Judge, dissenting.
I respectfully dissent.
This matter reminds the writer of an old legal truism. Hard eases make bad law. Hard cases must not make bad equity any more than bad law. Moore v. Pierson, 6 Iowa 279, 71 Am.Dec. 409 (1858).
In the case at bar, appellant raises two points on appeal. First, appellant contends that the trial court erred in decreeing that the title to the real property be vested in appellant and respondent as tenants in common because the judgment unjustly enriches respondent. Second, appellant contends the judgment denies her restitution and allows respondent to escape her legal duty of performance.
A conveyance by one of two joint tenants prior to the death of either will defeat the right of survivorship and will create a tenancy in common between the remaining joint tenant and the grantee in the deed. Dobbins v. Hupp, 562 S.W.2d 736, 742 (Mo.App.1978). Thus, the trial court did not err in decreeing title to the real property be vested in the parties as tenants in common.
In support for her second contention, appellant argues that the Quit-Claim Deed was executed with the intention that the Sundells care for appellant for the rest of her life and as such should be canceled. In an equity action to cancel a deed, we must keep in mind that the cancellation of a deed is the exercise of the most extraordinary power of a court of equity, and this power ought not to be exercised except when clearly justified from a consideration of all the evidence in the case. Rutherford v. Rutherford, 444 S.W.2d 439, 441 (Mo.1969). Further, it has long been held in this state and most recently held that a deed executed in consideration of the grantee’s promise to support the grantor, without any clause looking to forfeiture, reentry or reverter for non-performance and when there is no showing of fraud, mistake, duress, undue influence or unfair advantage on the part of the grantee, is not subject to cancellation but the grantor’s remedy is a suit for breach of contract. Bevins v. Harris, 380 S.W.2d 345, 351 (Mo.1964). Here, appellant could have pursued her proper remedy for breach of contract upon the death of the Sundells by bringing suit against the representative of the estate of Lillian Sundell, but did not. Her suit against respondent was improper. The trial court properly held that there was no privity of contract between appellant and respondent.
Additionally, appellant’s evidence disclosed that the costs of maintaining a person per annum was between $10,000 and $12,000. The Sundells had maintained appellant for seven and one-half years. The *701value of the real property was estimated between $40,000 and $50,000. Respondent is not receiving an unconscionable enrichment as contended by the majority and as a practical matter is only receiving what is legally hers. Thus, the trial court did not err in denying restitution from respondent.
Lastly, contracts to perform personal services are considered as made on the implied condition that the party shall be alive and capable of performing the contract, so that death or disability will operate as a discharge, McDaniel v. Rose, 153 S.W.2d 828, 830 (Mo.App.1941). See also 17A C.J.S. Contracts § 465. In the present case, there was no agreement among the Sundells and appellant concerning reentry or reverter nor was any allegation made that the original deed was obtained by fraud, mistake, duress or undue influence. While the decision denying appellant restitution appears harsh, appellant could have contracted for the right of reentry or re-verter. She did not. As respondent was not a party to the original agreement nor did she assume the Sundells’ personal service obligation and was not a recipient of any unjust enrichment, the trial court did not err in denying restitution.
For the above reasons, I would affirm.