Page:Harvard Law Review Volume 12.djvu/579

NOTES. 559 equity for the benefit of the equitable assignee. If, on the other hand, the legal claim survived, the conclusion is inevitable that the legal title passed to the State ; and although the assignee may have had a legal power of attorney, irrevocable because coupled with an interest, to sue in the name of the assignor, the court had properly no right to allow him to sue in the name of the State when the State had obtained the title. Only upon the first view can these cases be supported ; but even if they are sup- ported upon the second view they do not go to the length of enforcing a trust against the State ; the exercise of the legal power of attorney by the assignee would call upon the State for mere inaction, not for any pos- itive action. In the principal case the creditors and shareholders could not compel the Crown to yield to their claims ; that would be in effect compelling the Crown to act as trustee. But it is important to note that their equitable claims still existed, and that the Crown was morally bound to recognize them ; the creditors and stockholders might well succeed by petition to the Crown. Conveyances in Consideration of Support. — In dealings between father and son there is often a lack of that careful regard to self-interest that marks ordinary business transactions, and in conveyances in consid- eration of support there is frequently a disregard of the most ordinary precautions. Cases of misplaced confidence have caused the courts much anxiety, and have led to the adoption of some very doubtful prin- ciples of law. In Fayette v. Ferrier et al., 55 Pac. Rep. 629 (Wash. Sup. Ct.), a father conveyed his farm to his son in consideration of the son's promise to support him during life. After faithfully performing for a time, the son mortgaged the premises, and a few years later refused to perform further. The father filed a bill to have the property returned to him, and as the mortgagee knew all the facts the court ordered a reconveyance. The authority on the point is slight. All the cases date back to Feid v. Burns, 13 Ohio St. 49 [r86i], which had for its sole authority a case where the reconveyance was decreed for fraud, and where the failure to support was a mere incidental fact. Tracy w. Sacket, i Ohio St. 54. All the cases tend more to stating results than to giving reasons. The argument rests mainly on grounds of natural justice : that pecuniary damages are inadequate to compensate for the loss of the son's personal service ; that nothing less than a right to revest the whole estate will give adequate protection. The result reached appeals to one's sense of justice. Can it be supported in principle? The conveyance is absolute. The parties do not think of possible default, for if they did a mortgage would certainly be taken as security. No condition or trust is contemplated and none is expressed. How, then, can the father retain any interest in the land ? If the son had contracted to pay an annuity for life in return for the land, the transaction would be regarded as a sale, and the father would have a continuing vendor's lien on the land for the payment. 2 Dent, Vendors and Purchasers, 6th ed. 830. Why is not this also true in the principal case? The price of the land is the support for life. This view probably would support all the cases so far decided, for they have all been cases where the property was small in value, and where the whole sum that could be realized by a sale would probably be inadequate to insure the father's support in the future. In decreeing a reconveyance