Brown v. Brown

77 Va. 619 | Va. | 1883

Fauntleroy, J.,

delivered the opinion of the court:

The appellant, James Brown, filed his bill in the circuit court of Washington county at the September rules, 1881, against Abram Brown, William M. G-ray and Francis Preston, alleging that, in the year 1863, James Brown, Sr., sold a tract of land in said county to William M. Gray, and conveyed the same to him with an express reservation of an iron ore bank and the mineral on said land, and the right of access to it. That, in 1866, the said James Brown, Sr., sold another adjoining tract (upon which there was a furnace for the manufacture of iron), and the said iron ore bank and mineral reservation to the complainant, the ¡said James Brown, and Abram Brown jointly, and put them in possession of the said property under and in pursuance of the said contract. In 1869 the said James Brown, Sr., executed a deed to the said James Brown and Abram Brown for the said “ Furnace tract,” but through oversight failed and omitted to convey in said deed the said ore bank and mineral reservation and right of way. That the said James Brown and Abram Brown held and exercised ownership and possession of, in, and to said property under their said contract of purchase, for a valuable consideration, from the time of their contract with their father down until after the death of their father, the said James Brown, Sr., in the spring of the year 1880; the said Abram Brown never denying, but always admitting, by word and act, that they, the said James Brown and Abram, were the joint owners of the ore bank and mineral reservation, as well as of the Furnace tract. That after the death of the said James Brown, Sr., the said Ahram Brown claimed that the said James Brown had no interest in the said iron ore hank and mineral reservation, and that he had obtained a deed for them to himself alone from ■ their father, the said James Brown, Sr., in 1872. That he, the said James Brown, had no notice of the said deed to the said Abram Brown, or that he claimed more than a joint half interest in said iron ore bank and mineral interest until the spring of 1880, and after the death of their father, the said James Brown, Sr. That the said Abram Brown claimed to have sold the said iron ore bank and mineral interest to the said William M. Gray, and he, Gray, claimed to have made a conditional sale of the same to Francis Preston, but the hill of complaint charged that the transactions between William M. Gray and Francis Preston were incomplete and without consideration, and that they both had full notice and knowledge of the said James Brown’s joint ownership and interest in the said premises.

The bill of complaint charged that the said Ahram Brown held the legal title of the said ore bank and mineral interest for the benefit of himself and the said James Brown jointly and equally, and prayed for relief—specific and general; and the bill charged fraud in the procurement of the deed by the said Abram Brown to himself alone, and in the concealment by him of his pretended purchase and possession of a deed for the said property until after the death of their said father, James Brown, Sr.

The said defendants demurred to the hill, pleaded the statute of fraud, and filed their answer denying the allegations of the bill, and claimed that they were, each and all, purchasers for value without notice. They took no proof, but relied upon their said answer. The complainant, James Brown, proved that James Brown, Sr., sold the iron ore hank and mineral reservation interest to himself and the said Abram Brown jointly, at the same time, and by the same contract, that he' sold to them the said Furnace tract of land; that they paid therefor a valuable consideration, as agreed upon; that they went into.possession of and held and exercised ownership over said property under their said'contract; that Abram Brown admitted over and over again, through a long series of years, that the said property was owned jointly by himself and the said James Brown; that they had twice conditionally sold it as joint property; that the said Abram Brown undertook to get a deed for it, jointly, from their said father, and went for that avowed purpose to Wise county, where their father, the said James Brown, Sr., resided; and that all the denials of the said answer were untrue. That James Brown, Sr., always, after said contract, stated and repeated that the said property belonged to his said two sons—Abram Brown and James Brown ; that it was a mere oversight that it was not conveyed by the deed conveying the Furnace tract, and that both vendor and vendees so understood and declared; that the complainant always claimed his interest in and to the said property, and exercised ownership over it, and never knew or suspected that Abram Brown claimed to own the whole, or had obtained a deed therefor until 1880, after their said father’s death, when Abram Brown, for the.first time, denied the right and joint interest of the said James Brown ; that the said Wm. M. Gray had full notice and knowledge of the right and interest of the said James Brown before he (said Gray) bought the saidpfoperty, for which he had neither paid the purchase money nor received a deed, and that the said Francis Preston had only purchased conditionally, and had paid no purchase money and received no conveyance.

' Upon these facts, all disclosed by the transcript of the record in the case, and most abundantly proved by numerous witnesses, as well as by the acts and admissions of the appellees themselves, we think the circuit court of Washington county erred in refusing the relief prayed for in the bill, and in dismissing the said bill with costs by the said decree of February 15th, 1883.

This decree of the court below deprived the appellant, James Brown, of valuable property, which, in law and equity, belonged to him, and shields and consecrates the gross fraud perpetrated by Abram Brown upon both his aged father and confiding brother, in obtaining the legal title to said property, and attempting, both by concealment and false suggestion, to hold it exclusively for his own benefit, when he knew and admitted that it belonged jointly and equally to his brother, James Brown, the appellant. The circuit court of Washington county should have granted the relief prayed for, and thus have prevented the consummation of the fraud.

The statute of frauds was enacted for the purpose of preventing fraud, and it cannot be pleaded successfully in a case like this. One of the two joint purchasers or vendees cannot take a conveyance to himself for the property, and thereby defraud his' co-purchaser by the plea that there was no contract in writing between them and their vendor, and that the contract was therefore void; and even if the statute could apply in this case, the record shows such part performance of the verbal contract as to take it out of the operation of the statute.

We are of opinion that the decree of the circuit court of Washington county, complained of by the appellant, is erroneous, and must be reversed and annulled with costs; and that the appellee, Abram Brown, holds the legal title to the said iron ore bank and mineral reservation for the benefit of himself and the said James Brown jointly, and that the said James Brown is entitled to one-half interest in the said property.

The decree is as follows:

This day came again the parties, by their counsel, and the court having maturely considered the transcript of the record of the decree and proceedings aforesaid, and the argument of counsel, is of opinion, for reasons stated in writing and filed with the record, that the appellant, James Brown, is entitled to one-half interest in the iron ore bank and mineral reservation, and the right of way thereto, conveyed by James Brown, Senior, to the appellee, Abram Brown—it being the same land and right of way and mineral reservation in the bill and proceedings mentioned; and that the said decree of the circuit court of Washington county is erroneous. It is therefore decreed and ordered that the said decree be reversed and annulled; and that the appellant, James Brown, recover against the appellees his costs by him expended in the prosecution of his appeal here.

And this court now proceeding to enter such decree as the said circuit court of Washington county ought to have entered, doth adjudge, order and decree, that the appellees, Abram Brown and William M. Gray, do execute a good and sufficient deed to the said James Brown, conveying to him, the said James Brown, the legal title to an undivided moiety of the said iron ore bank, and mineral reservation and right of way thereto as set forth in the deed from said James Brown, senior, for the same. And it is adjudged, ordered and decreed, that the said appellant, James Brown, do recover of the said Abram Brown, the appellee, his costs by him expended in the said circuit court of Washington county; and leave is given to the said James Brown to apply for such other and further relief in the premises to the said circuit court of Washington county, as may be necessary; which is ordered to be certified to the said circuit court.

Decree reversed.