This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Failure of consideration for an executed conveyance of realty gives the grantor no right at law to avoid his conveyance.1 Whether a conveyance of realty can be rescinded in equity for failure of consideration, or whether the grantee can only maintain an action for breach of the contract in consideration of which the conveyance was made is a question upon which there is some divergence of judicial opinion. If A conveys to B on consideration that B will support A, and B does not furnish support, the weight of authority is that A may have rescission.2 Rescission has been given where the grantee failed to give such support,3 as by making the grantor a public charge,4 or where he refuses to furnish it,5 and conveys to others the realty conveyed to him in consideration of such promise,6 or where on the death of the grantee his heirs refuse to furnish it.7 Such a conveyance may be set aside for cruel treatment of grantor,8 or harsh treatment,9 but not for slight annoyances.10 The fact that the consideration expressed in the deed is one dollar and love and affection,11 or that the property conveyed was encumbered by a mortgage not mentioned in the deed but known to the grantee,12 does not prevent such right of rescission. Such contracts are often complicated by questions of mental infirmity of the grantor,13 insanity of grantor,14 or undue influence exerted by the grantee,15 which makes the right of rescission still clearer. Equity may on giving rescission make allowance for permanent improvements made by the grantee,16 making him account for timber cut and removed.17 Equity may give compensation instead of rescission,18 mpking such compensation a lien upon the premises conveyed,19 and such lien must be superior to the interests of the remainder-men where grantor has conveyed to grantee for life, remainder to grantee's children.20 A conveyance by a husband to a trustee for his wife's support in consideration of separation may be cancelled if cohabitation is resumed.21 In other cases, it seems to be held that equity will decree rescission only if special facts such as the insolvency of the grantee and his consequent inability to respond in damages22 exist. The grantor's remedy is said to be an action upon the contract.23 So breach of a contract to establish and operate a manufacturing business upon realty conveyed in consideration of such contract does not entitle the grantor to rescission. His remedy is an action on the contract for damages.24 Equity may refuse rescission but give compensation,25 and make it a lien upon the realty.26 A conveyance of realty made in consideration of a reconveyance,27 or a devise thereof,28 may be set aside for failure of consideration if such reconveyance or will is so defective as to be invalid. A conveyance made in consideration of a contract to devise cannot be rescinded unless specific performance proves impracticable.29
6 Tibbetts v. Sartwell, 67 N. H. 418; 29 Atl. 411.
7 Payne v. Loan, etc.. Co., 54 Minn. 255; 55 N. W. 1128.
1 Contract for support. McCar-dle v. Kennedy, 92 Ga. 198; 44 Am. St. Rep. 85; 17 S. E. 1001.
2 McClelland v. McClelland, 176 111. 83; 51 N. E. 559; Dorsey v. Wolcott, 173 111. 539; 50 N. E. 1015; Kusch v. Kusch. 143 111. 353; 32 N. E. 267; Walker v. Walker, 104 la. 505; 73 N. W. 1073; Wilfong v. Johnson. 41 W. Va. 283; 23 S. E. 730; Glocke v. Glocke, 113 Wis, 303; 57 L. R. A. 458; 89 N". W. 118; Reoch v. Reoch, 98 Wis. 201;
73 N. W. 989; Morgan v. Loomis, 78 Wis. 594; 48 N. W. 109; Bogie v. Bogie, 41 Wis. 209.
3 Kusch v. Kusch, 143 111. 353; 32 N. E. 267; Reoch v. Reoch, 98 Wis. 201; 73 N. W. 989.
4 Potter v. Woodruff, 92 Mich. 8; 52 N. W. 83.
5 Wilfong v. Johnson, 41 W. Va. 283; 23 S. E. 730.
6 Wilfong v. Johnson, 41 W. Va. 283; 23 S. E. 730.
7 Cree v. Sherfy, 138 Ind. 354; 37 N. E. 787; Morgan v. Loomis. 78 Wis. 594.
8 Dodge v. Dodge, 92 Mich. 109; 52 N. W. 296.
9 As where the grantor is the grantee's mother. Patterson v. Patterson, 81 la. 626; 47 N. W. 768.
10Tuit v. Smith, 137 Pa. St. 35; 20 Atl. 579.
11 Walker v. Walker, 104 la. 505; 73 N. W. 1073.
12 McClelland v. McClelland, 176 111. 83; 51 N. E. 559.
13 Morgan v. Loomis, 78 Wis. 594; 48 N. W. 109.
14 Potter v. Woodruff, 92 Mich. 8; 52 N. W. 83.
15 Dorsey v. Wolcott, 173 111. 539; 50 N. E. 1015.
16 Morgan v. Loomis, 78 Wis. 594; 48 N. W. 109.
17 Morgan v. Loomis, 78 Wis. 594; 48 N. W. 109.
18 Boyden v. McRoberts, 88 Mich. 134; 50 N. W. 115.
19 FitzPatrick v. FitzPatrick. 91 Mich. 394; 51 N. W. 1058.
20 Boyden v. McRoberts, 88 Mich. 134; 50 N. W. 115.
21 Smith v. King, 107 N. C. 273; 12 S. E. 57.
22McCardle v. Kennedy, 92 Ga. 198; 44 Am. St. Rep. 85; 17 S. E. 1001.
23 Gardner v. Knight, 124 Ala. 273; 27 So. 298.