
    JOSEPH BARNES vs. JOHN P. BARNES.
    Deeds; Consideration; Trusts; Equity; Fraud.
    1. When one person conveys to another his property in consideration of a promise of support the duty of rendering the consideration for which the donee holds the property does not cease until the donor refuses to receive it; such support must be offered and not left to be asked.
    2. One of the necessarily implied obligations of an engagement to furnish support during the lifetime of a grantor, is the duty of decent burial.
    3. Conveyances of this kind are substantially trusts, and the failure of the donee to meet his obligation renders his continued possession of the property a violation of the trust.
    In Equity.
    No. 12,467.
    Decided March 28, 1892.
    The Chiee Justice and Justices Cox and James sitting.
    Hearing on appeal by complainant from decree of the Special Term.
    
      Reversed.
    
    The case is stated in the opinion.
    Mr. T. A. Rambert for complainant, (appellant):
    The jurisdiction of equity to afford the relief prayed for is well established. Huntington vs. Bailey, White & Tudor, R. C. Pt. 1, Vol. 2, 608-610; Story Eq. Jur., Secs. 692, 693; Boyce vs. Bogie, 41 Wis., 209; Bresnahan vs. Bresnahan, 46 Ib., 385.
    And has been recognized by this Court in recent years and in a proceeding'strikingly similar to the case at bar. Diggins vs. Doherty, 4 Mackey, 172.
    The legal competency to prove a valuable consideration other than that which is expressed in the deed is conceded by this court in case of Diggins vs. Doherty, supra, and may be regarded as settled law.
    The continuing nature of a like consideration was also-recognized by this Court in the case of Diggins vs. Doherty.
    Messrs. Cook and Suthereand for defendant, (appellee):
    
      The attempt on the part of the complainant is not to add to the consideration mentioned in the deed, but to wipe it out entirely and substitute an entirely different consideration, one not pecuniary in its nature, but affectional and personal or paternal and filial.
    How far may this be done? In Bank vs. Hitz, 1 Mackey, pp. 111, 130, this question is considered.
    It is there held that a consideration different in kind from that mentioned in a deed cannot be shown.
    The Supreme Court of the U. S., in 111 U. S., p. 727 (Hitz vs. The Bank), disagreed with the view of this court in that case (perhaps because of its facts), but seem to admit that an actual contradiction or variation of the consideration could not be allowed.
    And in Richardson vs. Traver, 112 U. S., pp. 430, 431, Mr. Justice Waite, in delivering the opinion of the court, says: * * * “It is elementary learning that evidence may be given of a consideration not mentioned in a deed, provided it be not inconsistent with the consideration expressed in it.”
    The answer must be regarded (without reference to the testimony) as conclusive in itself as against each essential averment of the bill, and must remain in full force unless its denials are overcome by the evidence of two witnesses, or of one, and pertinent circumstances equivalent to the testimony of a second witness. 3 Green. Ev., Secs. 284, 285; Virgil vs. Hopp, 104 U. S. 441; Hughes vs. Blake, 6 Ills., 453; Rawson et al. vs. Lyon et al., 23 Fed. R. 107, 109.
    Are the direct and positive denials so overcome ?
    On this point a reference to two cases from the District of Columbia may be important. Hitz vs. National Metropolitan Bank, 111 U. S. p. 727; Conley vs. Nailor, 118 U. S. 134.
    But apart from this established and inflexible rule (too often overlooked) in an action to rescind or set aside a deed (such as the present), the evidence in support of alleged fraud, mistake, etc., must be of the “ clearest and most satsifactory ” character, “free from doubt,” “convincing,” “full,” etc.
    
      Ivison vs. Hutton, 98 U. S. 83; Snell vs. Insurance Co., 98, 99, 90; Howland vs. Blake, 97 U. S. 626; Insurance Co. vs. Nelson, 103 U. S. 548; Young vs. Duval, 109 U. S. 576; Ogelvie vs. Knox Ins. Co., 22 How. 380.
    There is a presumption in favor of the deed — its consideration, its integrity — which must prevail in the absence of “full, clear,” conclusive proof against it, and the burden of proof is on the complainant — the “actor,” the “mover.” 1 Parson on Contracts (6th Ed.), *p. 429, foot p. 450; Jenkins et al. vs. Pye et al., 12 Pet. U. S. p. 252, 253; Patterson vs. Jenks et al., 11 Pet. 226, 227.
   Mr. Justice James

delivered the opinion of the Court:

The complainant seeks a rescission of his former conveyance of a lot of land, containing about two acres, near Rock Creek Park.

It appears that the complainant was an old man at the time of this conveyance, that this little patch and the house on it were all the property he possesed, that his old wife was living, and that the defendant was one of their four adult children. The consideration stated in the deed is one hundred dollars, but the scrivener who drafted it testifies that the defendant, by whom he was employed, told him, at the time, that he was to support the old people for the remainder of their days. The defendant denies that he said this was the consideration of the conveyance, and declares that he only said he was willing to support them. We believe the scrivener. The old man, though obstinate and queer, does not appear to have been silly. It is incredible that he should sell everything he had for a hundred dollars, while it is natural that he should do so for a support. We believe the scrivener.

At the time of this conveyance, and for nearly two years afterwards, the defendant was not living with the old people nor on the premises. A daughter, with her husband, lived in the house with them. When they learned that this conveyance had been made they moved away, and the defendant, with his family moved in.

We are satisfied that the defendant had done nothing before that time for the support of the old people, but there is some dispute about the extent to which he did so after moving into the property. The mother became bed-ridden, and it appears that the old man alone ate at the defendant’s table. For some reason he ceased to do so, and retired to the single room which constituted his part of the house, and there he cooked meals for himself and his wife so long as she lived, and after her death for himself. The defendant claims that this was a whim of the old man’s, and that the latter substantially refused to be supported. It does not appear, however, that the defendant, ever offered to look after the old people after his father withdrew, and it is pretty plain that they were simply left to take care of themselves. The son’s obligations in such a case could not cease until an actual, sincere tender of service was made and refused. The duty of rendering the consideration for which he held the land could not cease until he should be prevented by the other party from performing it. That principle is recognized in numerous cases of this kind. In one of them, reported in xst Ohio State, it was distinctly held that the due support must be offered, not left to be supplicated. The defendant in the present case can- hardly be credited with 1 ‘readiness and willingness” to furnish such support when we find that the complainant continued to cultivate the patch on which both were living, precisely as he had done before the defendant came there, and obtained other means of support by making meat skewers for butchers. We do not perceive that any burden of life was lifted from the old man’s shoulders by the actual situation.

Among the unexpi'essed, but necessarily included obligations of this kind of engagement, to furnish support during the remaining days of a grantor, is the duty of decent sepulture; but we find that, when his mother died, the defendant contributed only half of the forty dollars which her burial cost, while the complainant furnished the other half. With the estate which would have borne this expenditure he took the burden. Nothing in this case is more significant of readiness on the defendant’s part to allow the complainant to continue the struggle of life.

At last the friends of the complainant advised him that he could have rest and relief at the home of the Ifittle Sisters of the Poor. After considering their suggestions for some days he went there. For a whole year the defendant, who was still living on what should have been the old man’s means of self support, did not visit him in his refuge to learn whether he would return. His explanation was, that his father would do just as he pleased anyhow, and it was no use to go. When this bill was filed he did go. It seemed worth while then to try the firmness of this alleged willfulness.

It would be unreaspnable to apply a delicate standard to lives pinched by hardship, but we are required to enforce the plain obligations of trust; and conveyances of this kind are regarded substantially as trusts. One who receives property under an obligation to furnish the donor a support from that source must hold it for application to that duty, and if he refuses or fails to so apply it, his continued possession is a fraud.

Without imputing any conscious fraud in this case, we think this defendant’s retention of the property conveyed to him by the complainant is a violation of the trust on which he received it, and that it should be restored. 7he decree below is reversed and a decree will be framed according to this opinion.  