132 S.E. 876 | W. Va. | 1926
The circuit court of Roane county sustained the demurrer to the bill filed in this cause, and the questions arising on the sufficiency of said bill are now here on certificate.
The bill, in substance, sets up the following: That Cyrus Boggs, up to within a few days prior to his death, was possessed in fee simple of three small lots in the City of Spencer; that he and plaintiff had lived together as husband and wife for thirty-five years; that, at the time of his death, he and plaintiff, both very old people, were living on one of said lots; that he became diseased shortly before his death; that, realizing the end to be near, he decided to convey said lots to plaintiff, whom he recognized as having been a good, dutiful and faithful wife, that she might be protected from want in her declining years; that, realizing that he could not convey the legal title of said lots directly to plaintiff, he and plaintiff, each having great confidence in their daughter, Alice Yates, and believing her to be honorable and faithful to any agreement made by her, called said daughter from her home in another city, to the bedside of said Cyrus Boggs; that said Boggs explained to his said daughter his desire to provide for the plaintiff, as aforesaid; that he could not convey legal title direct to plaintiff, but, if said daughter would promise to reconvey said property to plaintiff, without any consideration other than love and affection, that he would convey the property to her; that said daughter so agreed, and a deed was made to her, dated October 22, 1923, purporting a consideration, although no actual consideration ever passed; that shortly thereafter, to-wit, November, 1923, the said Boggs died; that the said daughter, with her husband, immediately moved into the property theretofore occupied by said Boggs and the plaintiff, and ousted her aged mother (plaintiff), and caused *409 her to seek shelter elsewhere; that said daughter and her husband (both being made parties defendant to the bill) have refused to reconvey the property to said plaintiff as per the oral agreement of said daughter to do so. The prayer then follows, that the defendants be required to reconvey by an apt and proper deed the title of said lots to the plaintiff.
The defendants contend that the alleged oral trust set up in the bill cannot be enforced because it is violative of (1) the statute of frauds, and (2) the rule against the admission of parol evidence to contradict, vary or add to, written contracts.
At common law no particular form of creation or declaration of a trust or use was required. It could be by deed, or will, or writing not under seal, or mere word of mouth. Use and trust were simply averred and proved like any other facts, and writing was not required. Currence v. Ward,
As to the second ground of demurrer, it is a general rule of evidence that parol testimony cannot be admitted to vary or add to a written contract, and especially a contract or deed conveying lands. There are some cases which are sometimes called exceptions to this general rule, but which are really not exceptions; they being cases to which the rule is not properly *410
applicable. Thus, a deed absolute on its face may be shown by parol evidence to have been given as security for a loan. The real office of the parol evidence in such a case is not to vary the contract in writing, but to establish the existence of a collateral fact which when established controls the deed. So as here, if a party obtained a deed without any consideration, upon a parol assurance by the grantee that she would make a particular disposition of it, a court of equity will enforce the specific performance of such an agreement, even though the deed recites that it was made for a valuable consideration, if in point of fact no consideration was really paid by the grantee. Onson v. Cown,
The ruling of the circuit court is therefore reversed and the demurrer to the bill overruled.
Ruling reversed.
