Hurley v. McCallister

Citations

• 19 S.D. 381
• 103 N.W. 644
• 1905 S.D. LEXIS 53

Syllabus

<p>1. Where a conveyance, in consideration of support, bound the grantee to discharge incumbrances and to pay the grantor an annuity, a voluntary acceptance by the grantor of an annuity, after having served the grantee with a demand for reconveyance, based on a default consisting in failure to discharge incumbrances, constitutes a waiver of such default and of any right of forfeiture arising thereform.</p> <p>2. A father conveyed property to his son in consideration of the assumption by the latter of mortgages on the premises, the payment of an annuity for the support of the father during his life, and the payment of the expenses of the last sickness and funeral of the father in case he should not have money or property enough to pay the same. No personal services were required of the son, nor was it contemplated that the father should become a member of his family. The contract expressly provided that it was for the benefit of the father, and not for the benefit of any other person, and bound the son, “his heirs, executors, administrators and assigns.” The son subsequently conveyed the land, and the father accepted payments of the annuity from the son’s grantee. Held, that the son’s obligations under the contract would be construed as assignable, especially in view of construction placed on the contract by the parties.</p>