
    KOZELSKI et al. v. BRONDER.
    (No. 7813.)
    Court of Civil Appeals of Texas. San Antonio.
    July 2, 1927.
    Rehearing Denied July 23, 1927.
    1. Deeds 19 — Mere failure of grantee to perform promise made in consideration for conveyance wifi not generally entitle grantor to cancel deed; “covenant.”
    As general rule, mere failure of grantee to perform a promise forming whole or part of consideration which induced conveyance will not warrant rescission or cancellation of deed by grantor, as promise to do something in the future is “covenant,” not condition subsequent.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Covenant.]
    2. Vendor and purchaser <&wkey;270 — Retention of vendor’s lien until conditions of deed should be fully met gives vendor right to forfeiture on nonperformance.
    Where deed recites that 'vendor’s lien is retained until conditions described in deed shall be fully met, vendor is entitled to have title forfeited for nonperformance by purchasers of promises made in deed, though money consideration has been fully paid.
    3. Deeds <3=^19 — Grantor retaining vendor’s lien held not entitled to rescind deed for grantees’ ■ nonperformance of promises to make improvements and to provide care, where grantor prevented grantees’ performance.
    Grantor, giving deed in consideration of cash payment and erection by grantees of improvements and for care and medical attention to be given grantor during her lifetime, held not entitled to rescission or cancellation of deed on account of nonperformance of conditions, notwithstanding retention of vendor’s lien until conditions should be performed, where grantor retaining possession attempted to prevent erection of improvements and refused offers of care and support.
    Appeal from District Court, Karnes County ; W. O. Murray, Jr., Judge.
    Action by Frances Bronder against Julia Bronder Kozelski and husband. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.
    O. F. Burney, of Floresville, and T. B. Smiley, of Karnes City, for appellants.
    D. O. Klingeman, of Karnes City, for ap-pellee.
   FLY, C. J.

This is an action of trespass to try title to 108 acres of land, instituted by ap-pellee against appellants, coupled with a suit to cancel a certain deed to 50 acres of the 108 acres of land executed by appellee to appellants; it being alleged that tbe same was fraudulently procured by appellants.. Tbe latter entered a disclaimer as to all tbe 108 acres of land except 60 acres wbicb was conveyed to them by warranty deed executed by appellee on February 6, 1925. Tbe cause was tried by jury, and, on tbe answers given by them to special issues submitted by tbe court, judgment was rendered in favor of appellee for tbe whole of tbe land, and tbe deed to appellants was canceled.

Tbe jury found that no undue influence or fraud was used by appellants to cause ap-pellee to execute tbe deed to tbe 50 acres of land, that appellants bad failed to comply with tbe conditions set out in the deed, which required a payment by appellant to appellee of $100 in cash, and that appellants should build a residence on the land and construct a cistern and to care for appellee, tbe mother of Julia Bronder Kozelski, during her life, waiting upon and securing her competent medical attention. It was also found that appellee bad not in any way prevented appellants from complying with tbe conditions in tbe deed, and that appellants bad not acted in good faith in making improvements on the land.

Tbe evidence discloses that appellee was legally seized and possessed of tbe 108 acres of land on the west bank of tbe San Antonio river, out of tbe Louis Mancbaea grant; that on February 6, 1925, she conveyed 50 acres of tbe tract off tbe west end thereof to her daughter Julia Bronder Kozelski, tbe consideration being love and affection, $100 in cash, and “that said Julia Bronder Kozelski shall build a small residence and cistern on tbe land to be hereinafter conveyed, and shall take good care of me during my lifetime, waiting on me when sick and furnishing competent medical attention.” Appellants paid the cash and tried to comply with tbe other conditions. Tbe bouse they built and cistern they constructed were built 'after they were notified that tbe courts would be applied to cancel tbe deed, about January, 1926. Tbe notice of intended cancellation caused appellants to build the bouse and cistern. A vendor’s lien was reserved on tbe land “until tbe above-described conditions thereon are fully met according to their face and tenor, effect and reading, when this deed shall become absolute.”

Tbe charge of fraud in obtaining tbe deed from appellee is eliminated from this cause, not only by tbe finding of tbe jury, but by tbe evidence wbicb fully sustains the jury. It follows that, if tbe cancellation of tbe deed and a forfeiture of the'title thereby conveyed can be sustained, it must rest on tbe naked proposition that a forfeiture can be based upon conditions in a conveyance such as those recited in tbe deed from Frances Bronder to Julia Bronder Kozelski and-her husband.

No foreclosure of tbe vendor’s lien reserved in tbe deed was sought nor obtained. It was a plain suit to cancel tbe deed and forfeit tbe title to tbe land held by virtue of tbe deed and, the judgment merely granted a recovery of tbe land, awarded a writ of possession, and canceled the deed. It follows that there is no basis for a discussion as to whether a vendor’s lien can be foreclosed on unfulfilled conditions, without being accompanied with an unpaid money consideration. No money judgment was sought; no lien sought to be foreclosed. There was, however, testimony tending to show a money consideration sufficient to have sustained a foreclosure of tbe vendor’s lien if not paid, had such foreclosure been sought by appellee. Tbe first and second propositions are overruled.

A plain statement of this case shows that appellee, without undue influence, persuasion, or fraud, executed a warranty deed to her daughter to 50 acres; tbe consideration being love and affection, $100' cash, tbe building of a small bouse and a cistern on tbe 50 acres conveyed to tbe daughter, and that tbe daughter and her husband should take care of and furnish nursing and medical attention. No time limit was given in wbicb tbe bouse and cistern should be completed, and the deed did not indicate what was meant by “shall take good care of me during my lifetime.” Appellants could not wait on ap-pellee when sick or furnish “competent medical attention,” because it was not shown that appellee bad been sick or needed medical attention. Tbe deed acknowledged receipt of tbe $100 cash, and tbe parol testimony showed it was paid, and it did not matter from whom it was borrowed, if it was borrowed. The deed was executed in February, 1925. Appellee would not accept food or help from appellants. “I did not want anything from them,” she swore In a few months after she executed tbe deed she “decided to take tbe land back.” When asked if Kozelski offered to pay tbe girl for washing, she answered: “I didn’t want him to because I wanted to take tbe land back and didn’t want to have anything to do with him.” They sent a girl to wait on appellee and sent provisions with her in February, 1925, but she refused to accept tbe food, and bad tbe girl taken back to her home. That was tbe month in.wbicb tbe deed was executed, and from that time she refused to take anything from them ‘.‘because be wanted to swindle me.” Tbe land bad been rented before she conveyed it to appellants, and she continued to collect the rent for it. She swore:' “Tbe rent and crops, etc., was mine. I rented it to him (her son), and be gave me tbe proceeds.” From this it appears that appellants were not placed in possession, and appellee even protested against appellants building tbe bouse and cistern on tbe land.

Fraud, mistake, or undue influence being eliminated by the verdict of tbe jury, tbe testimony of appellee shows tlie only ground upon wliicli a rescission or cancellation of the deed could be based would be that appellants did not perform the promises as to care in sickness and health. It is the general rule that the mere failure to-perform a promise forming the whole or part of the consideration which induced the conveyance, will not form the basis for a suit to rescind or cancel a deed. A promise on the part of a grantee to do something in the future is usually construed as a covenant upon which a grantor may base a suit, and not a condition subsequent upon breach of which a right to defeat the conveyance may arise. Pom. Eq. Jur. § 2108; Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L. R. A. (N. S.) 916; Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19 S. W. 472, 31 Am. St. Rep. 39; Priest v. Murphy (Ark.) 144 S. W. 921; Shafer v. Shafer (Mo. Sup.) 190 S. W. 323; Becker v. Schwerdtle, 141 Cal. 386, 74 P. 1029.

In the cited case of Priest v. Murphy, the Arkansas Supreme Court held, in the case of nonsupport of certain children for the support of whom the father had conveyed the land:

“The law is that, where the consideration of a deed is the grantee’s undertaking to support the grantor and he fails to comply with such undertaking, -the grantor’s remedy is either to sue at law for the amount of the consideration as it would become due, or else to treat the contract as void and sue in equity t& cancel and set it aside. * * * If their father had made the grant in consideration of his own support, he could, upon a proper showing, have had the deed canceled for a failure of such consideration.’’ •

The cited case of Shafer v. Shafer was one brought by a mother against her son to cancel a warranty deed made by her to him, alleging that the deed was made upon the promise of “the son that he would maintain and support his mother and furnish her with a suitable home during her natural life, that he would keep the property in repair, reform his personal habits, and refrain from the use of intoxicating liquors, all of which he failed and refused to do. In addition to the considerations named, the son had given a mortgage or lien on the land to secure his mother in the sum of $1,200. It was not clear whether the amount named was a part of the purchase money or a prior debt. In that case, as in this, accident, fraud, or mistake had been eliminated by the evidence. The court said:

“It remains to be determined whether the absence of consideration is such- as to enable the plaintiff to recover. If the personal promises alleged to have been made by the defendant constitute, as plaintiff contends, the entire consideration for the making of the deed, we find that defendant has failed in the performance of one of these promises, but has complied, so far as plaintiff has rendered it possible, with the other two. These promises are not so mutually dependent that the failure to comply with one will destroy or render impossible of performance either of the others, and hence there remains sufficient consideration to' sustain the contract. The general rule is that the equitable doctrine of rescission will not be applied unless there is an entire failure of consideration equivalent to an abandonment and the consequent release of the other party.”

A rescission was denied by the Missouri court.

In the Mississippi case (Dixon v. Milling) herein cited, which was one of a deed being executed by the mother to a son in consideration of a promise on his part to care for and support her, the question was as to the right to cancel the deed for a failure to perform the promises of care and support, and the court quoted with approval from another Mississippi case (Day v. Davis, 64 Miss. 253, 8 So. 203) holding:

“A voluntary conveyance of land cannot be vacated, at the instance of the grantor thereof, upon the mere ground that it was made without any consideration.”

In regard to decisions in cases of aged persons who had transferred their property for care and support, which hold that fraud will be implied from a failure to keep promises to care for and support, the court indicated that it would decline to follow them, but would follow the rule announced in section 2108, Pomeroy Equity Jurisprudence.

There was no evidence that there was an intention present in the minds of appellants at the time the deed was executed, not to perform the promises recited in the deed, and decisions on that phase of case would not be applicable to the facts. Chicago, T. & M. C. Ry. Co. v. Titterington, herein cited; Hewett v. Dole, 69 Wash. 163, 124 P. 374.

The vendor’s lien paragraph in the deed retains the lien “until the above-described conditions thereon are fully met, according to their face and tenor, effect and reading, when this deed shall become absolute.” That language would seem to have the effect of prescribing conditions, and, if so, upon a failure to perform them, the right to a forfeiture would arise. While at the time this reference to a vendor’s lien was placed in the deed there was no money or other property promised by appellants, the deed containing a receipt for the $100 cash, and there was nothing upon which to base foreclosure of the vendor’s lien, still the recital of the lien shows that the title was conveyed on the performance of certain conditions which, if not performed, would entitle appellee to a forfeiture of the title. The evidence is totally insufficient to show that appellants had not complied with the conditions save and except in so far as they were prevented from complying by the acts of appellee. During'the very month in which she executed the deed she threw every impediment in the way of a compliance with the conditions. She did not recognize any rights that appellants had in the land; she remained in possession and collected the rents. She refused the food sent to her and dismissed the girl whom appellants procured to wait upon and serve her. She tried to prevent appellants from building the house and cistern. They did all they could do, and the conditions were not performed because ap-pellee refused to accept the offers to perform them. -She is not entitled to rescission on account of nonperformance of conditions, and the testimony failed to sustain the verdict and judgment.

The judgment is reversed, and judgment is here rendered that appellee take nothing by her suit and pay all costs of this and the lower court. 
      &wkey;sFor other cases see same topics and KEY-NUMBER in all Key-Numbered Digests and Indexes
     