I am unable to concur in the opinion of the court. In my opinion this case falls in the class where the agreement for support of an aged person forms the basis of a lien on the property conveyed. The law applicable appears in Restatement of the Law of Restitution, p. 650, as follows:
"§ 161. Equitable Lien.
"Where property of one person can by a proceeding in equity be reached by another as security for a claim on the ground that otherwise the former would be unjustly enriched, an equitable lien arises.
"Comment:
"a. A court of equity may give restitution to the plaintiff and prevent the unjust enrichment of the defendant not only by imposing a constructive trust and compelling the surrender to the plaintiff of property held by the defendant (see § 160), but also by imposing an equitable lien upon the property in favor of the plaintiff. In some situations the plaintiff is entitled only to enforce an equitable lien; in others he can at his option enforce either an equitable lien or a constructive trust. * * *"
1 Perry on Trusts, Blade's Ed., sec. 226, p. 399, says: "But where a valuable interest passes to one on the faith of a contract he refuses to perform, equity will compel restitution or give other appropriate relief. * * *"
The learned trial court seems to have followed the line of decisions holding that without fraud or overreaching on the part of the defendant in the inception the court will afford no relief. See Lavely v. Nonemaker, 212 Cal. 380, 298 P. 976. Relief of grantor in conveyances in consideration of agreement to support which is broken by grantee is the subject of annotations in 43 L.R.A., N.S., 916, L.R.A. 1917D, 627, and 12 Ann.Cas. 899. In L.R.A. 1917D, 627, the annotator states: "The rule stated in the note appended to Dixon v. Milling Co., supra [102 Miss. 449,59 So. 804, 43 L.R.A., N.S., 916], that, by the weight of authority, where an agreement to support is the consideration for a conveyance of property, it must be performed by the grantee or the grantor may have the contract rescinded, receives the support of the majority of the cases passing upon the question since this note. Thus, it is held that equity will set aside a deed for breach by the grantee of his agreement to support the grantor where this agreement formed the consideration for the deed. * * *" citing Sanchez v. Sanchez, 22 N.M. 95, 159 P. 669; Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A. 1916B, 862, and numerous other cases. *Page 461
The lots upon which the building was constructed by plaintiff were conveyed to the defendant and his wife, Alice Keck, and the contract was made by the plaintiff with them. The plaintiff on cross examination testified:
"Q. Now, did you have any conversation with Mrs. Keck about the building of this property? A. Yes.
"Q. In fact Mrs. Keck was the one you mainly had this business dealing with? A. Both of them."
The motion to dismiss reads, in part, as follows: "that the testimony discloses that the plaintiff entered into the contract by reason of the personal services to be rendered by the deceased, Mrs. Alice Keck; that said Mrs. Alice Keck died on September 11, 1935; that up to the time of her death, and subsequent thereto for at least a short period of time the plaintiff Van Sickle boarded at the restaurant of the Kecks', and the testimony further discloses that during her lifetime Mrs. Keck, the deceased, complied with her agreement to board the plaintiff, * * *"
Following the case of Marcum v. Marcum, 94 W. Va. 686,120 S.E. 73, 34 A.L.R. 133, at page 136, there is an annotation on "Rights and remedies in respect of the property upon the death, in the lifetime of grantor, of the grantee in a deed in consideration of future support". The annotator states: "Generally, covenants in effect to care for and support the grantor in consideration of a conveyance of real estate are construed to be based upon a consideration so peculiar that the total or partial failure of this consideration requires relief of a special character. In the matter of relief to the grantor, such transactions are in a class by themselves. Where the grantor survives the grantee, who, during life, faithfully performed the covenant to support, such relief will be given the grantor as the circumstances and equities of the particular case may require," citing Stephens v. Daly, 49 App.D.C. 389, 266 F. 1009, and cases from Ala., Ga., Ill., Ind., Kan., Ky., Mich., Va., Wash., and Wis. It is true that there was no agreement that plaintiff should have a lien on the property involved in this suit. However, there is no question but that he would have been entitled to a mechanic's lien under out statute. Hobbs v. Morrison Supply Co., 41 N.M. 644,73 P.2d 325. Nor can it be doubted that the plaintiff had this in mind. On cross examination he said: "I was building the building for him and supposed to have a claim on it when I got through." Within the time allowed for filing the lien the agreement for support and burial was made. The right to a lien was a valuable property right and might constitute the corpus of a trust. Griffith v. Tierney, 34 N.M. 387, 281 P. 461.
The only reason suggested for defendant's inability to carry out the agreement for support was his intemperate habit — drunkenness — for a time habitual.
On a motion to dismiss the agreement for support and burial itself furnishes sufficient *Page 462 evidence of age of the plaintiff; but there is other evidence. The plaintiff is no longer following his trade of carpentry, but is keeper of the village hardware store. He testified:
"Q. What business were you then engaged in up there, and what business are you now engaged in? A. At that time I was doing carpenter work, and now I am in the hardware business mostly.
"Q. When you first went up there did you or not engage in the contracting business, — building summer cottages for people? A. Yes."
The majority opinion states that the defendant and the plaintiff are not related. Consanguinity or affinity is not a necessary condition. Anderson v. Reed, supra; Jancovech v. Christensen, 100 Ind. App. 299, 195 N.E. 287; Tysor et ux. v. Adams, 116 Va. 239, 81 S.E. 76, 51 L.R.A., N.S., 1197. Nor is it important who was the mover or who first suggested the making of the agreement for support. Anderson v. Reed, supra; Marcum v. Marcum, supra; Jancovech v. Christensen, supra. And the only evidence of plaintiff's net worth is that he was unable to borrow for investment the sum of $4056.59. This hardly justifies the presumption that he is a man of wealth. Improvidence seems to be a characteristic of old people who enter into this class of contracts, but benevolence should not be penalized.
The reference in the majority opinion to plaintiff's offer to give the money, which it had been agreed was due him, to Mrs. Keck's nieces, who came out before her death and who had been and were at the time of the offer rendering services under humiliating conditions due to the defendant's drunkenness, may seem irrelevant, but when considered with other facts relating to the Keck household appearing in the record, clearly prove that plaintiff was not a stranger within their gates. Plaintiff later furnished funds, at the nieces' request, with which they returned to their home in Pennsylvania. The following testimony also appears: "There was an additional amount which Mr. Van Sickle claimed, which he at different times referred to with Mr. Keck, and that was with respect to disbursements made not in connection with the erection of the building, but after Mr. Keck had been sick and laid up, constituting several payments on the car, and he also admitted Mr. Van Sickle had made all funeral arrangements, and had paid part cash and had executed his note whereby he agreed to pay to the undertaker the balance of approximately $400.00." The fact that plaintiff slept in his own cabin is mentioned, but he seems to have been a useful member of the household. He buried Mrs. Keck although he seemed not to have had sufficient cash in hand to pay the funeral expenses, and furnished funds to her stranded relatives with which to return to their home.
The Statute of Frauds should be no more a barrier to relief in this case where plaintiff was entitled to a statutory lien at the time of the making of the contract for support and burial than in the cases where persons gave absolute deeds in consideration of oral *Page 463 promises for future support. In Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 54 A.L.R. 1173, the court quoted with approval from Wood v. Rabe, 96 N.Y. 414, 48 Am.Rep. 640, as follows (page 422): "`There are two principles upon which a court of equity acts in exercising its remedial jurisdiction, which, taken together, in our opinion entitle the plaintiff to maintain this action. One is that it will not permit the statute of frauds to be used as an instrument of fraud, and the other, that, when a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief. * * * The principle that when one uses a confidential relation to acquire an advantage which he ought not in equity and good conscience to retain the court will convert him into a trustee, and compel him to restore what he has unjustly acquired, or seeks unjustly to retain, has frequently been applied to transactions within the statute of frauds.'" In the case of Reid v. Burns, 13 Ohio St. 49, decided in 1861, by divided court, it was held that where land was purchased by a father in the name of his son, under an oral agreement by the latter to give a home to and support the former upon the land purchased, that by the breach of the agreement to support the contract was rescinded, and the title to the land vested in the father, although the son had conveyed it to a third person who had knowledge of the contract. In Lowman v. Lowman, Ind. App.,12 N.E.2d 961, 969, a case where land was sold by a commissioner in a partition suit, the appellee being one of the owners and having furnished 80% of the purchase price to the appellant, the court said: "If the conveyance had been made directly by the appellant to the appellees, we think an equity court would have no difficulty in holding that the said conveyance, being made upon a condition subsequent, which was breached by the appellees, would either be set aside or the real estate impressed with a lien in favor of the appellant. See Huffmond et al. v. Bence, Adm'r,128 Ind. 131, 27 N.E. 347; Hamilton et al. v. Barricklow et al.,96 Ind. 398; Zoellers v. Loi, Adm'r, 68 Ind. App. 395, 120 N.E. 623,624. But the allegations are that the conveyance was made to the appellees by the commissioners appointed by the court to make the sale in the partition proceedings. Will this fact alone be sufficient to prevent the court from enforcing its judgment by an equitable lien? We think not. Equity will look through the transaction and consider not alone its form, but also its substance. We quote from Barrett v. Lewis, 106 Ind. 120,5 N.E. 910, the following: `The lien which arises in favor of the vendor of land, or of the person to whom purchase money is due, is peculiarly of equitable cognizance. Equity has regard, in such cases, as in others, for the substance, and not the mere form, of the transaction. Disregarding form, a court of equity will not permit substantial equities which are clearly established to be defeated by the interposition of merely nominal or technical distinctions. If, upon looking through the transaction, it appears that a debt is in fact *Page 464 part of the purchase price of land acquired in the transaction out of which the debt arose, no other obstacle intervening, a lien will be declared upon the land so acquired in favor of the person to whom such debt is due.'" See Houston v. Greiner, 73 Or. 304, 144 P. 133. 36 Harv.L.R. 488, says: "Further, there is more reason for refusing rescission in a sale for cash, where the vendor could, if he wished, have retained title as security, than in a case such as the present, where no grantee would consent to such retention of title, in view of the fact, that his own performance is impossible of fulfillment until the grantor's death. It is immaterial to the merits of the plaintiff's case that the defendant's remainder was granted by an outsider, instead of being deeded directly by the complainant. Cf. Houston v. Greiner, supra. Rescission of the deed, however, will not give the plaintiff title. The court properly, then, made use of the remedial machinery of a constructive trust. Cf. Grant v. Bell, 26 R.I. 288, 58 A. 951." In Abbott v. Sanders and Wife, 80 Vt. 179, 66 A. 1032, 13 L.R.A., N.S., 725, 130 Am. St. Rep. 974, 12 Ann.Cas. 898, the court said: "In many cases in different jurisdictions, deeds given to secure the grantor's support have been annulled on general grounds of equity, without much attempt to refer the relief to any specific rule. Peck v. Hoyt, 39 Conn. 9; Penfield v. Penfield, 41 Conn. 474; Jenkins v. Jenkins, 3 T.B.Mon. [Ky.] 327; Reeder v. Reeder, 89 Ky. 529, 12 S.W. 1063; Patterson v. Patterson, 81 Iowa, 626, 47 N.W. 768; Dodge v. Dodge, 92 Mich. 109, 52 N.W. 296; Rexford v. Schofield, 101 Mich. 480,59 N.W. 837; Wilfong v. Johnson, 41 W. Va. 283, 23 S.E. 730. In Illinois the court rescinds the transaction, presuming, if necessary to the relief, that the conveyance was obtained with fraudulent intent. Frazier v. Miller, 16 Ill. 48; Oard v. Oard, 59 Ill. 46; Cooper v. Gum, 152 Ill. 471, 39 N.E. 267. In Oregon it is considered that rescission is not permissible, and the grantor's support is secured by making it a charge upon the property. Watson v. Smith, 7 Or. 448; Patton v. Nixon, 33 Or. 159,52 P. 1048. In Rhode Island a reconveyance is decreed, upon the theory that the deed creates a continuing obligation in the nature of a trust, and that the failure to support is a renunciation of the trust. Grant v. Bell, 26 R.I. 288, 58 A. 951." In all these cases the courts prevented unjust enrichment of defendants who had abused the confidence of old people.
When the defendant and his wife took plaintiff's property in exchange for promise for support and burial a fiduciary relation was created. The plaintiff had confidence in them. He turned over his property to them without security, which he could have easily obtained by the filing of a statutory lien.
The Florida court in Quinn v. Phipps, supra, also quotes from the Supreme Court of Illinois, Mayrand v. Mayrand, 194 Ill. 45, page 48, 61 N.E. 1040, page 1041, as follows: "The term `fiduciary' or `confidential' relation, * * * is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which *Page 465 influence has been acquired and abused — in which confidence has been reposed and betrayed. The origin of the confidence is immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another. * * *"
In Dawson v. National Life Ins. Co., 176 Iowa 362,157 N.W. 929, 933, L.R.A. 1916E, 878, Ann.Cas. 1918B, 230, the Supreme Court of Iowa said: "The fiduciary relation may exist wherever special confidence is reposed, whether the relationship be that of blood, business, friendship, or association, by one person in another who are in a position to have and exercise or do have and exercise influence over each other. * * *"
In Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A.L.R. 945, the court said: "Confidential relations `exist wherever confidence is reposed and accepted, and the one has it in his power, in a secret manner, for his own advantage, to sacrifice those interests of the other which he is bound in honor and good conscience to protect. I Story, Eq.Jur. § 323. The rule embraces both technical fiduciary relations and those informal relations whenever one man trusts and relies upon another.' * * *"
2 Words and Phrases, Fourth Series, p. 49, states:
"`Fiduciary relation' may exist in all cases where there has been special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to interest of one reposing the confidence. It arises wherever trust continuous or temporary is specially reposed in the skill or integrity of another, or property or pecuniary interest in whole or in part or the bodily custody of one person is placed in the charge of another. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706,712. * * *
"The term `fiduciary relation' is a broad one not susceptible of exact definition. It may exist under variant circumstances. It is said to exist `when there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing the confidence.' Roecher v. Story [91 Mont. 28],5 P.2d 205, 210.
"A `fiduciary relation' is not limited to cases of trustee and cestui que trust, guardian and ward, attorney and client, or other recognized legal relations, but it exists in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. Catherwood v. Morris, 345 Ill. 617, 178 N.E. 487, 493.
"`Fiduciary relation' exists where there is special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to interests of one reposing the confidence. Neagle v. McMullen, 334 Ill. 168, 165 N.E. 605,608.
"`Fiduciary relation' exists where there has been a special confidence reposed in one who in equity and good conscience is *Page 466 bound to act in good faith and with due regard to interests of one reposing confidence. Abbitt v. Gregory, 201 N.C. 577,160 S.E. 896, 906. * * *
"Whenever influence is acquired and abused, or confidence is reposed by one and accepted by another, `fiduciary relation' exists, within protection of equity. Swiney v. Womack, 343 Ill. 278, 175 N.E. 419, 423."
25 C.J. 1118, is as follows:
"Fiduciary Relation. — a. In General. It is difficult to define the term `fiduciary relation;' it is a very broad one.
"(§ 9) b. When It Exists. It is a relation in which, if a wrong arises, the same remedy exists against the wrong-doer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust. The relation may exist under a great variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith, and with due regard to the interests of the one reposing the confidence. It arises wherever a trust, continuous or temporary, is specially reposed in the skill or integrity of another, or the property or pecuniary interest, in the whole or in a part, or the bodily custody of one person is placed in the charge of another. Courts of equity have refused to set any bounds to the circumstances out of which a fiduciary relation may spring. It not only includes all legal relations, such as attorney and client, broker and principal, executor or administrator, and heir, legatee or devisee, factor and principal, guardian and ward, husband and wife, partners, principal and agent, trustee and cestui que trust, but it extends to every possible case in which a fiduciary relation exists in fact, and in which there is confidence reposed on one side and resulting domination and influence on the other. * * * the origin of the confidence and the source of the influence are immaterial. * * *"
Rest. Restitution, § 201(1) says: "Where a fiduciary in violation of his duty to the beneficiary transfers property or causes property to be transferred to a third person, the third person, if he gave no value or if he had notice of the violation of duty, holds the property upon a constructive trust for the beneficiary."
Rest. Contracts, § 384, says: "(1) Damages and restitution are alternative remedies, only one of which will be given as a remedy for a breach of contract."
5 Williston on Contracts, Rev.Ed., p. 4064, states: "The right of rescission and restitution generally exists as an alternative remedy to an action for damages where there has been repudiation or a material breach of a contract, and is most commonly exercised when the aggrieved party has performed fully or in part, and wishes to recover what he has given or its value. * * *" And on page 4068 of the same volume appears: "Where the consideration of the conveyance is a promise to support the grantor, failure by the grantee to perform will ordinarily justify rescission *Page 467 and cancellation of the conveyance. * * *"
In Dennerlein v. Martin, 247 N.Y. 145, 159 N.E. 891, the court said (page 892): "Though the evidence does not establish that the conveyance of plaintiff's property was induced by fraud, yet doubtless she may be entitled to a decree rescinding that conveyance if the defendant willfully fails and refuses to carry out her promise to provide suitable support and other remedy would be inadequate. In consideration of that promise the plaintiff stripped herself of her property; if the consideration totally fails she may demand back what she has paid. See opinion of Kellogg, J., in Rosenwasser v. Blyn Shoes, Inc., 246 N.Y. 340,159 N.E. 84, and case cited therein. * * *"
In Rosenwasser v. Blyn Shoes, Inc., referred to above, the court stated (page 85): "The cases are authority for the proposition that the default must be such that it destroys the essential objects of the contract. It has likewise been said that rescission, and a recovery of moneys paid, may not be had where the default is in respect to a contract provision which is merely `subsidiary' and `which does not go to the entire consideration' (Johnson Forge Co. v. Leonard, 3 Pennewill (Del.) 342, 51 A. 305, 57 L.R.A. 225, 94 Am. St. Rep. 86); that the `breach of * * * an independent covenant, a covenant which does not go to the whole consideration of the contract and is subordinate and incidental to its main purpose,' is not sufficient (Kauffman v. Raeder (C.C.A.) 108 F. 171, 179, 54 L.R.A. 247); that `the object of the contract must have been defeated or rendered unattainable' by a default in respect to a matter `of first importance to the accomplishment of the object of the contract' (Selby v. Hutchinson, 4 Gilman (Ill.) 319, 333); that the default must be `destructive of the objects of the contract' (Mahon v. City of Columbus, supra [58 Miss. 310, 38 Am.Rep. 327]); that it must be `so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract'; and that there must be `a breach going to the root of the contract.' Callanan v. Keeseville, A.C. L.C.R. Co., supra [199 N.Y. 268, 92 N.E. 747]. * * *"
The plaintiff prayed for an equitable lien and asked for much less than he would have been entitled to under the sound rule followed in Chadwick v. Chadwick, 59 Mich. 87, 26 N.W. 288, of adding interest to the amount due plaintiff and deducting the amount agreed upon as the value of plaintiff's board. The status quo can be restored in this case where plaintiff was entitled to a lien as well as where land has been conveyed. The rule applies to choses in action of this class. Sec. 354, Rest. Contracts, reads as follows:
"Specific Restitution of Land, Goods and Certain Choses in Action. If the performance received from the plaintiff by the defendant is the transfer of land, or of goods or choses in action of a unique character, and the defendant thereafter commits a total breach, the plaintiff can get a decree, *Page 468 on such terms as justice may require, for the specific restitution and retransfer of the property if the circumstances are such that other remedies are inadequate, and if
"(a) the subject of the property still exists and the interests of innocent purchasers for value and of the defendant's creditors will not be unjustly affected; * * *
"Comment:
"a. Where the buyer of land commits a total breach after its transfer to him, the vendor's remedies by way of decree for specific performance or judgment for the contract price or for damages or for restitution in money are usually sufficient to do justice, especially where there is security afforded by a grantor's lien or a mortgage. There are cases, however, in which such a judgment or decree is incapable of enforcement, and either there is no lien or mortgage on which to rely or the security is inadequate because of the impossibility of selling at an adequate price. There are also cases where the defendant has promised a performance other than the payment of money, as where he has promised to support the plaintiff for life, in which a decree for specific performance is not available and a judgment for damages would be an inadequate remedy. In such cases, specific restitution is a remedy that the courts have power to grant. * * *"
And Rest. Contracts, sec. 355, states:
"Restitution with Respect to Contracts within a Statute of Frauds. (1) The rules governing restitution as a remedy against one in default on a contract that is unenforceable by reason of a Statute of Frauds are the same as in the case of contracts not within the Statute, except as qualified by the rules stated in Subsections (2, 3). * * *"
Many courts have followed the course of fixing an equitable lien in cases of this sort rather than rescission. In Re Waterson, Berlin Snyder Co., 2 Cir., 48 F.2d 704, the court said (page 709): "Moreover, such a drastic remedy as rescission has often been withheld, and an equitable lien upon the subject-matter involved has been substituted even where rescission might have been allowed. This is illustrated in various cases where conveyances of land have been made in consideration of maintenance and support. Rescission has sometimes been granted because of a fundamental breach of the contract on the part of the grantee. Russell v. Carver, 208 Ala. 219, 94 So. 128; Russell v. Robbins, 247 Ill. 510, 93 N.E. 324, 139 Am.Rep. 342; Maddox v. Maddox, 135 Ky. 403, 122 S.W. 201; Grant v. Bell, 26 R.I. 288, 58 A. 951; Sweeny v. Patton, 134 Va. 117, 113 S.E. 715. But in other cases the relief afforded has been through the imposition of an equitable lien upon the property conveyed, enforceable at the suit of the grantor. Stephens v. Daly, 49 App.D.C. 389, 266 F. 1009; Chase v. Peck,21 N.Y. 581; Stehle v. Stehle, 39 A.D. 440, 57 N.Y.S. 201; Webster v. Cadwallader, 133 Ky. 500, 118 S.W. 327, 134 Am. St. Rep. 470; Simmons v. Shafer, 98 Kan. 725, 160 P. 199; Patton v. Nixon,33 Or. 159, 52 P. 1048; Abbott v. *Page 469 Sanders, 80 Vt. 179,66 A. 1032, 13 L.R.A., N.S., 725, 130 Am. St. Rep. 974, 12 Ann.Cas. 898; Morgan v. Loomis, 78 Wis. 594, 48 N.W. 109. The Court of Appeals of Virginia said in Keister v. Cubine, 101 Va. 768, 45 S.E. 285,286, when imposing a lien, instead of ordering a rescission and decreeing a reconveyance: `The power of a court of equity in a proper case to rescind the contract and restore the property to the grantor would certainly include the power to afford a less drastic relief, if the facts pointed to the latter as more consonant with justice.' * * *"
In Leary v. Corvin et al., 181 N.Y. 222, 73 N.E. 984, 106 Am. St. Rep. 542, 2 Ann. Cas. 664, the court said (page 986): "It does not follow, however, that the plaintiff is entitled to no relief. She made her contribution to the purchase of the property on the faith of an agreement with her father, which he has violated by failing to secure to her the property upon his death, and the relation between the parties was one of trust and confidence. The plaintiff's money having been thus appropriated to the acquisition of the property, she has an equitable lien thereon for its amount; and, as she has been induced to let it remain in the property in reliance upon her father's promise, without receiving any compensation therefor, now that that promise has been violated she is justly entitled to interest from the time of the original payment to her father. * * *"
There is an annotation on Conveyance in Consideration of Support as creating lien or charge upon the land conveyed in 64 A.L.R., p. 1250. In Bruer v. Bruer et al., 109 Minn. 260,123 N.W. 813, 28 L.R.A., N.S., 608, the court held (page 815): "In view of the decisions of this court in the cases referred to, and the general trend of judicial opinion elsewhere (Abbott v. Sanders, 80 Vt. 179, 66 A. 1032, 13 L.R.A.[N.S.] 725 [130 Am. St. Rep. 974, 12 Ann.Cas. 898]), we are of opinion, and so hold, that the form of agreement of support is unimportant. Its effect is in no way changed, whether it appear in the body of the conveyance, or in a separate instrument by way of bond or mortgage; and, as it appears in this case the defendant had failed and refused to carry out the conditions of his agreement, plaintiff is entitled to such relief as the evidence may, on trial, show her entitled to. We cannot hold, in view of prior decisions, that the agreement constituted a condition subsequent, entitling plaintiff to a return of the land; but, as remarked in the Johnson Case [Johnson v. Paulson], [103 Minn. 158,114 N.W. 739] the court may grant such relief as the facts will in equity and good conscience justify. For this relief the complaint is sufficient, and contains all necessary and essential allegations."
The sole cause of defendant's condition, so far as the record shows, is due to his intemperance. Drunkenness is not an excuse for failure to carry out an agreement to support, nor does it excuse the transfer of the property in an effort to defraud plaintiff. In my view of the case the *Page 470 defendant has no right to take by inheritance free of lien for the future support of plaintiff his wife's half of the property. The judgment will shock the conscience of those who believe that right should prevail.
For the reasons stated I dissent.