43 W. Va. 778 | W. Va. | 1897
Lead Opinion
On the 4th day of February, 1869, Burton Despard and wife conveyed by deed, to John W. Bailey, George Bailey, and E. ¡S. Shackelford, a tract of one hundred and fifty-seven and one-half acres of land in Taylor County, in consideration of the sum of two thousand three hundred and sixty-two dollars, to be paid thereafter as provided in said deed, the payments being evidenced by the several bonds of the purchasers, bearing date January 11, 1869, and the vendor’s lien retained in said deed to secure the said purchase money. The purchasers, together with Thornsbury Bailey, the father of John and George Bailey, and father-in-law of said Shackelford, took possession of the land, built a house and made other improvements on it. The father with his family, including said John and George, who were then unmarried, and a younger brother, ITarvey A. Bailey, occupied the premises as a home. After some time, John and George married, each building a house on the said land, and accupying the same, while the father and mother, with Harvey and a younger sister, continued to occupy the first house built. On the 6th of March, 1888, the purchasers, John W. Bailey, George Bailey, and E. S. Shackelford, and their wives, sold and conveyed, by deed of that date, to Harvey A. Bailey, the younger brother, fifty and one-half acres, a part of said tract of land, in consideration -of seven hundred and sixty-six dollars and sixty-seven cents, retaining in said deed their vendor’s lien for said purchase money, and also providing in said deed the following clause: “But, to secure said land, a dowry is hereby retained for Thornsbury Bailey and Catherine Bailey, his wife, during their natural lives.” This deed was duly executed but not recorded until the 8th day of February, 1892.
The plaintiff, in support of his bill, filed the depositions of E. S. Shackelford and John Lucas, the justice who took the acknowledgment of the deed of March 6,1883, to Harvey A. Bailey. Shackelford testifies that John and George Bailey and himself went together to make the purchase from Despard, and made the contract for it; that, in the spring following the purchase, the boys were all at home with the old gentleman, and they all went onto the land together; they built one house at first, and all lived in it together until John and George got married, when they built separate homes; that Thornsbury has ever since continued to reside there; that his understanding is that they made a division of the land, and held and used it in separate pieces, and in answer to the question, “Why did you join in the deed to Harvey A. Bailey for the part of the land that Thornsbury Bailey built his house on and occupied?” Shackelford says : “There were several reasons. I intended Thornsbury to have a home while he lived, for him and the old lady. They were very poor. I asked old Daddy Bailey who I should make that deed to, and he said, ‘Make it to Harvey.’ I asked him how he wanted it made. He said to have his maintenance reserved in the deed. I said to him, if that was done, they would sell it for his debts, and he would be thrown out of a home. He then said, ‘Let the deed just be made to Harvey, — a clear deed.’
“A plaintiff who alleges fraud must clearly and distinctly prove the fraud alleged in his bill. The onus pro-bancli is on him, and if the fraud is not strictly and clearly proved, as it is alleged, relief cannot be granted, although the party against whom relief is sought may not have been perfectly clear in his dealings.” Harden v. Wagner, 22 W. Va. 356, 366; Kerr, Fraud & M. 382; Gibson v. Randolph, 2 Munf. 310. “Whenever the courts permit parol evidence to be received to establish a trust, they always require such evidence to be clear and unquestionable, to produce such result.” Troll v. Carter, 15 W. Va. 567, Syl. 7; Coleman v. Parran, (decided at this term) 28 S. E. 769.
Appellant charges in his bill “that said Ephraim S. Shack-elford held said land as a trustee for said Thornsbury Bailey, and not otherwise, it being the land of Thornsbury Bailey from the date of the purchase from Despard,” and says in his brief:” “The bill was taken for confessed as to Shack-elford, who purchased the third of the land for Thorns-bury, and who conveyed the legal title to Harvey.” Why defendant Shackelford failed to answer the bill is not clear and appellant makes him his witness, and shows by him
Dissenting Opinion
(dissenting).
I agree, on second thought, contrary to first inclination, that Armstrong cannot subject the fee. He has not clearly established an express trust; that is, an agreement, at the time the two young Baileys and Shackelford purchased of Despard, that Thornsbury Bailey was to have the Shackel-ford interest, or any other interest. He is not shown to have any vested interest in the purchase. Any subsequent oral agreement would be invalid under the statute of frauds. And there can be no resulting trust: (1) Because it is not shown that Thornsbury Bailey paid any purchase money, except, fifty dollars, and that was not. his money, and there was no understanding that it was paid with intent to give him an interest; and (2) a resulting trust cannot arise ex post facto, but must arise at the time of the original transaction. If Thornsbury Bailey had an interest, Armstrong’s judgment being docketed before the deed to Harvey Bailey was recorded, that deed would be void as to Armstrong’s judgment; but a creditor is not entitled to more than his debtor had, and Thornsbury Bailey had no interest for the judgment, to attach to. As Thornsbury Bailey had no interest, the agreement to keep the deed from record to avoid letting his creditors know of the reservation of a life estate would not. make the deed void. They had a right to conceal the fact.
But I do not. see how we can belli subjecting the life estate of Thornsbury Bailey to the judgment. The deed warrants the land to Harvey Bailey and heirs forever, and
Affirmed.