
    Joe P. Boyle, Plaintiff-Appellee, v. Evalou Harvill, Defendant-Appellant.
    (No. 69-173;
    Fifth District
    — December 13, 1971.
    N. Y. Dowell, of Mt. Vernon, for appellant.
    
      Frank H. Walker, of Mt. Vernon, for appellee.
   Mr. JUSTICE VERTICCHIO

delivered the opinion of the court:

The defendant-appellant, Evalou Harvill, appeals from a decree of the circuit court of Jefferson County ordering her to reconvey to the plaintiff-appellee, Joe P. Boyle, an undivided one-half interest in certain property acquired from the plaintiff for defendant’s failure to perform the terms of consideration pursuant to an oral agreement.

The plaintiff, Joe P. Boyle, eighty-five years of age, filed this suit on September 17, 1965, in the circuit court of Jefferson County to set aside a deed executed on October 11, 1963, whereby he conveyed his residence premises located at #4 Hillside Drive, Mt. Vernon, Illinois, to defendant, Evalou Harvill, and himself as joint tenants.

The complaint alleges an oral agreement under which the defendant was to move into the plaintiffs home, do the housework and care for the plaintiff during his lifetime as a consideration for the conveyance. It is also alleged that the defendant violated the agreement by moving out of the plaintiff’s home and refusing to perform any further work.

The defendant denies that she agreed to perform any services or move into the plaintiff’s home and affirmatively alleges that she had been ready, willing, and able at all times to perform services for the plaintiff, but that the plaintiff refused such services.

There is considerable divergence in the testimony concerning an oral agreement. After separating the wheat from the chaff, it becomes clear that there are solely two issues involved:

1. Was there an oral agreement between the parties and, if so, what were the terms?
2. Did the defendant in any way fail or refuse to comply with the terms of the oral agreement?

The defendant, Evalou Harvill, a niece of the plaintiff, Joe P. Boyle, testified that after the death of her uncle’s first wife, she from time to time performed household work for the plaintiff in his home in Salem, Illinois.

She continued rendering these services on a voluntary basis until Joe P. Boyle married his second wife, Grace Frasure, on August 10, 1962. The plaintiff divorced the said Grace Erasure on September 4, 1963. The plaintiff and his second wife moved from Salem to Mt. Vernon, Illinois, to a home located at #4 Hillside Drive, the property herein at issue, prior to the divorce. Subsequent to the divorce the defendant resumed visiting the home of the plaintiff, performing household tasks, including cooking of meals which they shared.

The defendant denies that there was any oral agreement as a consideration for the transfer of the property by the plaintiff to her and the plaintiff as joint tenants on October 11, 1963. The defendant states that she did move some clothes into the plaintiff’s home, but the clothes were moved into the home solely for storage purposes, that she did not at any time move into the home of the plaintiff. The defendant stated that tire clothes were moved out of the plaintiff’s home sometime in August, 1965, after she acquired a larger home for herself in which there was adequate storage space.

The plaintiff, Joe Boyle, in his testimony in a rather nebulous or foggy manner described or sets out an oral agreement between the parties. He stated that the defendant was to perform household work and assist him in his personal needs. He stated, “It was not a part of the agreement | that she was to move into the house.” He further stated that the defendant never stayed overnight in his home.

The only other witness testifying relevant to the agreement was Leona Johnson, sister of the defendant, who testified that the plaintiff, “Uncle Joe,” as she called him, came to her home and told Mrs. Johnson, referring to Mrs. Erasure, “She told me she would marry me if I would get this deed j back in my name.” She also stated that her sister performed services for her Uncle Joe. She said she was familiar with the circumstances under | which her sister moved her clothes into plaintiff’s home and stated that the clothes were moved into the home for storage purposes. I

The evidence is bare of any testimony to the effect that the defendant at any time refused or failed to provide care for the plaintiff.

There is evidence on which the court could properly have found that an oral agreement was entered into between the plaintiff and the defendant. The evidence fails to reveal or establish the terms of the agreement other than the plaintiff contended that the defendant was to perform household work for him.

Thus the issue is limited to, did the defendant fail or refuse to perform household work for the plaintiff? The law is clear that where one voluntarily conveys his property in consideration of support and maintenance during his life and the grantee afterwards refuses to perform the contract, equity will grant relief by setting aside the deed and revesting the grantor with title. The court will infer from the grantee’s refusal to perform a fraudulent intent in the first instance in entering into the agreement. (Brown v. White, 410 Ill. 366.) In Weaver v. Zimmer, 337 Ill. 498, the court said at page 505, “Having found that there was an agreement between the parties, has it been violated or repudiated by the daughter to such a degree as to warrant a court of equity compelling her to convey the property to the father? * * *. If the evidence is such as to justify a conclusion that an agrément of that kind was entered into with a fraudulent intent or has been abandoned or repudiated a court of equity will set aside the conveyance. The failure to perform on the part of the child or grantee must be substantial and in relation to material matters.” The principle that the failure of the grantee to perform must be substantial and in relation to material matters was reiterated in Mruk v. Mruk, 379 Ill. 394, at pages 399 and 400, citing Weaver v. Zimmer, supra.

In the case before the court there is not a scintilla of evidence that the defendant failed or refused to perform and, further, there remains the unrebutted statement that plaintiff stated to Mrs. Johnson, “She told me she would marry me if I would get this deed back in my name.” The plaintiff did, as the record indicates, remarry Mrs. Grace Frasure on June 30, 1966.

This court believes that the record is insufficient to authorize a court of equity to order the defendant to reconvey an undivided one-half interest in the property to the plaintiff. The decree of the circuit court is herewith reversed and the cause remanded with direction to dismiss the plaintiff’s complaint for want of equity.

Reversed and remanded.

MORAN, P. J., and EBERSPACHER, J., concur.  