92 W. Va. 391 | W. Va. | 1922
This suit involves the right of plaintiff, Mary A. Bennett, to participate in the net proceeds of land sold by defendant, T. C. Bennett, under an agreement made in the year 1887,
Plaintiff was the owner by inheritance of a tract of 128 acres of land lying in Sardis district of Harrison county, on which she and her husband Ai P. Bennett had resided for many years. They contracted debts in the purchase of other land, and secured payment by three deeds of trust to Cunningham, trustee, between 1882 and 1885, for sums aggregating about $700.00, on the 128 acres. In 1887 Cunningham, trustee, advertised the land, and Ai Bennett, being confined to his home by rheumatism, plaintiff entered into negotiations with defendant, a brother of her husband, and who conducted a country store at Brown about 5 miles distant from the land, for the purpose of paying the indebtedness and protecting her interest in her land. She says it was understood and agreed between them that defendant would purchase the land, pay what indebtedness was against it, including expenses of sale, and when he resold the land the profits would be divided evenly between them, and that plaintiff could remain on the land and keep it up. There was some negotiation of this character, as defendant then wrote a letter to his brother which was carried by plaintiff to her husband and which is as follows:
March 11, 1887.
“Ai, glad to hear that you are getting better. The way that I am going to do in regard to the land is just this, if I buy it at all I will buy it at public sale and will let you stay on and give yon, a good chance. That is I will rent you the house, garden, corn ground and pasture for one' horse and one cow, and let you have one-half of the apples at a price that we can agree upon. In other words I will give you a good show. And then when I sell it we will divide the profits even.
That would certainly give you a good chance, and now if you are -not entirely satisfied with the above proposition why let me know, for I do not want the land. Read the above carefully, for if I buy the land' I never want a hard thought.
"jiToixcs
T. C. BENNETT.”
“This is to certify that we have this day received (in hand paid) from T. O. Bennett One Hundred and Seventy-five Dollars, in full of all claims, dues or accounts, and further that we hereby acknowledge the above amount to be full liquidation for all claims or interest that we might have heretofore had in any real estate claimed- or owned by said T. C. Bennett, and we hereby acknowledge that the above T. O. Bennett owes us nothing in any way and that we have no interest or title to any land owned by said T. C. Bennett; and further, that we agree and bind ourselves, to give peaceable and full possession of the house that we now reside in, on or before March 1, 1891, as witness the following signatures and seals.
AI P. BENNETT, (Seal) MARY A. BENNETT, (Seal)
This October 19, 1890.
Witnesses:
J. C. Bennett,
H. E. Bennett.”
Plaintiff denied, having signed the paper, or that she had any knowledge whatever of its existence. A heated controversy followed in which defendant advised plaintiff she had better be careful about insisting on a settlement, or she would get herself into trouble. Two witnesses were present. De
We think the circumstances surrounding the parties and their, acts, about which there is not very material conflict, as shown by the evidence, considered in connection with defendant’s proposition as contained in his letter of March 1887, accepted by plaintiff and her husband and afterwards acted upon by defendant, made a contract in writing between plaintiff and defendant and created an express trust wherein defendant was trustee and plaintiff was beneficiary. Wilson v. Kennedy, 63 W. Va. 1; Currence v. Ward, 43 W. Va. 367; Ruckman v. Cox. 63 W. Va. 74; Newman v. Newman, 60 W. Va. 371; Nease v. Capehart, 8 W. Va. 95. But whether the contract is in writing or by parol an express trust may be created, and it may be proven by parol. Currence v. Ward, 43 W. Va. 367. “A trust, as the basis of an equitable title to real estate, may be proved by clear and satisfactory parol evidence, and in such case, the statute of frauds does not apply.” Hamilton v. McKinney, 52 W. Va. 317. The learned judge of the lower court in deciding this point said: “Whether it was a trust in real estate or a trust in person
It is contended that plaintiff’s claim is barred by laches; that she permitted defendant to remain in possession of the property without claim or complaint from 1887 until 1911, and for ■ twenty-eight years after the execution of the release of 1890 until she began her suit in 1918. It must be remembered that it is not shown that she had any knowledge of the ‘ ‘ release ’ ’ until 1911, except by inference. Neither the statute of limitations nor laches will apply to an express trust until there is a denial or repudiation of the trust, of which the beneficiary has notice; after that time the statute begins to run and the doctrine of laches will apply. Ruckman v. Cox, 63 W. Va. 74; Newman v. Newman, 60 W. Va. 371; Speidel v. Henrici, 120 U. S. 227; Capen v. Capen, 41 W. Va. 422; Wood on Limitations, sec, 200. Trusts are peculiarly the subject of equity jurisdiction; and direct or express trusts, so long as they continue as between trustee and the beneficiary, are not subject to the statute of limitations. Partridge v. Wells, 30 N. J. Eq. 176; the doctrine being that the possession of the trustee is the possession of the cestui que trust; subject to qualification that when there is a denial of the trust plain and unequivocal the statute of limitations runs against the beneficiary from the time the repudiation is brought to his knowledge. Kane v. Bloodgood, 7 Johns. Chy. 90 (N. Y.), opinion by Chancellor Kent. There was no substantial reason why any action should have been taken by plaintiff or any demand made for an accounting prior to the sale of the oil and gas in 1900. Nothing had been done with
It is asserted by defendant’s counsel that if any trust ever
We have been greatly aided by able briefs of counsel on rehearing, upon the question of exemption of a married woman from the statute of limitations, under section 16 of chapter 104 of the Code, which provides: •
“If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant, married woman, or insane, the same (except in the case of the married woman, as provided in section three of this chapter) may be brought within the like number of years after his becoming of full age, unmarried, or sane, that is allowed to a person having no such impediment, to bring the same after the right accrues, or after such acknowledgment as aforesaid, except that it shall in no case be brought after twenty years from the time when the right accrues.”
Under section three, of that chapter, where a married woman has the right to make entry on or sue for land which is her sole and separate' property, her coverture does not stop the running of the time of limitation. Here is an express provision that the ten years limitation shall operate against her right to make entry on or sue for land which is her sole and separate property; but is there such express provision in respect to her personal actions in section sixteen above quoted, which is designed to exempt persons under disability from the operation thereof! What is the meaning and effect of the parenthetical expression, “except in the case of the married woman, as provided in section three of this chapter,” as therein contained! In this connection we have considered chapter 66 of the Code, and especially section 15 thereof, which provides that a married woman may sue
Upon consideration of our own statute of limitations, and the so-called “married woman’s act,” we would not have much difficulty in coming to the conclusion that section 16 of chapter 104 exempted married women from the operation of that statute as to actions regarding her sole and separate personal property, as that section includes her in a class which is exempted, namely, 1 ‘ infants and insane persons, ’ ’ and provides that suits may be brought after the infant shall become of lawful age, the married woman unmarried, and the insane person sane, except that in no ease shall such suit be brought after 20 years from the time when the right accrues, if it was not for the parenthetical clause therein contained, which says, “except in the case of a married woman, as provided in section three of this chapter.1'’ By reference to the Code of Yirginia of 1849, chap. 149. it will be seen that a married woman could bring an action for entry on or to recover land within 10 years after the time her disability ceased to exist; and that she could institute personal action, or scire facias, or file a bill to repeal a grant, after her dis-coverture, but not later than 20 years from the time when the right accrued. It appears that it was not until 1868 that the right of a married woman to make entry on or bring action to recover land was limited to 10 years by the parenthetical clause which says, “except in the case of a married woman where such land is her sole and separate property;” and she was not limited as to personal actions until after diseoverture;" (except the 20 year period from the time when the right accrued) until the adoption of the Code of 1868, which contains the parenthetical clause above referred to in section 16. What meaning or effect, then, shall we give to these parenthetical clauses which first appeared in the Code of 1868 ? It is clear that she is limited to 10 years, although she is under coverture, where her suit is for entry upon or recovery of land which is her sole and separate property. The meaning of the parenthetical clause, contained in, sec.
Under the well known rule of statutory construction we must give this parenthetical clause some meaning and effect. What actions are saved to her from limitation, and conversely, what actions subject thereto? Under section three the actions there saved are those which do not affect her separate and sole property in land. Her sole and separate property as then defined, consisted of all real and personal property theretofore conveyed directly to her or to a trustee for her use, by any person other than her Misband. Sec. I chap. 66, Code 1868. Also the real and personal property which she had at the time of her marriage remained her separate property. Sec. 2 chap. 66, Code 1868. By section three of the same chapter she might take by inheritance, gift, grant or devise from any person other than her husband, and hold the same to her sole and separate use. So it appears that all property of a married woman, notably, that inherited by her prior to 1868, and that which had been conveyed to her directly by her husband, was not declared to be her separate and sole property. The common law as to all of her property was not entirely abrogated by the married woman’s act; and suits as to such property, not made sole and separate, were not barred by section three of the statute of limitations, except as to the 20 year period, until the prescribed time after discoverture. Under section three both in the Code of 1868 and in our present Code, suits concerning her sole and separate property in land are subject to the limitation, in the former 15 years, in the latter 10 years. Section 16, under consideration, treats of personal actions, and by means of the parenthetical clause therein, namely, “except in the case of a married woman, as provided in section three of this chapter, ” makes the same exception as to her personal estate. It is an “ exception upon an exception. ’ ’ It was intended to place personal actions concerning her sole and separate per
Having concluded that coverture of plaintiff does not prevent the running of the statute, and that it began to run from the date of the repudiation of the express trust, and denial of liability by defendant in 1911, what period of limitation applies? It is insisted that the five year limit should be invoked under Somers v. Bennett, 68 W. Va. 157, which was a suit by one co-tenant against another co-tenant of land held by them for sale and profit, for an accounting of the proceeds and profits, and the five year period was applied from the time plaintiff had right to demand payment. In the instant case-we have a contract in writing signed by defendant, in which he agreed to ‘ ‘ divide the profits even ’ ’ when the land is sold, and we think sec. 6 of chapter 104 applies, which says that every action to recover money founded on a contract in writing, signed by the party to be charged thereby, or by his agent, but not under seal, shall be brought within ten years after the right to bring the same shall have accrued. The promise to pay is in writing. Brown v. Grove, 80 Fed. 564.
Error in the decree is asserted because the court ascertained one half of the money derived from the three sales and took therefrom the money originally paid by defendant at the trustee’s sale, $867.06, the advancements or gifts made to Ai by defendant, $1,375.00, and rendered judgment for the remainder, with interest thereon from January 9, 1911, without referring the cause to a commissioner for an accounting; and also because interest was'not calculated and allowed defendant on the sums paid: The items of debit and credit
Appellee makes cross assignment of error because the lower court allowed defendant credit for two items, one of $500.00 and the other of $700.00, which were acknowledged to have been received by plaintiff, (paid to her husband), but which defendant stated to be gifts, and not as part payment on any obligation, legal or moral. However, plaintiff in the 26th paragraph of her bill says she is willing to credit these sums on the amount found to be due her, if it be equitable so to do; and in view of the facts, we do not feel disposed to disturb the decree of the chancellor in that regard. He found it equitable so to do. Nor will we make a neat and careful calculation of the interest on the various payments, to see if the court made inconsequential error.
Appellant makes the point that plaintiff’s claim is void and unenforceable under the rule against perpetuities, in that under the agreement, plaintiff’s claim or interest, at its inception is inchoate, executory and contingent upon the happening of conditions precedent, any one or all of which might or might not come to pass, namely, (1) the purchase of the land at the trastee’s sale, (2) the subsequent resale by defendant at a profit. No time limit upon resale was agreed upon by the parties, but the time and terms of sale were left wholly to defendant. It is contended that under the agreement plaintiff’s inchoate interest might not have vested
We affirm the decree.
Affirmed.