Complainant, appellant, filed this bill May 30, 1916, praying that a certain conveyance of land which he had theretofore made to defendant be canceled and annulled. It was averred in the bill that defendant, complainant's son, induced complainant, who was very old and feeble in mind and body, to execute the deed by "telling the complainant that if he would do so the defendant would give the complainant one-fourth of all the defendant made as long as the complainant and his wife should live; that after repeated persuasions the complainant and his wife were finally induced by the defendant to make said deed; that the defendant went and employed a justice of the peace to draw said deed and dictated to said justice of the peace how the same should be drawn; that the defendant dictated to said justice of the peace what purported to be a mortgage on said lands, but there is no amount or consideration expressed in said mortgage, and complainant avers that he has been informed that said mortgage is void and incapable of being enforced; * * * that the defendant is now in possession of the said lands under said deed, and enjoying the rents and profits of the same to the exclusion of the complainant." The prayer of the bill was that a decree be granted "canceling and annulling the said deed from complainant to the respondent * * * on account of undue influence as averred in said bill, and for other relief, general and special, as may be agreeable to equity and good conscience." To his answer and cross-bill, praying that the mortgage be canceled as satisfied in full, defendant attached a copy of the mortgage averring "that the consideration of said deed was one-fourth of the crops grown by defendant on said land which was, together with $1, the consideration expressed in the mortgage *Page 663 executed by defendant to complainant;" that, though he had diligently complied with the terms of the contract thereby shown, complainant had advertised and sold the land under the power contained in the mortgage; that he (defendant) had bought the land at the sale for the sum of $800, and "that after said sale defendant tendered complainant the amount due on said mortgage amounting to $2.33 (which he piously calculated as follows: $1.21 for the mortgage debt and interest on the same, 12 cents as an attorney's fee, and $1 for recording the mortgage); and that he was still ready to pay complainant said amount, if the court should find it due, and paid said amount into court by way of keeping his tender good. The mortgage recited the consideration upon which it was executed as follows:
"That for and in consideration of S. Z. Woodley and wife, E. H. Woodley, the grantors in this conveyance, being indebted to E. H. Woodley and wife. E. R. Woodley, the grantees herein, in the sum of $1 and one-fourth of all crops raised on said land as long as the grantees live, and at the death of the grantees this mortgage becomes null and void," etc.
After the evidence had been taken complainant amended his bill by the addition of a prayer for alternative relief, and to the bill as so amended defendant demurred on the ground that the relief prayed by the amendment was inconsistent, repugnant, and wholly indifferent from the relief prayed in the original bill, and that the bill as amended was multifarious. In the view we take of the case the amendment was of no consequence. The demurrer may be sufficiently answered by reference to the language of section 3095 of the Code which provides (inter alia) that:
"A bill is not multifariousness which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction, or relating to the same property between the same parties."
See, also, Lyons v. McCurdy, 90 Ala. 497, 8 So. 52. The evidence went to prove that in 1915 defendant planted crops of corn, wheat, and peas (of trifling value evidently) on the land in question, but planted no cotton, assigning as his reason for so doing that complainant would not help to pay for the guano, and saying that he had a deed and that his father could get only a fourth if he raised nothing but grass. What happened in 1916 will be stated below.
The case presented is analogous to cases, of frequent occurrence in the books, in which conveyances are made upon consideration of the grantee's undertaking to maintain and support the grantor. In Brindley v. Brindley, 197 Ala. 221,72 So. 497, it was said that the courts very generally have found a way in such cases to give relief to the grantor who complains and proves that his grantees have failed or refused to carry out his undertaking, citing Davis v. Davis, 81 Vt. 259,69 A. 876, 130 Am. St. Rep. note on page 1040 et seq.; 6 Pom. Eq. Jur. § 686, note.
In Gardner v. Knight, 124 Ala. 273, 27 So. 298, the recited consideration of the deed was the sum of $5 presently paid, love and affection, and the promise of a stranger to the deed to provide for the sustenance and support of the grantor and to make specified repairs and improvements upon the property conveyed. Complainant sought to cancel the deed upon the grounds that the only consideration for the deed was the grantee's undertaking to provide for the sustenance and support of the grantor and to make the specified repairs and improvements, and the grantee's total failure to perform. The opinion treated these promises as the only consideration. It was held that the grantor could not maintain a bill to cancel the deed on the ground that the grantee had failed to carry out his undertaking; that the remedy was on the undertaking and not by way of cancellation.
In Burroughs v. Burroughs, 164 Ala. 329, 50 So. 1025, 137 Am. St. Rep. 59, 20 Ann. Cas. 926, the deed recited a consideration of $150; but the bill to enforce an alleged vendor's lien averred that the real consideration for the deed was the grantee's promise to maintain and support the grantor or furnish a reasonable amount for her support during the remainder of her life. It was held that complainant's remedy was on the undertaking; that no vendor's lien could be declared for an uncertain, indefinite, contingent demand.
Here the case is different. The legal title which passed by grantor's deed was revested in him by the mortgage executed by the grantee to secure the performance of his promise to give the grantor one-fourth of the crops during his life and the further promise, of necessary implication, that in order to be able to give one-fourth crops would be planted from year to year and cultivated in a reasonably husbandly manner. We say such further promise must be implied, for otherwise the contract would be utterly ineffectual to secure the consideration on which complainant parted with his property and for the security of which he exacted the so-called mortgage. The deed and the alleged mortgage together witness the transaction between the parties, and these instruments relating to the same subject-matter and executed concurrently as parts of the same transaction are to be construed together. Considering the two instruments as one, the law applies itself to the intention to be gathered from the language of the whole Instrument. Observing as did the Supreme Court of Indiana in the similar case of Richter v. Richter, 111 Ind. 460,12 N.E. 698, that if the so-called mortgage can only be treated as creating a personal covenant to perform the stipulations therein contained it is practically inoperative as a security, we quote from that case as follows: *Page 664
"If from the nature of the acts to be performed by the grantee, and the time required for their performance, it is evidently the intention of the parties that the estate shall be held and enjoyed on condition that the grantee perform the acts specified, then the estate is upon condition. This is especially so when the grantor has reserved no other effectual remedy for the enforcement of the performance on the part of the grantee. In such case a condition subsequent arises by clear implication. 2 Washburn Real Prop. 7."
According full consideration to the rule that condition subsequent, going to the destruction or defeasance of estates created, are not favored, we are nevertheless of the opinion that the two instruments in question, taken together, created an estate in the defendant upon the condition subsequent that he should perform the stipulations of the mortgage, and this conclusion as to the substantial effect of the two instruments is not impaired by their strict legal operation, for the transaction evidenced by them shows that the intent of the grantor in the deed was to have his land or the performance of the stipulations in consideration of which he executed the deed. Bethea v. McCullough, 195 Ala. 480, 70 So. 680. At page 1046 of 130 Am. St. Rep., in the note to Davis v. Davis, many cases are cited from the leading courts of this country to the proposition that agreements of the sort here shown will be treated as conditions subsequent.
The principle of the decision in our recent case of Seaboard Air Line v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187, is, we think, identical with that involved in the case here before us. In that case the complainant (appellee) executed a deed of a right of way to the defendant upon the nominal pecuniary consideration of $1 and the further consideration of the benefits to be derived by complainant from the construction and operation of defendant's railroad then in contemplation. The railroad was never built. This court, treating the benefits to be derived from the building of the road as the sole consideration for the deed, noting that a suit at law for damages would be wholly inadequate as a remedy, and determining the intention of the parties upon what it considered to be the application of good sense and sound equity to the object and spirit of the contract, affirmed a decree which had declared, in effect, the building of the railroad within a reasonable time to be a condition subsequent and a forfeiture for the failure so to build.
It appears very satisfactorily that complainant was not induced to execute the deed to defendant by the exercise of any undue influence, and so he cannot have relief on the specific ground set forth in his original bill. But it appears also that defendant has failed and refused to carry out his contract. He refused to pay his father anything from the crops for the year 1916, assigning as his reason for so doing that complainant's effort to foreclose the mortgage and his own purchase at the foreclosure sale had terminated complainant's interest in the property. The breach did not operate, ipso facto, to revest an unincumbered title in complainant. The foreclosure may have served the purpose of a declaration of forfeiture, if that were necessary, but otherwise, as a means of practical relief to complainant, it was wholly and obviously abortive. The nature of the contract was such that on its face a foreclosure could afford no relief; could make no amends for the breach already suffered; could not assure future performance. Upon this status and effect of the mortgage security we have in part based our conclusion that in the particular circumstances of this case defendant took an estate upon condition subsequent. But the foreclosure operated a satisfaction of the mortgage. Jackson v. Tribble, 156 Ala. 480, 47 So. 310. Such being the case, no reason is perceived why equity should not establish the title in accordance with the facts, clear away all apparently interfering writings, and give such relief as may be necessary to the ends of justice. Davis v. Davis, supra. The relief of rescission and cancellation thus administered is not wholly different from, nor repugnant to, the relief specifically prayed, and being justified by the facts alleged and proved, may be had under the general prayer for relief.
The decree of the court below will be reversed and the cause will be remanded, with directions to enter and superintend the execution of a decree rescinding the contract between the parties for the conveyance of the land in question, canceling and annulling the deed and mortgage referred to in the pleadings, and restoring complainant to the possession of the land in controversy. Defendant (appellee) will be taxed with the costs in this court and in the court below.
Reversed and remanded.
On Rehearing. Application overruled.
SOMERVILLE, GARDNER, and THOMAS, JJ., concur.