dissenting. I am of the opinion that the judgment. of the court below should be reversed on the ground that it was error to overrule the general demurrer. The doctrine applicable here is laid down in the ease of Brand v. Power, 110 Ga. 522 (36 S. E. 53), where it is said: “An absolute deed of conveyance will not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by him in consideration of which the deed was executed.” The quotation is from the first headnote. In the opinion in that case it was said: “Even if we treat the petition as sufficiently alleging that the undertaking of the defendant to provide a support for his mother was the sole consideration of the deed, which is by no means made clear, his failure to do as he promised amounts to nothing more than a mere breach of contract, for which the plaintiff had an adequate remedy by a proper action for damages. The deed passed the title to him without condition or qualification, as it contained no language making his title in any way dependent upon compliance with his contract to support his mother. This being so, she had no more right to cancel the deed for a breach of this contract than she would have had if she had sold her son the land for a specified amount of purchase-money and he had failed or refused to make payment thereof.” In the present case the title passed, undoubtedly. The consideration of the deed made by the father to the daughter, it is alleged, was an agreement upon the part of the daughter that if the father “would make her a deed to the tract of land described in the petition, she and her husband would settle on it where she could and would render petitioner and her mother during the remainder of their lives such services as they might need when sick and would be a neighbor and companion to -them in any way possible.” It is further alleged that when petitioner made and delivered the deed to the defendant to the lands in question she and her husband moved away from the home of petitioner, and failed and refused to settle upon the lands conveyed to her or to perform the services which she agreed to perform, “which was the consideration of the deed made by *385petitioner to the defendant.” It is not contended or pretended that there was a condition precedent with which it was necessary that the daughter should comply before the title vested. There is no doubt that the title vested. If it did, then it was necessary for ■the plaintiff, in order to have a cancellation, to show that the execution of the deed was procured through fraud, or that there was a condition subsequent that was violated by the vendee. Nothing alleged in this petition can be construed into a condition subsequent; and no facts showing fraud, by which the execution of the deed was procured, are alleged. Therefore, no ground for cancellation of the deed.
I am here construing the deed as if it had been reformed; am treating it as reformed in accordance with the prayer for reformation. There is no breach of a condition that would • authorize a court .of equity to cancel the conveyance. In the opinion of the majority it is said, “The special facts alleged in the petition authorized an equitable action for rescission.” From the authorities cited to support this ruling I assume that the special facts to which allusion is here made are the allegations of fraud and of insolvency. As to the allegations of fraud, I am of the opinion that no fraud is sufficiently alleged. There is nothing in the petition upon this subject save the general allegations that the conduct of the daughter was fraudulent; and the broad, bare charge of fraud amounts to no more than the conclusion of the pleader: ‘Where a bill seeks to set aside a sheriff’s sale, on the ground of fraud by the purchaser, and to enjoin the sheriff from making a title to him, some specific fraudulent conduct on the part of the purchaser must be charged; it is not sufficient to make a general allegation of fraud, but the bill must allege the particular acts or declarations of the defendant, which are relied on to constitute the fraud.” Orr v. Brown, 5 Ga. 400. The demurrer to this part of the petition did not admit the truth of the facts thus pleaded.
Now as to the charge of insolvency, I have this to say: If title passed, and the deed of conveyance was not void for fraud, then insolvency is not a ground for cancellation. In the case of Davis v. Davis, 135 Ga. 116 (69 S. E. 172), it was said: “Where a conveyance of land was made from a father to his son on consideration of $10.00 and love for the son, and further that the son should support and maintain the father for and during his natural *386life, and the support and maintenance were made a charge upon the land, the conveyance would not be defeated by mere failure of the son to support the father. Jones v. Williams, 132 Ga. 782 (64 S. E. 1081); Thompson v. Lanfair, 127 Ga. 557 (56 S. E. 770). If there were a failure to support the father, ordinarily an action would lie for the value of the support. Kytle v. Kytle, 128 Ga. 387 (57 S. E. 748); Lindsey v. Lindsey, 62 Ga. 546. Or, if the special facts authorized it, an equitable action for rescission might lie. McCardle v. Kennedy, 92 Ga. 198 (17 S. E. 1001, 44 Am. St. R. 85).” It may be that the writer of the opinion in the case of Davis v. Davis, in making the statement, “Or, if the special facts authorized it, an equitable action for rescission would lie,” had it in his mind that insolvency would be one of the special facts authorizing rescission. We infer this much from the authority referred to in support of the proposition, which is McCardle v. Kennedy, 92 Ga. 198 (supra); for in the McCardle case it was said: “The failure to pay the purchase-money, or the failure to maintain and support the grantor, if that be the 'consideration, is not a sufficient reason for rescinding the contract of sale. The remedy in such cases is an action for the . . value of the support withheld, or an equitable action to rescind the contract, if the grantee is insolvent, or there are any other special facts which would make this the appropriate relief. Lindsey v. Lindsey, 62 Ga. 546, 550; Nathans v. Arkwright, 66 Ga. 179, 186; 3 Wash. Real Prop. (5th ed.) § 618; Lake v. Gray, 35 Iowa, 459.” But it will be noticed here that the dictum to the effect that an equitable action might be maintained to rescind the contract, if the grantee is insolvent, is purely obiter. We say this because it is clear that the question thus seemingly decided was not involved in the ease; that is, whether insolvency or the other facts alleged would authorize rescission. To support the proposition laid down in this obiter dictum, Lindsey v. Lindsey, 62 Ga. 546, was cited. In that ease it was said: “The consideration of the deed is the continued support of the father by this son, to whom it was made. It is not a condition precedent. It is not pretended that he is unable to comply with his contract, and the only dispute is in respect to whether he has done so or not. The remedy is for failure to do so, the contract being executed, by action at law for damages. Such remedy being adequate and complete at law, equity will not *387interfere to set aside the conveyance. These points control the ease, and the judgment is affirmed. See 31 Ga. 512; 43 Ga. 79; 6 Ga. 325; Code, § 3095; 5 Ga. 400.” We have quoted the entire second division of the opinion; and the second headnote states the same principle, but adds, “there "being no allegation of insolvency in the grantee.” No one, after a consideration of the Lindsey case, can contend that the language, “there being no allegation of insolvency in the grantee,” is anything but obiter. There is nothing in the opinion that calls for it; there is nothing in the facts that calls for it. But it was caught up from there like a spark and carried to where it was dangerous. And now see “how great a matter a little fire kindles.”