
    Alward v. Manore, Admr.
    (Decided March 18, 1935.)
    
      
      Mr. J. J. Waldvogel and Mr. Richard McClure, for plaintiff.
    
      Messrs. Flory & Taylor, for defendant.
   Carpenter, J.

This cause comes to this court upon appeal. John Manore was the father of plaintiff and of the defendants Arthur A., Leo T., Clifton M. and Jerry B. Manore, and Ellen Duvall. January 30, 1929, John Manore, then a widower, entered into a written contract with plaintiff, Netellia Alward, which was in the following terms:

“This agreement entered into and concluded this 30th day of January, A. D. 1929, by and between John Manore, a widower of Toledo, Lucas County, Ohio, of the first part; and his daughter, Netellia Alward, of the same place, party of the second part,

“Witnesseth:

“Party of the first part agrees to execute a deed of conveyance to said Netellia Alward, party of the second part, for lot number Seventy-One (71) in Yates Addition to the City of Toledo, Lucas County, Ohio, being house number 914 Frederick Street; also execute a Bill of Sale to her for the furniture and household goods now in said dwelling, owned by him, and place said deed and bill of sale, in an envelope addressed to said Netellia Alward, the same to be put in the safety deposit box of the party of the first part, and upon his death to be delivered to the party of the second part.

“In consideration of the above and foregoing, the party of the second part, agrees to occupy (with her husband), the aforesaid premises, pay the taxes and assessments on the same from and after the December 20, 1928, payment, keep said premises fully insured and keep the same in good repair, inside and outside; also agrees to give the party of the first part a home therein, provide him with board, lodging and laundry work, and the ordinary care he may require, as old age creeps upon him, for and during the term of his natural life.

“In case of sickness, party of the first part is not to be removed from the house, (except in case of contagious disease), he is to be attended by a Physician at the house, and if the Doctor should demand or order a nurse, then such nurse shall come to the house, (the idea being that party of the first part shall not be taken to a Hospital). This medical and nurse expense shall be born[e] by the party of the first part.

“It is hereby further agreed, that upon failure of party of the second part, to do all the things agreed to be done by her, as hereinbefore stated, then upon thirty days previous notice in writing from the party of the first part, the party of the second part agrees to vacate such premises, and all past performance of this agreement by the party of the second part, shall be offset by the use and occupation of said premises by her, and this agreement shall be null and void, otherwise to be in full force and virtue.

“In witness whereof we have hereunto set our hands this 30th day of January,.A. D. Í929.

“Signed and acknowledged John Manore

in the presence of Netellia Alward.

“J. J. Waldvogel “Margaret A. Zeitler”

This instrument was duly acknowledged by both parties before a notary public. At the same time a warranty deed to the real estate described, of which John Manore was then the owner, and a bill of sale of the personal property, were duly executed by him to the plaintiff. Manore died January 24, 1933, after a short illness, and thereafter the deed and bill of sale were found in his safe deposit box. In 1922 John Manore executed a will by which he gave all of his property to his six children, named above, in equal shares, and the son, Jerry B. Manore, is appointed executor, but no special power was conferred upon him as such. After his death, the will was duly probated.

Plaintiff in her petition says she fully performed her part of said contract and prays that the executor be required to deliver to her the deed in question, or that he be authorized to complete the contract by conveyance to plaintiff of title to the real estate described in the contract and for all proper relief.

The joint answer of all defendants admits the execution of the contract and deed as alleged and that the executor refused to deliver the deed to her, and denies all other allegations of the petition, and as separate defenses says, in substance, plaintiff failed to perform her part of the contract, and that she has an adequate remedy at law.

On the first issue, as to performance by plaintiff, we find that plaintiff did perform all the promises she made her father in the contract, to his satisfaction. With that issue so disposed of, what if any are the rights of plaintiff in the title to the real estate under the contract? The defendants claim that for want of delivery the deed executed by decedent is ineffective to convey the title, hence the contract is impossible of performance, and plaintiff can only look to her remedy at law, and to decree to her the property would in' effect be making another and different contract for the parties. That the deed is ineffective to pass title is conceded by plaintiff, but she claims that having performed her part of the contract, she became the equitable owner of the property on the death of her father, and the property became impressed with a trust in her favor. With that we agree.

The terms of the contract are clear, and so are the intentions of the parties in making it. The father provided for his care and keep the rest of his life by his daughter, and for this he clearly intended to give her the property, — not a valueless piece of paper. Not only do we have this manifest in the contract, but thereafter he said to various persons he was “satisfied” with the arrangement he and his daughter had made and that he had a good home. Some of these expressions were made but a few weeks before he died. Nor did he avail himself of the right reserved to him in the contract, to notify plaintiff to leave upon her failure to perform her part of the contract.

The evidence shows that the value of the real estate was about $2100 or $2200 at the death of the decedent, and substantially that at the time the contract was made. In view of the fact that plaintiff cared for her father and performed her part of the contract for four years, and might have done so much longer had he lived, the property is not an excessive or unconscionable consideration for the services she rendered and the care she gave her father.

Many cases have been cited to us involving problems of contracts, specific performance, mistake and trusts. In none do we have the same facts here presented. We think this court of equity should look at the substance of the contract and give effect to the manifest intention and purpose of the parties, even though that cannot be accomplished in the precise form provided by the contract. To deny relief because the vehicle chosen by the parties to convey the title is ineffective to do that, when a way can be provided by the court not inconsistent with the purpose of the contract, would be inequitable and unjust.

The principle is not different from that involved in Emery v. Darling, 50 Ohio St., 160, 33 N. E., 715, not only as to the equity of giving effect to such a contract, but also as to the inadequacy of the remedy of an action for damages; there the consideration for the promise was the services of one sister to another. The court said, page 166:

‘ ‘ The consideration that moved Miss Powell to make the promise was a desire for the society of her sister. The value of the society of one sister to another is incapable of measurement in money.”

That is equally true in this case where the father sought the care as well as the society of his daughter. As opposing the last stated proposition, defendants cite: Kling, Admr., v. Bordner, 65 Ohio St., 86, 61 N. E., 148; Newbold v. Michael, 110 Ohio St., 588, 144 N. E., 715; Nunn v. Boal, 29 Ohio App., 141, 162 N. E., 724; Hathaway v. Jones, 48 Ohio App., 447, 194 N. E., 37. But in each of these cases, the services were performed by a stranger, and not by a near relative as in Emery v. Darling, supra, and in the case at bar. The elements of society and companionship and the peculiar care required by Manore in case of illness, or anything like them, were not present in those cases.

The recent case of Gillespie v. Loge, 48 Ohio App., 463, 194 N. E., 376, is directly in point both on the form of the remedy and as to the power of a court of equity to administer such remedy.

For the reasons above stated, we conclude the devisees under the will of John Manore took the legal title to the real estate described, impressed with the trust arising from the equitable title of the plaintiff therein, and that that may be done which ought to be done, they are ordered to convey that legal title to plaintiff, and on their failure to do so the decree herein shall operate as such conveyance.

Decree for plaintiff.

Lloyd and Overmyur, JJ., concur.  