64 W. Va. 19 | W. Va. | 1908
By a deed dated 7th May, 1872, D. P. Workman conveyed to his son, Allen Workman, a tract of one hundred acres of land in Boone county. Thereafter Allen Workman and his
Here may be the proper place to state, as to that alleged partition, that the evidence is highly conflicting. It is utterly denied by Allen Workman in his answer and his own evidence. There is not the shadow of evidence to show that any survey was made, and metes and bounds fixed by magnetic calls for course and distance. Not a tree marked. Not a stake driven. Not a monument settled. Taken at best it was just a general declaration that this child should have a certain piece, another, another piece. Mere talk or silent understanding. The bill asks the court to confirm that partition. It dares notask an original partition, regardless of the alleged partition, because that would confessedly lose the benefit of the alleged partition, and throw the parties for their right on the naked promise to hold in trust for the grantor, and then there would be no right for partition. Suppose the court would confirm that alleged partition. Plow could it define the lots and separate the one from the other to be held in severalty when there is not a single corner or line shown in pleadings or evidence? The court could not execute such a partition if it would. Mathews v. Jarrett, 20 W. Va. 415. It would have to make an original partition according to quantity and quality. Of course, the mere act of D. P. Workman, after his conveyance in making a partition would not bind his grantee. We here need no authority. But it is
Suppose Allen Workman knew of and assented to such partition in ever so distinct a way. What then ? We held in Cunningham v. Cunningham, 46 W. Va. 1, that, “Declarations of a vendee, after entry and valuable improvements, that he would throw up his article and hold as tenant to his vendor, his possession continuing as before, areinsuffi-cient to divest his interest. ” “One cannot lose vested title to land by oral admission that it is the property of another.” High v. Pancake, 42 W. Va. 607. “Mere oral declarations to destroy title are inadmissible, because parol disclaimers cannot affect a vested title in the face of the statute of frauds.” Suttle v. Railroad, 76 Va. 284. That case says that where
There is another legal reason why the plaintiffs cannot succeed. The deed from D. P. Workman to Allen Workman states a consideration of $168 for the little mountain tract. The deed is prima facie evidence of that fact. Probably that is the truth from the fact that $168 is stated instead of $170 or $180 or $200 or other even sum. Anyhow, that recital is prima facie evidence against the grantor and his children and the plaintiffs, because they are privies in estate. There is the disinterested evidence of Damron that he was buying some timber on the land and wanted to know of D. P. Workman to whom it belonged, and Workman told him that he could buy of Allen Workman, and declared that Allen Workman had paid for the land and said that it was Allen’s land. Now, the law is that if one obtains a deed for valuablé consideration, whilst a trust for another may be set up, such trust must be either created in writing or must be proved in writing, and such writing must show the existence and terms of the trust. McCandless v. Warner, 26 W. Va. 754; Hogg’s Eq. Princ. 749. Notice that where one acquires land to hold in trust for another, paying no valuable consideration, I mean some third party, not the grantor, the trust may be enforced without such writing. But where the grantee pays valuable consideration, to set up a trust, you must have such writing creating it or admitting it. The cases are different. As above stated it is proven that Allen Workman paid $168 for the land. And if it were not proven I note that the bill does not allege that the conveyance was without consideration and voluntary. Now since the law is that where a conveyance is made on valuable consideration a trust must be either declared or manifested by a writing, to get out from under that rule and show a trust capable of enforcement the bill must allege a want of valuable consideration. It does not. It is silent as to this. This alone defeats the plaintiffs. Some evidence tends to prove, though insufficiently, that the secret trust was that Allen Workman should hold in trust for his father for life, with remainder to the children. Grant this. What the legal result? The conveyance being for valuable consideration such trust would be void, in the absence of a writing. But why this remark,
A strong circumstance in this case against the pretention of a trust is the fact thatD. P. Workman lived from 1872 to 1904, and all the children still in the country, without having this trust executed. Lying dormant so many years in a matter so, important to them. Thirty-two years of sleep before the old man went to his final sleep. This suit was not brought until 1906. Thirty-four years after the date of the deed. Is it necessary to quote from Faulkner v. Grantham., 55 W. Va. 317, that to sustain an express trust by oral testimony against an absolute deed, after a lapse of over thirty years the evidence must be clear, full and explicit, and not open to grave doubts, contradictions and circumstances of suspicion, as this case certainly is?
Decree affirmed.
Affirmed.