| W. Va. | Mar 22, 1884
The first enquiry is: What is the effect and operation of
Shortly alter the cancellation of the contract of sale with Parker the sisters of Cain executed a title-bond agreeing to convey the tract of one hundred and thirty acres of land to Rezin Cain. The surviving sister testifies, that there was no consideration for this bond. “We did not,” she says, “want any mouey of him but just assigned our interest back to him, that he might have his land.” This is believed to be true, not simply because she testifies to it, but also because her evidence as to the re-conveyance is abundantly proven independently of her statement and because it abundantly appears from the facts and circumstances of the case that they really received no consideration. The person who drew this bond states, that there was some consideration mentioned in the bond; but the receipt of the consideration was also mentioned in the bond. In this respect it was just like the deed made by Rezin Cain to liis sisters. A consideration was named in it but its receipt in full was acknowledged. The contents of the title-bond were proven by the person who wrote it to be that the sisters were to convey to Rezin Cain this one hundred and thirty acres of land. He also states that it was left with him and lost or destroyed with other papers of his during the war. After this title-bond was given, Rezin Cain had possession of the land till the war broke out, when he went south.
In this state of facts what was the operation and effect of this deed of 1854, whereby Rezin Cain conveyed this tract of land to his sisters upon.a parol trust for his own use? In Troll v. Carter, 15 W. Va. 578, this Court decided: “If
But after they executed to him a bond, whereby they agreed to convey this tract of land to him, could he in a court of equity have enforced the bond? If this written obligation was signed by them, when the deed conveying to them the legal title to the land was executed by him, it is obvious, that he could enforce in a court of equity the conveyance of the land to him in accordance with their written obligation; for the only reason why he could not do it in the absence of this written obligation, is that he would have to resort to parol evidence to prove their agreement, which he could not do on the principle that if the parties reduce their contract to writing, as is done by the deed, it cannot be explained or contradicted by parol proof, but there would be no violation of this rule, if there was a written obligation by them to convey this tract of land to him; and it would seem to be equally obvious, if, as in the casebefore us, the grantees signed subsequently a written obligation to r'e-convey the land to him. As no fraud could be practiced by him by the introduction of false proof, I can see no reason why in such a case a court of equity would not compel them to carry out the original understanding, after it was reduced to writing and signed by them. This is all of course based on the sup
The next inquiry then is: Was the deed of this tract of land to his sisters made by the plaintiff to delay, hinder or defraud his creditors or for any other vicious object ? There is no evidence in the cause to show why' he in 1854 conveyed the legal title of this tract of land to his sisters. lie is asked no question on this subject, and in his deposition says not a word about it. His surviving sister, JDorinda Cain, is the only other living party to this transaction, and she on cross-examination simply' say's in her answer to the following question by the counsel of defendant Cox: “IIow much money did you originally pay him for the land?” “We never paid him anything; and when he wished the land back, we assigned our interest over to him,” which, as I understand it means that Rezin Cain’s sisters paid him nothing for this land which he deeded to them in 1854 and he paid them nothing, when they executed in 1860 the title-bond binding them to convey the land to him. And this, for the reasons I have stated, I believe to be strictly- true. There is not a particle of proof that he had in 1854 or at any time before or since any creditors to delay, or that in 1860 or at any time before or since his sisters had any creditors to delay, hinder or defraud by the execution of the title-bond. Hor is there any' allegation in the pleadings, that this deed of 1854 or this title-bond was made to delay, hinder or defraud creditors or for any vicious object. Hot. a word is said in the bill or answer about the consideration or whether there was any' consideration for the deed. All he says in the bill about the consideration of the title-bond is that “ he purchased the land of his sisters and took this title-bond; that he had sold said land to G. W. Parker for his sisters and paid for said land, and after the execution of said title-bond to him by his sisters, he paid Parker his money back.” This is a
In his deposition Rezin Cain does not state that he paid any consideration for the execution of this title-bond to him ’ by his sisters. So that there is scarcely anything in the pleadings to indicate, why this deed of 1854 -was executed, or why the title-bond of 1860 was given. Dorinda Cain in her answer does state, that she and her sister did receive the benefit of the amount paid to Parker by Rezjn Cain. But how is not stated; and in another part of her deposition she states, that they received no benefit of the amount paid to Parker. Though there is this descrepancy between the pleadings and the proof, and though the deed on its face does say that the consideration for the land was three hundred and fifty dollars, and though the title-bond does say, that it was made for a valuable consideration, which had been paid, still, it does seem to me, it would be an unwarrantable inference for a court to hold on this evidence only, that the deed of 1854 or the title-bond of 1860 was made to delay, hinder or defraud creditors or for any vicious object, as there is no proof that there were any creditors to delay, hinder or defr’aud, and no other vicious object is any way shown or even suggested by pleadings or proof. "We may conceive of many honest reasons why a man should convey his land to another to hold for his use; and in the absence of all proof
For these reasons I think that Rezin Cain had a right to have specifically enforced against his sisters the performance of the obligation imposed on them by this title-bond by asking a court of equity to compel them to convey to him this tract of land. This title-bond cannot be properly regarded as voluntarily executed by his sisters without any consideration. They held the legal title of this tract of land; but they held it in trust for Rezin Cain. It is true that as he had nothing but parol proof to show this trust, and he had executed the deed conveying the legal title to them, he could not, till they executed this title-bond, have compelled a performance of this trust; not because it was not both legal and proper for them to perform it, but only because he had no legal proof of it. The title-bond then should be regarded legally not as a sale of the land to him nor as a voluntary agreement on their part to convey it, but as a furnishing by them to him of proof in the legal form of the existence of' this trust. And this legal proof being furnished to him he liad thereafteiva right to enforce in a court of equity the performance of this trust by a re-conveyance of the land to him. But they- having the legal title, it is obvious, that; if they sold it and conveyed it to a bona fide purchaser for a valuable consideration, and lie paid the purchase-money and got a deed for this tract of land from them, before he had any notice, that Rezin Cain had the equitable .title, such purchaser would get a perfect title to this tract of land, and that in'his hands it would be discharged of any equity in favor of Rezin Cain. Such purchaser could not of course bo by Rezin Cain enforced in a court of equity to convey this tract of land to him.
Wm. F. Cox claims, that he is such bona fide purchaser without any notice of Rezin Cain’s claiming to have an equitable title. This claim is distinctly asserted in his answer. Is it true or not? The evidence in favor of this claim seems to me to.he exceedingly weak, when we consider what is re
• This being the nature of the notice which must be proven in order to deprive a purchaser from occupying the position of a bona fide purchaser without notice, the evidence of the defendant, Cox, relied upon by his counsel as proving that he had no notice of the equitable claim of lie-in Cain', instead of proving this proves the contrary. The witnesses of the defendant, Cox, oven if we rejected the evidence of the plaintiff’s witnesses would prove that he had notice of the claim of Rezin Cain, and that he, Cox, was not a bona fide purchaser of this tract of the land without notice. In his deposition the defendant states, that “the only notice he ever had before purchasing was from one of his relations, who told him he had heard that Reziu Cain had some kind of an agree-
This is his whole statement on the subject. And it does seem to me it proves he had notice of the equitable claim of Rezin Cain. It is true according to his statement it was but constructive uotice. But we have seen that constructive notice is as binding on him as actual notice. Having the notice, which lio confesses, it was obviously sufficient to put him upon 'enquiry. It did in fact, he says, put him on en-quiry. But did he prosecute this inquiry in a manner, which was dictated by common prudence ? Did he prosecute it with ordinary diligence? It seems tome' according to his own statement he did not. Were not the sisters, of whom he enquired, parties, who had a direct interest in not disclosing to him the equity of their brother in this land? He was proposing to purchase this land of them and to pay to them the purchase-money. Could he as a man of common prudence expect them to tell him that they had no right to sell the laud as their brother had an equitable title to it? Certainly not. But did he according to his own statement prosecute this enquiry of the sisters with ordinary diligence? Clearly not. He was content with a general statement from them according to his own account of the matter that this agreement had been cancelled or destroyed. Would not any man of common prudence intending to act in good faith have enquired, whether this agreement had been can-celled and destroyed with the consent of the brother Rezin Cain? Cox knew Cain was in the Confederate States; and this of itself would with any prudent man desiring to do right at once have raised the suspicion that this agreement had been cancelled and destroyed without his consent or knowledge; and any man of common prudence acting bona fide would certainly have enquired when and how this agreement had been cancelled and destroyed — whether with or without the consent of Rezin Cain, or accidentally. But it
Cox attempts to fortify his statement by a witness Snod-grass, who, he states, was present at this interview with the sisters. ¡Snodgrass says: “Mr. Cox having' asked them whether they had a clear title to this land, they said there was no obligation on the land either verbal or writtenhe did not remember hearing them tell Cox that the obligation between them and Rezin Cain had been destroyed or canceled.” This is far from a corroboration of Cox’s statement of what occurred in this interview. But if it were just as Snodgrass states, it would not vary the ease; for, as Cox' expressly admits, he had heard that Rezin Cain had an obligation of his sisters to convey this tract of land to him. His want of common prudence was still more marked, if Snod-grass’s statement is correct; for having heard this he made no special enquiry if it were true, but contented himself with a general enquiry as to whether the title was good, an enquiry, to which, as we have seen, he had no right to expect a correct answer, as it was made by parties interested to represent their title as good. Obviously according to the statement of Snodgrass he did not prosecute the enquiry, which he was bound to make, with common prudence or
This is all the testimony Cox relics on to prove, that lie had no notice of the equitable title of Rezin Cain, when lie purchased, and ,it seems to me it proves the reverse. .But the testimony of the plaintiff’s witnesses shows, that Cox, before he purchased this 'tract of land’ of these sis- . ters, knew- positively • that Rezin Cain had an equitable title to this tract of land, and that his purchase was mala fide. This .is proven by Dorinda Cain the surviving sister, one of the parties of whom Cox purchased. The sisters, she testifies, told him that they had executed a bond to their brother to convey this land to him; but as it was likely he would never come back he having gone into the army of the Confederate States, and even if he did, his rights would be disregarded, as he was a rebel, they were willing to sell the land to the defendant, Cox, if he chose to purchase it with this knowledge of Cain’s equitable title. He chose to do so with his eyes open relying on the expectation that Rezin Cain would make no disturbance about it, or, if he did, then on the covenant of warrant}' of the sisters, as far as it would go. This statement is very much corroborated by the other testimony and facts in the cause.
George W. Parker, who at one time held and occupied this land under a purchase from Rezin Cain, testifies, that in a.conversation with the defendant, Cox, he, Cox, said: “Before he purchased the land, he made enquiry of these sisters in regard to their title to this laud and asked them, if they had convoyed the land to any one, or if they had any papers out binding them to make a title to any one for said land, and they said, they had given Rezin Cain a title-bond for said land, but the papers were lost or destroyed.” This, I have no doubt, is the real truth, and Cox in his testimony has changed what these sisters said to him, that this title-bond was lost or destroyed, into that it was “ cancelled and destroyed.” Cox knew perfectly well, when he purchased, that Rezin Gain had an equitable title to this tract of land, but as the paper showing it was lost or destroyed, and Rezin Cain was in the Confederate array, he deliberately took the risk of purchasing this tract of huid from those, who had the legal title, well
Rezin Cain also proves admissions of Cox, that .he had, when he purchased, notice of his equitable claims. The fact, that Rezin Cain and Parker as á purchaser from him had possession of this tract of land for years, would itself' go far to prove that Cox had notice, that Cain had some claim to it. .But as he or those claiming under him had not been in possession for several years, when Cox made his purchase this would not by itself be conclusive evidence of notice. See Campbell v. Fetterman's Heirs, 20 W. Va. 398" court="W. Va." date_filed="1882-10-28" href="https://app.midpage.ai/document/campbell-v-fettermans-heirs-6592563?utm_source=webapp" opinion_id="6592563">20 W. Va. 398. My conclusion therefore is, that ¥m. P. Cox unquestionably had constructive, if not actual, notice that the equitable title to this land was in Rezin Cain when he purchased it of his sisters; and that in making this purchase he acted in bad faith.
It is well settled that one, who takes a deed .with notice that the equitable title is in another by a fair contract .of sale or in any other manner, must stand in the shoes of his vendor and may be compelled to do whatever would be obligatory on the vendor, if the legal title had remained in him,
.But it is insisted that he is barred of his relief by the statute of limitations. The statute of limitations has no application in such a case; but if it had, it is obvious, that it would not be applied in this particular case, because there is no doubt that the plaintiff could not take the oath prescribed by section 27 chapter 106 of Code of West Va. usually known as the test-oath; and chapter 28 of Acts of 1872-73 provides that in computing the time, within which any civil suit can be brought by a person, who could not take this oath, the period from February 28,1865, to February 6, 1873, shall be excluded. Excluding this time this suit was brought within less than three years and three months after the cause of action accrued. It could not have been brought by virtue of this test-oath-act more than three years and three months before it was brought.
It is claimed that the plaintiff Reziu Cain by his conduct and declarations abandoned, his claim, while he was thus barred from bringing suit. But the acts and declarations relied on as abandonment ot his claim are only proven by the defendant Cox, and they are denied by the plaintiff Cain, who in his depositions says: “In the summer of 1867 I went to Wm. ,F. Cox’s house and told him, that that land belonged to me, but I was not able to do anything at that time, but perhaps there would be a time when I could,” being under disability on account of suitors’ test-oath. This is denied by Cox, and may or may not be true. But be this as it may, there is no proof in the case, which can be relied upon, that shows any abandonment or surrender of the plaintiff’s claim to this land. Even if he set up no claim to the land by word or act, while this test-oath-act was in force, no inference to his prejudice could be thence drawn. It was idle for him by word or act to be setting up a claim to the land, while the law of the laud would not let him enforce his claim by any suit. It might be perhaps regarded as worse than useless. It may well be considered, that such conduct on his part would have been actually foolish, as it could do no possible good and might stir up ill-will against him in a
The circuit court ought not to have entered the decree of October 20, 1876, as the matters referred to the commissioner are matters to be determined upon the depositions in the cause and are all of such a nature, that the report of a commissioner could be of no aid to the court, who could not decide them properly without reading himself and carefully considering the depositions. The exception to this report bj' the plaintiff was well taken dud should have been sustained.
I have said that the title-bond executed by Rezin Caiu’s sisters to him was executed in good faith and the specific performance of it should he enforced; but I failed to refer to a question propounded to Dol’inda Cain on cross-examination and her answer to it, which may perhaps have had much influence with the commissioner and with the court below in reaching a contrary conclusion. The question referred to the giving of this title-bond by the sisters to I-tezin Cain and was: “It was not a bona fide sale, but a mere trade for the time being.” The answer was: “It was a mere trade for the time being and not a bona fide sale.” I confess that the question is entirely unintelligible to me, for there is not a particle of evidence or pretence that there was any sort of trade of laud between Rezin Cain and his sisters either for the time being or permanently. Not comprehending the question the witness by her answer simply assented to what was stated in the question. But that she did imt mean to say that there was any trade of laud, or that the title-bond was not made bona fide abundantly appears'in the balance of her deposition.- 1 suppose she did not understand what was meant by a bona fide sale. I suppose she must have meant by saying it was not a bona fide sale, that it was not a sale, in the ordinary sense of the word. And her evidence shows, that it was not. It was, as she afterwards states, a mere agreement to convey to him land, which belonged to him, hut the legal title of which was in them. This she says was not a bona fide sale, that is, -was not a common sale. But the character of the transaction whether bona fide or not is to be judged of not by her ideas of what is bona fide, but upon the actual facts proven in the case.
As the circuit court ought to have decreed-, that a conveyance should be made of this tract of land in controversy to Rezin Cain, it is obvious, that he is entitled to the rents and profits of the. land from the time the defendant Wm. F. Cox took possession of it, which was, I presume, February 1, 1865, the date'of the deed to him. Cain has a right to recover all the rents and profits of the land for all the time it has been wrongfully held by Cox, though this time greatly exceeded five years, because during all that time prior to the institution of this suit except about three years and three months the suitor’s test-oath was in force, and the plaintiff had, while it was in force, no right to recover these rents and profits. But in ascertaining these rents and profits Cox should be allowed to offset against them any taxes he has paid on the land and the value of any permanent improvements he may have put upon it.
Reversed. Remanded.