud in the procurement of the conveyance, or for a failure to comply with its terms and conditions, either precedent or subsequent, a conveyance, founded upon love and affection, support, and maintenance, etc., may be annulled for a breach thereof.' Morrow v. Morrow, 213 Ala. 131, 132, 104 So. 393, 393 (1925). Of course, McAdory [v. Jones, 260 Ala. 547, 71 So.2d 526 (1954),] holds that this preexisting equitable remedy of cancellation is not available where a material part of the consideration was a promise to support the grantor for life, as that equitable remedy has been replaced with the absolute statutory right to cancel the conveyance without proof of fraud or failure of consideration.
Lipscomb Lipscomb, and L. Herbert Etheridge, Bessemer, for appellees. The bill in this case is not filed under Code 1940, Tit. 20, § 15, but under the broad jurisdiction of the court of equity to cancel deeds given for a subsequent consideration which was never complied with. Mooney v. Mooney, 208 Ala. 287, 94 So. 131; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; Russell v. Carver, 208 Ala. 219, 94 So. 128; Hannah v. Culpepper, 213 Ala. 319, 104 So. 751; Thompson v. Lee, 216 Ala. 493, 113 So. 313; Branford v. Shirley, 238 Ala. 632, 193 So. 165; Id., 241 Ala. 314, 2 So.2d 403; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Craig v. Craig, 219 Ala. 77, 121 So. 86; Massey v. Massey, 246 Ala. 396, 20 So.2d 790; Sewell v. Walkley, 198 Ala. 152, 73 So. 422; Petty v. Chamberlain, 253 Ala. 453, 45 So.2d 161. PER CURIAM.
" 'The books abound with cases where the aged, weak, or afflicted had improvidently executed conveyances upon the promise of support. Johnson v. Chamblee, 202 Ala. 525, 81 So. 27; Russell v. Carver, 208 Ala. 219, 94 So. 128; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Hunter v. Watters, 226 Ala. 175, 145 So. 472; 18 Corpus Juris 169. " 'Frequently there was injustice and fraud, but often this was difficult of proof, and the grantor led into the transaction by the tempting promise of food and shelter.
However, since the bill is sufficient in other respects and contains a proper prayer, this superfluous request for unwarranted relief does not render the bill demurrable but will simply be disregarded. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Thomas v. Skeggs, 213 Ala. 159, 104 So. 395; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; White v. Lehman, 210 Ala. 542, 98 So. 780; Staton v. Rising, 103 Ala. 454, 15 So. 848. The remaining grounds of demurrer challenge the description of the alleged right of way as too indefinite to form the basis of a decree, but in this we cannot agree.
Conveyance founded on love and affection or support and maintenance may be annulled for fraud in its procurement, and fraud may be imputed to course of conduct which will work fraud on confiding grantor. Lewis v. Owen, 231 Ala. 480, 165 So. 229; Morrow v. Morrow, 213 Ala. 131, 104 So. 393. If grantor intended to reserve to himself locus poenitentiae, there is no delivery of deed. Crosby v. Baldwin County, 227 Ala. 122, 148 So. 814; Brake v. Graham, 214 Ala. 10, 106 So. 188. Grantee's failure to pay indebtedness after promise to do so may be ground for cancellation of deed on account of fraud. Williams v. Williams, 238 Ala. 637, 193 So. 167. Complainant is entitled to cancellation of deed for fraud of grantee misrepresenting consideration.
"The books abound with cases where the aged, weak, or afflicted had improvidently executed conveyances upon the promise of support. Johnson v. Chamblee, 202 Ala. 525, 81 So. 27; Russell v. Carver, 208 Ala. 219, 94 So. 128; Ballenger v. Ballenger, 208 Ala. 147, 94 So. 127; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Hunter v. Watters, 226 Ala. 175, 145 So. 472; 18 Corpus Juris 169. "Frequently there was injustice and fraud, but often this was difficult of proof, and the grantor led into the transaction by the tempting promise of food and shelter.
Ira D. Pruitt and Geo. O. Miller, both of Livingston, for appellee. The averments of the bill as to fraud are sufficient. Olson v. Olson, 200 Ala. 56, 75 So. 313; Morgan v. Gaiter, 202 Ala. 492, 80 So. 876; Morrow v. Morrow, 213 Ala. 131, 104 So. 393; Bank of Hartford v. Buffalow, 217 Ala. 583, 117 So. 183. Complainant could not secure adequate relief in a court of law, the fraud alleged not going to the execution of the deed. Equity has jurisdiction in this case.