Leach v. Leach, 4 Ind. 628

Roache, J. Bill in chancery by John S. Leach against Jacob B. Leach. In 1834, the plaintiff and bis wife conveyed to the defendant, his son, the farm on which the former resided, for the nominal consideration of 1 dollar. Contemporaneously with the execution of the. deed, the son executed a bond to the father, in which, after reciting the conveyanee, in consideration thereof, among other stipulations, he bound himself to cultivate the farm in a husbandlike manner, and to deliver to the grantor, during his life, the one-third of the produce, that is to say, one-third of the grain, potatoes, &c.

The plaintiff filed the bill, alleging the defendant had violated the condition subsequent on which he held the title, by failing for years to deliver the one-third of the produce of the farm, and praying that the deed might be canceled, and an account taken. The defendant answered, admitting the execution of the bond to have been the principal consideration for the conveyance, but asserts there was a small pecuniary consideration which he paid, and denies that he had failed to deliver the stipulated amount of produce. .

A good deal of evidence was introduced on both sides, and on the hearing the Circuit Court dismissed the bill. The deed and the bond are but parts of one contract, and are to be treated as together constituting a single instrument. Fellows v. Kress, 5 Blackf. 536.—Sewall v. Henry, 9 Ala. R. 24.—Watkins v. Gregory, 6 Blackf. 113. The defendant held the land upon a condition subsequent, that he would, in all things substantially comply with his covenant.

In such case, a failure to perform the obligation is a breach of the condition subsequent and a forfeiture of the estate, and forms a proper subject for the interference of a Court of chancery. Jenkins v. Jenkins, 3 Mon. 327.—Scott v. Scott, 3 B. Mon. 2.—Devereux v. Cooper, 11 Verm. 103.—Hefner v. Yount, 8 Blackf. 455. Upon a careful review of the evidence, we have come to the conclusion that it is clearly established that the defendant has not substantially performed the obligation of his bond. The payment of the small pecuniary consideration was' not sufficient.

Manifestly, the leading consideration which moved the father to make the conveyance was to secure to himself and his wife a support in their declining years. The contract was highly advantageous to the son. For a very disproportionately small sum in money, and a payment for the few remaining years of the father’s life of the same rent he would have had to pay to any one else for the use of land, he became the owner in fee of the farm.

Even this pittance he failed to pay, and besides denies to his father the use of the dwelling on the farm in which he had lived, because it was not specifically mentioned in the bond. R. Crawford, for the plaintiff1. J. Collins, for the defendant. The undertaking to pay the rents was the leading consideration of the deed, and without which it is evident it would not have been made. The failure to comply with that obligation worked a forfeiture of his estate. Upon setting aside the conveyance it was proper to take an account.

The defendant should be allowed for the money consideration, so far as he could prove he had paid it,with interest; for the improvements made, and all rents paid; and should be charged with the rents of the whole farm, including that portion by him cleared, from the time he went into possession of it. This is the proper and only mode of restoring the parties to their original situation. Per Curiam. The decree is reversed with costs. Cause remanded for further proceedings in accordance with this opinion.