
58 S.E.2d 368 (1950)
231 N.C. 572
CASSTEVENS
v.
CASSTEVENS et al.
No. 237.
Supreme Court of North Carolina.
March 22, 1950.
*370 A. T. Grant, Mocksville, F. D. B. Harding, Yadkinville, for plaintiff, appellee.
Hall & Zachary, Yadkinville, for defendants, appellants.
SEAWELL, Justice.
The theory on which this case was tried and the history of its progress through the lower court challenges the ingenuity of the reviewing board in dealing with it, without, ex mero motu, raising questions of error or posing hurdles which litigants on both sides took in stride, or regarded as nonexistent. Some of the questions which might engage the attention of counsel and of the court on retrial may be: The nature of the estate conveyed by the deed as affected by the condition subsequent attached to it; the remedy which may be demanded by the plaintiff in case of nonperformance, either as cograntor, or as beneficiary of the condition,whether as upon covenant or for rescission; and whether, under the facts of the case as they may then develop and applicable law, it would be competent for the trial court to make any sum recovered a lien upon the land.
A study of these problems, if it does not lead the parties to compose their differences (rather than risk much and gain little), will at least give the courts an intelligent opportunity to do justice under law.
The case was tried in the lower court upon the theory that the plaintiff was entitled to recover, if at all, for the breach of contract for support made a condition in the deed, and that the damages might be assessed and recovered upon that principle; and that those damages might be fixed as a definite monthly sum to measure past breach, and future liability; and under the issues in the case the judgment was framed with reference to this fixed and invariable sum which, in the estimate of the testifying witnesses, might represent the obligation of the defendants throughout the period considered, past, present and future; and the award given by the jury on that principle both for past damage and prospective satisfaction of the terms of the contract was made a lien upon the land.
This Court is not in accord with all the principles applied, or with the theory of the case in general, but an attempt to chart the case on retrial in detail would make the Court a mere advisory board, and is not consonant with our practice.
Counsel for the appellee argues that the defendants put themselves out of court by suggesting and agreeing to the submission of the third issue, which appellee contends bears the gravamen of damages. That might be true except for the fact that the issue with its answer must have judicial interpretation to apply to the facts of the case; and appellants contend that the interpretation was erroneous since the court made it to apply as a measure of future obligations of the defendants; and cover this with an exception.
Upon the facts of this case the objection was properly made and must be sustained. As applied the inflexible measure rests upon a highly speculative basis and is unfair to both litigants, but more so to the defendants, and the defendants did not waive any right to object to it. To define the needs of the plaintiff either in comfortable support, *371 or especially in medical attention for her during her remaining declining years would require a prescience that cannot be attributed to any witness, even if it could be included in a suit based upon breach of contract for nonperformance of the condition; and we repeat that we do not pass upon the propriety of that remedy.
However, respecting this third issue and the subject that it covers, the defendants objected to an amendment made by the court after verdict. For the circumstances attending it we refer to the above statement from the record.
The pertinent statute, G.S. § 1-163, is very liberal in allowing amendments, even after the verdict by the jury, "by conforming the pleading or proceeding to the fact proved." The amendment here is in substantial disagreement with the evidence as to the very subject of the inquiry, and the circumstances under which it was allowed do not bring it within the purview of the statute. Its allowance, therefore, must be held for error. It is not necessary to advert to other exceptions.
For the errors noted the defendants are entitled to a new trial. It is so ordered. Venire de novo.
Error. New trial.
