The opinion
The foregoing opinion was filed at the June, 1931, term of this court. At the October, 1931, term a petition for rehearing was allowed. Since that time we have re-examined the record, together with the briefs of the respective counsel. After so doing we still adhere to the belief that the conveyance was made in consideration of appellees' promise to support and care for appellant as long as he will live and that the promise was made by appellees with no intention of carrying it out. The transaction was a gross abuse of the confidence reposed in appellees and "is tainted throughout by a fraudulent intent, which ripened into a wicked consummation." ( Oard v. Oard , 59 Ill. 46 .) Where an agreement to care for and support the grantor is the consideration for a deed, the subsequent conduct of the grantee may warrant the presumption that the deed was secured with a fraudulent intent on the part of the grantee not to perform the condition of the contract. If there is a substantial failure or refusal to perform the agreement equity will set aside the deed. DiRosa v. Sammarco , 278 Ill. 46 ; Luttrell v. Wyatt , 305 id. 274.
The degree of intoxication of appellant at the time he executed the deed is not of controlling importance. If he was induced by fraudulent promises of support made to him on the day of its execution and upon a number of previous occasions, equity will set the deed aside whatever may have been his state of sobriety. However, we think the evidence clearly shows he was in a high state of intoxication throughout the day of April 3.
The decree will be reversed and the cause remanded, with directions to enter a decree setting aside the conveyance.
Reversed and remanded, with directions. *Page 108