
    Catherine Diggins vs. Bridget Doherty.
    Equity. No. 8,839.
    Decided July 8, 1885.
    Justices Hagnbr, James and Merbick sitting.
    1. It is entirely competent to show a consideration different from that expressed in the deed when it is of the same general character. Thus, when the consideration stated is money, which is a valuable consideration, the consideration of having a home in the property conveyed, being of the same character, may be shown by parol testimony to have been the true consideration.
    3. When the consideration is that the grantee shall provide a home for the grantor in the property conveyed, and the grantee afterwards refuses to provide such home, a court of equity will rescind the contract on the application of the grantor and return the parties to their original status.
    
    STATEMENT OE THE CASE.
    Bill in equity to set aside a deed.
    The bill sets forth that Dennis Blaney died intestate, and seized and possessed of certain real estate, and leaving surviving him his widow, Johanna, and his two sisters, one of whom is the plaintiff, and the other the defendant, Bridget Dpherty,his only heirs-at-law; that the said Johanna (in pursuance of an agreement among the parties interested for the settlement of the decedent’s estate), joined with plaintiff in the execution of a deed conveying all her right, title and interest in the said real estate to her sister, Bridget Doherty, the defendant; that the real and only consideration for executing said deed was that she should have a home and reside with her said sister Bridget upon said premises during her life; that she is over seventy years of age, and that her sister Bridget and her husband have driven her out of said premises; that they have refused, and still refuse to permit her to reside with them, and that she has been compelled to seek a home with her stepdaughter.
    The bill then prays that this deed maybe set aside and declared void so far as it conveys plaintiff’s interest, and that the property may be sold and the proceeds divided between the parties in interest.
    The defendants, Bridget Doherty and Joseph, her husband, filed a joint and several answer. They denied that the consideration of the deed was as stated in the hill, but alleged that the deed was executed pursuant to an amicable partition of Blaney’s estate; that the estate consisted of over $3,000 in money and two houses; that the widow was to have $1,600 of the money, and the two sisters $1,000 each, and that the defendant Bridget should have the least valuable of the two houses; that at this time the plaintiff was living at the National Hotel, and only came occasionally to the house; that in consequence of the plaintiff’s intemperate hahit they were compelled to tell her that she must either keep sober or cease to visit them; that while they deny any legal obligation to do so, yet they are ready and willing to receive the plaintiff and care for her during the rest of her life' if she will leave off her intemperate habits.
    A replication was filed to the answer, and testimony was taken.
    On the hearing in Special Term the court dismissed the bill, and plaintiff appealed.
    Bainbridge H. Webb for plaintiff:
    All the recent decisions hold that parol evidence is admissible to show the real consideration of a deed as being different from that stated. They explain that the deed is the execution of the contract, hut not the contract itself, and that its object is to transfer the title to the purchaser and not to state the terms on which he bought. 1 Md. Ch., 392; McCrea vs. Purmort, 16 Wend., 490; 26 Conn., 368; 14 Johns, 210; 20 Id., 338; Adams vs. Hull, 2 Denio, 306; 3 Am. Dec., 306; Williamson vs. Scott, 17 Mass., 249 ; Goodspeed vs. Fuller, 46 Me., 141; 11 Ohio St., 339; Rockhill vs. Spraggs, 9 Ind., 30; Vail vs. McMillan, 17 Ohio St., 617.
    Nathan Vail conveyed his real estate to James McMillan, his wife’s illegitimate son, reserving a life estate to himself and wife. The consideration mentioned in the deed was $350. The grantee died, and his widow (and heir-at-law under the laws of Ohio) filed a bill to restrain Vail from committing waste. Vail filed a cross-bill to set aside tbe conveyance for failure of consideration, alleging that no money had been paid, but that the sole consideration of the deed was that McMillan should support Vail and wife during their lives. The court said: “The question then is, did the district court err in ruling out and declining to consider the evidence tending to show by parol testimony that the verbal contract of McMillan for the support of the old people during their respective lives, was in fact a part consideration for the execution by them of the deed in question. We are constrained to think that it did. Vail vs. McMillan, 17 Ohio St., 617.
    In Clifford vs. Terrill, 9 Jurist, pt. 1, 622, the chancellor said: “It was said that the plaintiff could not go out of the deed to prove that there was any other consideration. Now the settled rule of law is that you may do so.”
    There can be no doubt of the power of a court of equity to grant the relief prayed for by this bill.
    The power is exercised under that head of its jurisdiction where recision, cancellation or delivery up of agreements, securities or deeds is sought, or a specific performance is required of the terms of such agreements, securities or deeds as indispensable to reciprocal justice. The application to a court of equity for either of these purposes is not strictly a matter of absolute right, upon which the court is bound to pass a final decree. But is a matter of sound discretion, to be exercised by the court either in granting or refusing the relief prayed, according to its own notion of what is reasonable and proper under all the circumstances of the particular case. Story’s Eq. Jurisp., §§ 692, 693.
    William Bogie conveyed to his son John absolutely, who by separate instrument agreed to support his father, the grantor, during life, and to make certain payments. The bill prayed, among other things, for a recision of the conveyance for failure to support, which the court granted, saying, a portion of the relief sought is the recision of the conveyance and agreement, and a court of equity has power in proper cases to grant such relief. On the question as to what relief should be granted for the entire failure of John Bogie to perform his agreement, we have no doubt or difficulty whatever. The proper relief, to wit, the recision of the conveyance and agreement is prayed in the complaint. We should not hesitate so to hold on principle in the absence of adjudged cases. Bogie vs. Bogie, 41 Wis., 209.
    And see Bresnahan vs. Bresnahan, 46 Wis., 385. See, also, Tracy vs. Sacket, 1 Ohio St., 54; Dunn vs. Chambers, 4 Barbour, 376; Devereux vs. Cooper, 11 Vt., 103.
    But besides the inate equity of the particular case presented to the court, it is submitted, that it has other features which courts of equity have always regarded as good grounds for the exercise of that power which is now invoked. Here is the case of an aged woman who conveys her 'property to a younger sister, upon the promise of that sister to give her a support during the rest of her life. It may readily be gathered from the testimony that the grantor, by reason of her age and illiteracy was incapable of viewing the transaction in its legal or business light,- but was induced to execute the deed solely by the sister’s promise of support.
    In Huguen vs. Basely, White & Tudor’s Leading Cases in Equity, vol. 2, pt. 2, p. 1174 et seq., the court, in speaking of the relief granted in voluntary conveyances, says that they stand upon a general principle applying to all the variety of relations in which dominion may be exercised by one person over another.
    In Harvey vs. Mount, 8 Beav., 439, a younger sister conveyed to the intended husband of an elder sister in trust for her (the grantor) during her life, and after death to stand as trustee for the other sister absolutely. The deed was set aside, the court observing upon the relationship of the parties, and that dominion may have been exercised by this one sister over the other. Sharp vs. Leach, 31 Beav., 491; Billage vs. Souther, 9 Hare, 534; Dunn vs. Chambers, 4 Barb., 376.
    Hiñe & Thomas for defendant:
    This is a bill for recision and cancellation of a deed on the ground of failure of consideration; there is no fraud or illegality alleged in procuring the conveyance complained of, nor is it stated that it was obtained by mistake of facts material to its operation; it is, therefere, respectfully submitted that the jurisdiction to rescind does not arise. The remedy of the plaintiff is at law, and this was the view taken by the court below in dismissing 'the bill.
    Again, had the plaintiff even stated such a case as would entitle her to the relief prayed, the court would not exercise the jurisdiction invoked, because the proofs show the parties could not be placed in statu quo; in addition to this, there is a serious conflict in the tostimony, and the court at special term might very well have dismissed the bill, because the plaintiff failed to establish her case.
    The conveyance in controversy is absolute on its face; the proposition is not to show that the real transaction was a loan, and the conveyance a mortgage, or such facts as would create a resulting trust in favor of the plaintiff, but that the consideration failed — or what is even worse — that the consideration was that the grantee would support the grantor for life — to vary the terms of the deed by showing that the consideration was different from that expressed— and this too by parol. It is sufficient, we think, to say it cannot be done.
    The plaintiff when she executed and delivered the deed, which she now wishes to rescind, had the benefit of counsel ; such objections then as age, illiteracy, &c., should have no influence in the decision of the case.
    The rule that parol testimony will only be received either to establish an equity of redemption, or a resulting trust, is too well established, we think, to require a reference to adjudged cases.
    The cases cited in appellant’s brief are of the class where a bond or agreement in writing explaining the nature of the transaction is executed contemporaneous with the conveyance; they are not relevant to this case and should not be followed as authority.
   Mr. Justice James

delivered the opinion of the court.

The proofs show that one Dennis Blaney died intestate in 1881, seized of certain property, and leaving. a widow and two sisters. By an amicable arrangement provision was made for the widow, and the sisters, the plaintiff and defendant, took the house and lot to which this suit relates. The plaintiff thereupon conveyed her undivided half interest to the defendant. A money consideration is named in the deed, but it is shown that a parol contract was made as a part of the transaction, that, in consideration of this conveyance, the grantee was to provide the grantor a home in that house during the remainder of her life. The grantor was then an old woman of seventy years.

It was competent to show a valuable consideration different from the valuable consideration named in the deed. As the latter was not paid, nor intended to be paid, and the true consideration has been withheld, the question here is, to what relief the plaintiff is entitled.

Where money or other property is the true consideraation, the remedy at law is adequate, and there is no room for the interference of equity. The damage arising from non-performance is perfectly ascertainable and measurable in money. But where the contract is intended to operate continuously, as a provision for the future of the grantor, by actual specific performance, the remedy by damages is not adequate. The money which would secure for the grantor a home in some other house and among strangers is not, even if a jury could ascertain it, a compensation for the loss of the particular home which the grantor intended to secure. Moreover, a jury cannot ascertain the actual amount of money which will secure a house for the remainder of a life. Tables of longevity are not applicable for any such purpose. In addition to the inadequacy of the remedy at law, there is another distinct ground for equitaable relief. To refuse performance of this continuous contract and at the same time to retain the subject granted in consideration of such performance, is fraud. The proper relief in that case is rescission of the contract itself. It is hardly necessary to refer to authority for the exercise of such jurisdiction ; the doctrine is familiar. ■ This conveyance is annulled.  