124 Va. 736 | Va. | 1919
Lead Opinion
delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of King and Queen county in a suit in which appellee was plaintiff and appellant defendant. The history of the casé is this:
On January 3, 1902, appellee, Mrs. M. L. Clintsman, who lived at Grand Fork, North Dakota, by her son, Leslie L., Clintsman (husband of appellant), who resided with his family in King and Queen county, negotiated the purchase of a farm containing 132% acres of land located in that county for $700. The deed conveying the land to appellee
By permission of the mother the land was occupied by the son and his wife and children from the time of the purchase until his death (the exact date of which does not appear, but sometime between the making of his will, July 2, 1903, and February 2, 1904, when the will was admitted to probate). Testator by his will bequeathed to his wife, “all of my possessions and things now in my possession and name * * * hoping if she outlives me, that she will look after my aged father and also if she can in any way assist my mother, that she will do so.” The will does not in terms undertake to devise the land, nor is it shown whether his name was substituted for that of his mother in the deed before or after he made his will. Leslie L. Clintsman’s father and mother had been divorced, and the father lived with the son on the land from the date of ihe purchase until the son’s ■ death. Afterwards, upon the .alleged ground that the father was not a suitable person for her .children to be associated with, appellant refused to permit him to remain in the home. And, a year or two after the death of her husband, she married a second time.
Mr. Pollard gave his deposition in the case about twelve years after the alteration of the deed, and says he thinks the son at that time produced a letter from his mother
Upon the case thus made the circuit court was of opinion that the substitution by the son of his name for that of appellee as grantee in the deed was a void act and invested him with no right or title to the land in controversy, and decreed accordingly. From that decree this appeal was allowed.
The same doctrine was announced by this court in Suttle v. R. F. & P. R. Co., 76 Va. 284, 286, as follows: “It has been long settled in this State that the disclaimer of a freehold can only be by deed or in a court of record. See the case of Bryan v. Hyre, 1 Rob. B. (40 Va.) 101 (39 Am. Dec. 246)—a conclusive authority on the subject.”
In the case of Newport News, etc., Co. v. Lake, 101 Va. 334, 343-344, 43 S. E. 566, 569, it is said: “Experience has shown that in controversies involving title to real estate,- it is far safer to rely on written muniments of title than ‘the slippery memory of man.’ Hence parol defeasances are not favored—a mere equitable estoppel constitutes no defense to an action of ejectment, (Haney v. Breeden, 100 Va. 781, 42 S. E. 916) ; and when such defense is set up on the equity side of the court, it must be distinctly charged and clearly proved.”
It is quite apparent that the claim of appellant to the land in controversy falls far short of the requirement of the equitable doctrine relied on, and cannot be maintained.
This contention is demonstrably without merit. The record shows that Leslie L. Clintsman died within less than a year after inserting his own name in place of his mother's as the grantee in the deed. Appellant, of course, had no cause of action until after the alteration had been made; and, therefore, the loss of his evidence by death a few months later can neither be imputed to lapse of time nor to the laches of appellee in bringing her suit. As we have seen, she lived in a distant State, and the bill charges that “complainant instructed her son, the said Leslie L. Clintsman, to have the tract of land conveyed to her, and she gave him $700.00 to pay for the same; and having implicit confidence in her son * * * believed that he had obeyed her instructions until several months ago * * * ” when she was reliably informed of the alteration of the deed. It is true that this allegation is controverted by the answer of appellant and by her testimony; but, however that may be, she suffered no loss of evidence from delay in bringing the suit.
The latest case on this subject is Wohlford v. Wohlford, 121 Va. 699.
We find no error in the decree of the circuit court, and it must be affirmed.
Affirmed.
Dissenting Opinion
dissenting:
This is a suit in equity brought by the appellee in October, 1915, to have herself declared to be the grantee in a deed which had been recorded over twelve years as a deed to her son as the grantee thereof, and under which the exclusive adverse possession of the real estate conveyed thereby had been taken by the son and held for such period before such suit by the son, the appellant, his devisee, claiming title to the same in fee and so occupying and using such real estate during the whole of such time; and to have such deed set aside and to have a’parol trust declared to exist under such deed in favor of the appellee over twelve years after the death of her son.
The appellee in her bill seeks to explain her long acquiescence in the status aforesaid by the allegation that she was the grantee named in said deed as it was originally executed and delivered to her son for her and that before it was recorded, the son, without the knowledge or consent of the appellee has his name substituted in the deed as grantee and then recorded it; and that the appellee had no knowledge that the son was named as grantee in the deed until a short time before the suit was instituted. The proof in the case is very clear that the real estate was purchased by the son and was paid for by the mother, the appellee, as a gift to her son. That the deed was dated
A few months thereafter the son died leaving a will, which was probated on February 2, 1904, which devised
The evidence makes it clear that this was the moving, cause of the suit and that but for that occurrence the appellee would have continued to have acquiesced in said status of said property.
Where the merits may be of the controversy over the right of said father to live on said real estate is a problem not involved in this suit, and it would serve no useful purpose to set forth here the details of that controversy. It is sufficient to say that the evidence discloses that prior to such controversy the appellee had acquiesced in the status quo ante aforesaid and would have continued to so acquiesce in future but for such controversy. The record shows that the latter is the real controversy between the parties to this suit, although the bill asserts a wholly different cause of action.
Now I have no difference with the majority opinion on the subject of the law therein laid down. If the deed in question was ever delivered, so as to have become an executed contract prior to the change of name of the grantee therein, then the legal title to the real estate thereby conveyed would have become vested in the grantee first named in the deed, if such grantee had been correctly named therein. 2 Minor on Real Property, sec. 1190; 2 Pollard’s Code 1904, sec. 2413; 2 Minor’s Inst. 738; Suttle v. R. F. & P. R. R. Co., 76 Va. 284, 286; Nelson v. Triplett, 81 Va. 237; Bryan v. Hyre, 40 Va. (1 Rob.) 101, 39 Am. Dec. 246. And, at law, the grantee could not be subsequently divested of the legal title except by matter of record or by deed or will. In equity indeed, the situation might be different. I agree with the majority opinion, however, in the view that in the instant ease the facts as disclosed by
1 think not, for the reasons presently to be more particularly pointed out.
But suppose the case were regarded as if the name of the appellee had been correctly written in the deed so that by the operation of the deed the appellee would have become vested with the legal title to the real estate upon its delivery; still, the question of fact would remain, was it ever delivered in that form ? If not, and if it remained undelivered when the alteration above named was made, it was still an executory contract, and the alteration aforesaid, if made with the consent of the appellee as well as of the grantor in the deed, was valid, and the deed took effect as a new execution of it as of the time of such alteration and delivery of the deed to the grantee then named therein, the son aforesaid. Cleaton v. Chambliss, 27 Va. (6 Rand.) 92; Speake v. United States, 9 Cranch 27, 37, 3 L. Ed. 645; 2 Rob. (New) Pr. p. 26. In such case the gift of the mother to the son of the real estate aforesaid would have become a gift completely executed, and hence as binding upon the mother, the appellee, as if it had been a purchase from her by the son for valuable consideration. Now since the son was acting for the mother, the appellee, as well as for himself throughout this transaction, it is manifest that
As.said in this court, speaking through Judge Staples in Harrison v. Gibson, 64 Va. (23 Gratt.) 212, and quoted with approval by this court, speaking through Judge Lewis, P., in Hatcher v. Hall, 77 Va. at p. 576: “If from the delay which has taken place, it is manifest * * * that the original transactions have become obscured by time and the loss of evidence and the death of parties, so as to render it difficult to do justice, the court will not relieve the plaintiff. If under the circumstances of the case, it is too late to ascertain the merits of the controversy, the court will not interfere, whatever may have been the original justice of the claim.” See also 1 Barton’s Chy. Pr., 90, and cases cited.
Further: No particular lapse of time is necessary to raise in equity the bar of laches. It rests upon the principle that nothing can call courts of equity into activity “but conscience, good faith and reasonable diligence; and where these are wanting, the court is passive and does nothing.” Idem, p. 91. It may be that if the appellee had instituted this suit promptly following the death of her son, which
She testified in her deposition, given on August 10, 1916, on this subject as follows:
“Ques. 4. State if you ever wrote Mr. R. N. Pollard a letter instructing him to erase your name in the deed and insert the name of Leslie L. Clintsman?
“A. I never did.
“Ques. 5. State if you ever sent a message to Mr. R. N. Pollard to erase your name and insert the name of Leslie L. Clintsman instead?
“A. I never did.”
In a letter to the appellant, however, dated November 22, 1915, appellee wrote on this subject as follows: “Yes,
I told or wrote Leslie that I didn’t care, but I never asked him if it had been done, there is no blame attached to Leslie or any one. * * *” For another thing, she is disingenious as to her real feeling of aggrievance against the appellant. She alleges one cause of action when in truth her actual oausp of action was a wholly different one. In short, she does not come into a court of equity clothed with that conscience and good faith which can alone appeal to it, and, moreover, her long delay since the death of the son has weakened the character of testimony on which alone appellant was left to rely in the premises after the death of her husband, the son of appellant aforesaid.
Note.—In the petition of Ida R. Brooks for a rehearing in the above case, our attention is called to a mistake in the printed record of the date of the probate of the will of Leslie L. Clintsman, deceased. The date as printed was February 2, 1904, instead of February 2, 1914, the correct date. From that circumstance the argument is again stressed that the right to maintain the suit was barred by laches. In the majority opinion, it is true, the question of laches was discussed from the standpoint- of the former date; yet, it by no means constitutes a bar to the suit when considered from the correct date. Even if it were conceded that a gift of the land was intended, the case would still be controlled by section 2413 of the Code, abolishing the enforcibility of parol gifts of estates of inheritance or freehold, or a term for more than five years, in land **although * * * followed by possession thereunder and
improvement of the land by the donee or those claiming under him.” The history and expressed purpose of the section shows a legislative policy to deny the right to enforce parol gifts of such estates.
This statute was recently considered and relief refused in a much stronger case for relief on the facts than those presented in this record Wohlford v. Wohlford, 121 Va. 699, 93 S. E. 629.
Rehearing denied.