
    No. 2538.
    Stanton v. Allen.
    November Term, 1889.
    On October 30, 1886, plaintiff, a widow of about 60, living alone on her farm of 34 acres and possessed of some personalty, executed an agreement whereby she professed to lease said farm to her niece, Sarah A. Allen, and husband, “to hold for a term during my natural life; and the said Samuel D. Allen and S. A. Allen promises and agrees to let the said Charlotte Stanton occupy and remain with them as one of their family during her life-time, and obligates to take care of her during sickness and health, also to support and sustain and pay all necessary expenses pertaining to her welfare and happiness during her life, to pay all doctor’s bills and taxes on said premises as above stated, and not to permit any other person or persons to occupy the same or any part thereof during her life, and if the said Samuel D. Allen and S. A. Allen, lessees, shall fail to comply with the above agreement as aforesaid, they will vacate and leave said premises without any recourse of law whatever.”
    The Allens not being willing to remove from their home in North Carolina on these terms, plaintiff executed and delivered, on November 4, 1886, a deed of gift to “Sarah A. Allen and the natural lawful heirs of her body and their assigns forever, all of my real estate, consisting of 34 acres of land on which I now reside, * * * also all my personal effects that I may own or possess at my death, together to have and to hold all and singular the said premises belonging or in any wise incident or pertaining, unto the said S. A. Allen and the heirs of her body. To have and to hold all and singular the said premises before mentioned, unto the said S. A. Allen, her heirs and assigns, against myself, my heirs, and all persons lawfully claiming or to claim the same, or any part thereof; provided, the Samuel D. Allen, and wife, Sarah A. Allen, conform strictly to and with certain agreements entered into with me on the 30th day of October, 1886, in regard to my support during my life-, then this deed of conveyance is to remain in full force and effect, and to take effect at my death ; and in case of a non compliance on the part of Samuel D. Allen and Sarah A. Allen as per agreement, then this deed shall be of no effect and null and void, otherwise in full force and effect.”
    The Allens thereupon took possession, and they and plaintiff lived together until October, 1887, when plaintiff left, and complaining of bad treatment and non-support, demanded judgment inter alia for a cancellation of the deed of gift. On testimony heard by him, the Circuit Judge (Pressley) held that defendants had performed the conditions of the gift, and that the deed had not become void. Pie further held : “My construction of said deed is, that plaintiff is entitled to the possession of her personal property during her life-time ; she is also entitled to return to her home, and to receive there all the respect and attention due to her age and circumstances, and her reasonable support.”
    Plaintiff appealed. Held—
    1. Where there is much conflict of testimony (as in this case), this court will rarely, if ever, disturb the finding below. The finding affirmed.
    2. Under this finding of fact, there was no error in decreeing that defendants were entitled to retain possession of the land. Receiving a boarder into the family did not violate the condition “not to permit any other person to occupy the same.”
    3. The point that the deed conveyed nothing in presentí was not raised in the pleadings nor considered on Circuit, but even if the legal title did not pass in presentí, the defendants were entitled to take immediate possession under the terms of the deed and the incorporated agreement, and to retain such possession so long as they complied with their covenant to support and care for plaintiff.
    Judgment affirmed.
    February 20, 1890.
    
      T. W. Bouchier and Townsend MeLaurin, for appellant.
    
      Knox Livingston, contra.
   Opinion by

Mr. Justice MoIver,  