Original Owner: Jewell Anderson
1970: Jewell’s will Frank
1973: Jewell’s deed Altha
1975: Altha’s deed  William
1977: Jewell died
Frank’s argument: The will was signed first, making him the original grantee. He also
argues that Altha did not have good title because there was no consideration for her
taking of the deed in the first place, thus she cannot convey good title to William
William’s argument: Deeds do not need to be transferred by consideration. Even with
consideration, the promise of consideration is only a covenant, and if breached, it does
not destroy title, it merely gives the purchaser a cause of action
Failure of consideration by itself it not enough to cancel a deed. If a deed recites
consideration, but the consideration was not performed, the party has a cause of action.
Here however, Altha not only did not pay consideration, she fraudulently misrepresented
the fact that she could not fulfill and had no intention of performing the support
obligation
.
Fraud is deducible from artifice and concealment as well as from affirmative conduct of a
character such as tends to deceive. If there is a duty to speak, fraud may be found in the
concealment of a material fact. If a person sustains towards another a position of trust
and confidence, his failure to disclose facts that it is his duty to disclose is as much fraud
as would be actual misrepresentation of true facts. That is to say, fraud may exist where
there is a concealment of a material fact that should be divulged, as well as where there is
a positive misrepresentation of a material fact.
Holding: Conveyance to William thru Altha is rescinded