89 W. Va. 520 | W. Va. | 1921
On this appeal from a decree adjudicating right in the plaintiffs to enforcement of an express trust in real estate and referring the cause to a commissioner for ascertainment of facts essential to final settlement and determination of the rights of the parties, it is contended that the demurrer to the bill should have been sustained on the ground of its alleged disclosure on its face, of fraud on the part of the plaintiffs, laches and lack of equity, and also that the trial court’s finding on the issue of fact, made by the pleadings, is contrary to the 'weight of the evidence.
No revelation of fraud is found in the allegations of the bill. They show that the plaintiffs employed the defendant, Yeager, as their agent to procure extensive and valuable tracts of timber and timber rights in Pocahontas County, upon his representation that he was a real estate agent and could procure said properties for them, at reasonable prices, and that it was agreed, among other things, that, in every case in which the owners of the lands optioned should refuse or fail to pay him a commission of five per cent, on the purchase price, they, the plaintiffs, should pay it. There is no occasion to inquire whether a secret arrangement or connivance between them and Yeager as agent of the vendors of the timber and lands, by which the transactions should be so conducted or manipulated as to make his principals pay the commissions, would preclude the relief sought by the bill, on the ground of fraud. It suffices to say the bill makes no admission of concealment, secrecy or obliquity of conduct on the part of the agent, participated in by the plaintiffs. The allegation relied upon as being an admission or making a dis
Nor is there any disclosure of facts or circumstances on the face of the bill, constituting laches. The properties in question are but two of more than thirty tracts with reference to which the parties dealt, and part of the timber on another, and the time intervening between the acquisition of the titles by Yeager and the institution of this suit, was less than four years. In that period, they transacted a large amount of business, and the lands in question were not fully paid for until a date within two years just preceding the institution of this suit. The plaintiff, James Flynn, Trustee, paid $100.00 on -it as late as April 4, 1916, and this suit was brought in August, 1917. The bill sets forth correspondence dated in September and December, 1915, containing admissions by Yeager, of Flynn’s interest in these two tracts of land. Laches runs against an express trust, but the rule does not apply with the same degree of rigidity as in the case of contracts, in which' there is no relation of trust or confidence. The illustrations of its application in cases of express trusts, found in Roush v. Griffith, 65 W. Va. 752, make it manifest that the elements essential thereto do not appear here.
In the evidence, the argument submitted on the theory of laches has less foundation than in the bill. Flynn testifies that, from the beginning of his transactions with Yeager, in 1913, down to June, 1917, there was no repudiation of the alleged trust by Yeager, and the correspondence between them corroborates his testimony. The Spice Run Lumber
The bill does not admit any delegation of discretionary powers by .the trustee, if, in the event of his having done so, Yeager could complain of it. He simply employed Yeager as his agent to make contracts or procure offers of sale, subject to approval by his employer.
As the bill alleges an express trust and the relation of principal and agent, making Yeager a trustee as to the tracts of land in their entireties, and not a resulting trust, it was not necessary to disclose the proportion the money paid by the
The two tracts of land contained, respectively, 234 acres and 135 acres, and were owned by the heirs of William Dean. Yeager claims to have commenced his negotiations for purchase thereof, in 1912, but he had accomplished nothing with reference to them, in June, 1913, when he seems to have succeeded in enlisting Flynn’s interest in the. timber of the section in which they are situated, and he included them in lists of prospective purchases, he rendered to Flynn. No money was paid on account of either tract earlier than July, 1913. On September 29, 1913, Flynn gave his cheek for $900.00 to J. A. Sydenstrieker, cashier of the First National Bank of Marlinton, to pay for four interests in one of the tracts and five in the other, and the money was so applied.' A check for $400.00 drawn September 30, 1913, by Yeager and payable to him out of Flynn’s account, was applied on the Dean land purchase money. Another for $318.00 drawn by Flynn, Trustee, payable to Yeager and dated, September 21, 1914, was so applied. One for $100.00 drawn by Flynn, payable to the cashier and dated, April 4, 1916, was applied on a purchase money note owned by Mrs. Nancy R. Dean. The purchase money notes were executed by Yeager and the conveyances made to him. Admitting these payments or advancements by Flynn, he claims they were loans made to him, with which to make payments on his own purchases. To sustain him in this contention, he produces two witnesses, Geo. M. Sutton and William Bruffey, who say they heard conversations between Flynn and Yeager, concerning the purchase of the Dean lands, in which the former encouraged the latter to buy them and told him that, if he should need money for the purpose, he knew where to get it, meaning that he, Flynn, would furnish it. Admitting the possibility of conversations between them, heard by Sutton and Bruffey, Flynn denies that they ever heard him agree or offer to advance money for any purchase by Yeager on his own behalf, and says he was unable to furnish more money than was needed for his own purposes. Three of the Deans say they understood from Yeager that he was buying the land for Flynn or the
Having carefully considered the evidence, facts and circumstances, we are of the opinion- that the findings of the trial court, as to the relation between the parties and the status of the land and timber in controversy, cannot be disturbed and ought not to be; wherefore the decree complained of will be affirmed.
Affirmed.