majority"> Connor, J.

It is well recognized in the law that marriage is to be regarded and dealt with as a valuable consideration for a contract. See Winslow v. White, 163 N. C., 29, 79 S. E., 258. The deed executed by the plaintiff to the defendant in the instant case is, therefore, not a voluntary deed. It was executed for a valuable consideration.

The promise of the defendant to the plaintiff that after her marriage to the plaintiff she would live with him and take care of him so long as both should live is, at most, a condition subsequent. The breach of the promise by the defendant, if wrongful as contended by the plaintiff, does not affect the validity of the deed. See Willis v. Willis, 203 N. C., 517, 166 S. E., 398, and Jackson v. Jackson, 222 Ill., 46, 78 N. E., 19, 6 L. R. A. (N. S.), 785.

In no aspect of this case is the plaintiff, on the facts shown by the evidence at the trial, entitled to the equity of rescission. The plaintiff manifestly cannot restore the consideration which he has received from the defendant for his deed. See May v. Loomis, 140 N. C., 350, 52 S. E., 728. In this case it is said that as a general rule a party is not allowed to rescind when he is not in a position to put the other party in statu quo by restoring the consideration passed.

Since the trial of this action, and pending the appeal to this Court, the plaintiff has died. H. W. B. Whitley, his executor, was duly made a party plaintiff in this Court.

There was no error in the trial of this action. The judgment is

Affirmed.

Citation profile

How this case has been treated — in progress