#### Phillips v. Phillips.

Opinion delivered March 7, 1927.

*3 John L. McClellan, for appellant.

D. J). Glover, for appellee.

Hart, C. J.,

(after stating the facts). According to the evidence of Joe Phillips, the decision of the chancellor was correct. Accepting his testimony as representing the true facts in the case, Joe Phillips took the land upon a condition .subsequent; the sole consideration' for the conveyance to him by his father was the home comfort he was to give to his father and the support of his mother in her declining years, if she should outlive her husband. Thus, under the real consideration of the deed, a continuous and fixed duty rested upon the son to support his mother. He admitted in his own testimony that no amount of money was paid by him to his father as a consideration for the deed, and that the real consideration was the comfort and support he was to give his parents in their declining years. No part of the $500 recited as the consideration in the deed was ever paid or intended to be paid. The real consideration was to secure the means of support for his father and mother. According to the testimony for the plaintiff, the defendant failed and refused to support his mother after the death of his father. The defendant admits that he quit supporting his mother hut attempts to justify his action on the ground that she refused to live with him any longer, and went to live with some of her other children.

The ground for equitable relief in cases of this sort, under our decisions, arises from the fraud which the circumstances of the case show would be perpetrated but for such interposition of the court upon the party asking such relief. Where a deed is executed in consideration of the agreement by the grantee to support the grantor or the grantor.and his wife, and this agreement is made by the grantee for the fraudulent purpose of securing the deed and without intending to carry out the condition of the deed, this constitutes a fraud avoiding the conveyance, and equity will set it aside. Salyers v. Smith, 67 Ark. 526, 55 S. W. 936; Whittaker v. Trammell, 86 Ark. 251, 110 S. W. 1041; Priest v. Murphy, 103 Ark. *4 464, 119 S. W. 98; and Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15.

In the case at bar Abe Phillips, the grantor in the deed, continued to reside upon the land up to the time of his death, and Joe Phillips made no attempt to obtain possession of it. He admits that no paft of the consideration named in the deed was paid and that it was never intended to be paid. He also admits that the real consideration was that he should support his mother if she outlived his father. He did not. do so, and these circumstances give rise to the presumption of the abandonment, of his contract to support his mother and of a fraudulent intent upon his part in entering into it. In other words, his refusal and neglect to carry out the promise of support to his mother raises the presumption that Joe Phillips did not intend to comply with his contract in the first instance, and that therefore the contract was fraudulent in its inception, and the chancery court was justified in canceling the deed for fraud in procuring it.

Therefore the decree will be affirmed.