Penfield v. Penfield , 41 Conn. 474 ( 1874 )

Pardee, J.

We have here the case of a father, advanced in years, conveying his estate to a son upon his promise to care for and support his father thereafter and look to the estate for his recompence; but the son forgot both the filial duty and the legal obligation resting upon him and violated his agreement. For this the father asks that a decree may be passed compelling the son to reconvey the estate.

The respondent contends that he cannot be disturbed in the possession of the estate, inasmuch as he occupies the position of a purchaser for an adequate consideration; in this, that for several years prior to the conveyance he furnished more than half of the family supplies, and subsequent thereto nearly the whole, and has paid the taxes on the property, including one tax laid before the conveyance, and the interest on the mortgages.

Notwithstanding all this, the record makes it quite certain that the real motive which impelled the father to make the conveyance was the fear of possible poverty and want as the result of the threatened suit; a fear which the advice of counsel had not expelled from his mind; and that the real and only consideration for the conveyance is the agreement of the respondent to take good care of and provide a comfortable home for the father and his family.

The previous liberality of the son was indeed in the mind of the father, and helped to beget the confidence and trust which are implied in all the circumstances of this transfer. But the son then made no claim that his father was indebted to him in any amount, definite or indefinite, for that which he had done for the family in the past; the father recognized no such indebtedness; nor did he undertake to liquidate a. specific debt by this transfer of his whole estate.

The payment of taxes by the respondent, subsequent to the conveyance, including one laid previous thereto, and the payment of interest on the mortgages, were necessary for the protection of the estate which he had undertaken to hold, and the family supplies were furnished in pursuance of his agreement.

But this partial and temporary performance of a contract which must continue in force until it is terminated by the voluntary act or death of the father, cannot be a payment of such a consideration for the estate as will entitle the respondent to hold it as against the petitioner after such a violation of the promise upon which he received it as is disclosed by this record.

The respondent urges that the petitioner has forfeited his right, both to continued maintenance and a reconveyance of the estate, by misconduct on his part, the character of' which is described with particularity by the committee.

But, while it is true that the acts and words of the petitioner were well calculated to disturb the peace of his family, we cannot say that the respondent can find in them legal justification for his neglect and refusal to comply with the condition upon which he accepted the conveyance.

In Peck v. Hoyt, 39 Conn. R., 9, which presented the case of a breach of an implied contract similar in character to that which was expressly made by this respondent, this court advised the Superior Court to decree a reconveyance of the estate.

The inconsiderable sums which the respondent has paid for taxes on the property and interest on the mortgage, since the conveyance to him, are fully balanced by his use of the property.

We therefore advise the Superior Court to pass a decree requiring the respondent to reconvey the estate to. the petitioner.

In this opinion the other judges concurred.