96 Va. 201 | Va. | 1898
delivered the opinion of the court.
The appellant, Mary E. Francis, has been thrice married. Her only children are two sons, William G. and J. M. Cline, of the first marriage. Under the will of her second husband, Henry Litz, who died about 1880, she acquired property to the amount of about $2,000, and in 1883 she married her present husband, T. L. Francis, and with her means she bought a farm in Washington county containing 102 acres (spoken of in this record as the Washington county land), and it was conveyed to her husband, T. L. Francis, in trust for her sole use and benefit. They moved upon this farm in 1884, and stocked and improved it, so that in 1891 it was generally regarded as worth $3,000. In the early part of 1891 some contentions arose between Mrs. Francis and her husband, growing, as she says, out of an idea that he had some interest in the property, and he was urging her to make a conveyance of it to him, which she declined to do because she intended that her two sons should have it. In March, 1891, she visited her son, William G. Cline, who resided in Tazewell county, and conferred with
On May 5, 1891, another deed was written, and was signed and acknowledged by Mrs. Francis, conveying this, land to W. G. Cline, but this deed was never recorded. This deed, and the one dated March 16th, signed by Mrs. Francis, named $3,000 as the consideration for the conveyance. After this last named deed was executed by Mrs. Francis, W. G. Cline went again to his mother’s home, in Washington county, advised his mother, as he admits, to separate from her husband, and obtained the consent of the husband to sign and acknowledge a deed with Mrs. Francis, conveying the Wash- , ington county land to him, and these parties at once went to the law office of Mr. Humes, who prepared a deed conveying the land from Francis in his own right, and as trustee for Mrs. Francis, and Mrs. Francis to W. G. Cline. This deed was duly executed on May 12, 1891, acknowledged and recorded on the 13th of May of the same year, but, as Humes died shortly thereafter, what transpired in his office between these parties is not known, except from their own statements. Mrs. Francis remained on the Washington county land until the fall of 1891, when she went to the home of her son, W. G. Cline, in Tazewell county, and remained for some months.
In April, 1892, by an agreement between her and W. G. Cline, the Washington county land was exchanged for ninety-two acres of land in Tazewell county, near W. G. Cline’s land, spoken of in this record as the “Spratt” land, or “ Gravatt creek ” land. The deed from C. C. Spratt and wife, conveying this ninety-two acres of land to W. G. Cline, bears date April
The prayer of her bill is that J. M. Cline bé required to produce and surrender to the court, or account for, the bond which he had hitherto refused to’ deliver to her, and that W. G. Cline be required to convej7 the Spratt land to her, &c„
To this bill W. G. and J. M. Cline filed their joint answer, in which they deny that W. G. Cline was to hold the Wash
On November 3, 1893, Mrs. Francis signed and acknowledged before J. W. Gillespie, a justice of the peace, a paper dated November 1, 1893, setting forth the pendency of her suit against W. G. and J. M. Cline; that the defendants had made full satisfaction to her of all demands made by her in the suit, and that therefore she thereby granted and released unto W. G. and J. M. Cline all the right, title, and interest in the land asserted by her in the suit, and also released them from all claims and demands, and acknowledged that she had received full consideration for making the release, and agreed to have her suit dismissed without any further proceedings.
At the same time, November 3, 1893, the following papers were executed and acknowledged by William G. and J. M. Cline before J. W. Gillespie, a justice of the peace in Tazewell county:
Exhibit UZ” with Oross-BilL
“ This deed, made and entered into on this November 3d, in the year 1893, between W. G. Cline, party of the first part, and Mrs. M. E. Francis, party of the second part, all of the county of Tazewell, and State of Yirginia, witnesseth, that for and in consideration of the love and respect that W. G. Cline, party of the first part, has for M. E. Francis, his mother, party of the second part, the said W. G. Cline, party of the first part, dos this day deeds and conveys one-half intrust of a certain tract, piece, or parcel of land situated in Tazewell county, and on the waters of Lyneon Share Branch, none as the Harlis plaee? and for further refereanees refers to deed from Mrs. Kroll to W. G. Cline; this deed is to take effect that in the event W. G. Cline, party of the first part, dies before M. E. Francis, party*209 of the second part, a further considerasion in this deed is that the said W. G. Cline reserves a right to sell or dispose of this land and reinvest its proceeds and said M. E. Erancis'isto hold and have the same intrust as she holds in this deed when reinvested in other lands; the party of the first part doth covinent to and with the party of the second part that they have the right to convey to there grantee, and that they warrant generally the title to the lands hereby conveyed.
Witness the following signature and seal, the year and date first above written.
W. G. CLINE, (Seal).55
Exhibit “ Y” with Cross-Bill.
“ This agreement and contract, made and entered into on this November 8th, in the year 1893, between W. G. Cline, James M. Cline and Mrs. M. E. Erancis, there mother, all of the county of Tazewell and State of Virginia. Witnesseth, that the said W. G. and J. M. Cline dos this day agree that in the event the said W. G. Cline deeds to the said J. M. Cline the land on which the said J. M. Cline now lives, the said J. M. Cline agrees and hinds himself to deed Mrs. M. E. Erancis one-half intrust in said land in the event the said J. M. Cline dies before she dos and if this land is sold she is to have the same right in any other land this money is reinvested in.
Witness our hands and seals this the year and date above written.
W. G. CLINE, (Seal.)
• J. M. CLINE, (Seal).”
At the April term, 1894, of the Circuit Court of Tazewell county a decree was made in the cause, setting forth that, it appearing from an agreement before a justice of the peace, filed with the papers in the cause, the parties had settled and adjusted the matters involved therein, it was therefore ordered that the case he dropped from the docket. This
At the August term of the court, Mrs. Francis was permitted to .file her cross-bill against W. G. Cline and J. M. Cline in this suit of Frank and als., out of which this appeal to this eourt arises.
The appellant repeats in her cross-bill the allegations of her original bill, and avers that when she separated from her husband, her two sons offered her a home and encouraged the separation; that the exchange for the “ Spratt” land in the vicinity of the residence of her son, W. G. Cline, had not long been made before he assumed the control of the land, declaring his ownership of it; and his family, at least, made it so disagreeable to complainant that she had to leave his house, and was compelled to go from “ pillar to post,” homeless, friendless, and alone, in feeble health and illy able to care and provide for herself; that she was in a most deplorable state of mind, and in this condition she was approached for a compromise ; that' her counsel had set another day to take depositions in her pending suit, and complainant came by her son’s (W. G. Cline) late in October, 1893, on the way to the office of her counsel, to see to some household effects she had at her son’s, when he began persistently to importune her for an adjustment of the suit; and as she was in no condition to resist anything, so importunate were her sons, it was finally agreed that there should be conveyed to complainant in fee-simple an undivided half of the Spratt land, and an undivided half of another tract that W. G. Cline had purchased, known as the Harless land, and hér sons were to give her food and clothing, and afford
The prayer of her cross-bill is that the transaction of November 3, 1893, be declared null and void; that she be remitted to her-rights to the Spratt land, conveyed by Spratt and wife to W. G. Cline, April 12, 1892, and that W. G. Cline be'compelled to convey the “ Spratt” land to complainant, &c.
W. G. and J. M. Cline made a joint answer to the cross-bill, referring to their answer to complainant’s original bill, and ask that it be treated as a part of their'answer then made, and after denying the fraud and unfair dealing alleged by complainant, say that they had at all times recognized their liability to support complainant, and were willing to execute to her any writing which would secure to her a support- out of their respective estates, provided she should outlive them, but were never willing, and never agreed to vest in her any present estate, for the reason that at times she was very much under the influence and control of her husband, &c., and that respondents believed that if they vested in complainant a present estate her husband would, in some way, succeed in getting control of it, and leave her to be supported by respondents. They then admit that they told their mother she could make her home with them as long as she lived, provided they outlived her, and that they would take the best care of her, and that if she should survive them, they would make provision for her during her life; that they did not execute any writing, and complainant did not request any, showing that she was to make her home with them, and they were to take care of her, for the reason that she well knew that respondents never had and never would deny her this right, and that whenever she could not live with her husband, their homes were open to her; but the writings, however, in regard to the Harless and Spratt lands were executed, so that she might have a sufficient amount for a support, provided she survived them.
W, G. Cline admits that he was asked by his mother to take charge of her business, and it is clearly proved that W. G. Cline was confided in to do for her what was necessary to settle the differences between herself and her husband, and to take the legal title to the Washington county land out of her husband, so that he would have no control over it, and have no pretext for claiming an interest in it, and that it was not at first contemplated that the land would be deeded to W. G„ Cline, nor that more was then intended than for the husband to convey the land directly to his wife, the appellant, though she may have frequently said that she iutended her sons should have her lands—a statement that was quite natural under the circumstances. To make sure, however, that the purpose of Ms mother, then in view, would be accomplished, W. G. Cline takes the deed from her husband to her of March 16, 1891, to A. J. May, a lawyer who had theretofore been her legal adviser, and told him that his mother was in some trouble with, her husband; that they had separated; that his mother owned a tract of land in Washington county; that her husband was claiming that he had an interest in it, and that his mother had made some arrangement with her husband to convey his alleged interest in the land to her. Whereupon May told him that while the conveyance of March 16, 1891, might be good in equity, he thought it would be better to get Mr. Francis and his (W. G. C.’s) mother to convey the land to him for an alleged valuable consideration. The sum of $3,000 was suggested as the consideration, and that he execute to his mother his note for that amount, with an understanding between them that he could lift his note at any time thereafter by reconveying the land to her, or by selling the land and reinvesting the proceeds in other land for her. This much, at least, W. G.
When asked to produce this paper, both W. G. and J. M. Cline say that, after the Washington county land was exchanged for the “ Spratt ” land, and the latter came into possession of the “ Spratt” land, the paper was turned over to W. G. Cline, and by him destroyed, although J. M. Cline had nothing then to show that he had an interest in the “ Spratt” land.- When asked if he claimed that he purchased the Washington county land from his mother, or that she gave it to him, W. G. Cline, after some hesitation, says: “ She gave it to me, but at the same time she admitted that she owed me the money I have stated in my examination-in-chief.”
He had before stated that his mother owed him $1,024 for money she got for cattle he had sold as far back as 1880, and, in an effort to refute the statements of his mother, that she turned the $3,000 note over to J. M. Cline as collateral security for her bond of $500 held by him, he (W. G. C.) had also stated that this $500 bond had been assigned to and was owned by him some time before the Washington county land was conveyed to him, whereby, according to his showing, his mother, on the 12th day of May, 1891, not only owed him $1,024 with interest from 1880, but this $500 bond given in 1884, making a total of principal due him $1,524, yet he then gives J. M. Cline a paper obligating himself to account to him for one half of what might be realized from the Washington county land rated at $3,000.
In addition to the denial of his mother that she owed her son, W. G. Cline, anything, and the production by her of three unpaid notes or bonds of his to her, one dated November 1, 1,888, for $85, for a wagon, horse, and cow, another dated November 1, 1893, for $45, and the other for $58, dated-: day of February, 1893, the statement he makes as to her in
. To explain why the appellant wanted to separate from her husband, make a deed for her land to W. G. Cline and live with her sons, W. G. Cline and his wife, and J. M. Cline, testify that she was not only jealous by reason of her husband’s immorality, but was afraid of him; and other witnesses tell the same story as to what the appellant had said about being afraid of her husband; that he bad maltreated her; though not a witness is adduced to testify to any ill-treatment by her husband', or that any of his nearest neighbors had ever heard.1 of the alleged misconduct on his part, • causing his wife to, become jealous. The statements of W. G. and J. M. Cline that appellant told them of cruelty to her on the part of her. husband; that he slept with a razor under his pillow, or carried a. pistol in his boot; had .tried to smother her once or twice with.a pillow or the bed clothes; had thrown a club at her* and caused her to fall over a fence, and sustain serious injury.;,
Much effort was made to show that the contract for the rental of the land by this witness was made with W. G. Cline, the contract not being produced, but if this were shown, it is hut natural that it was between witness and W. G. Cline, as the title of record was then in the latter’s name.
Another witness says that W. G. Cline told him “ that they were to pay an amount something like $1,000 to get a sham deed to keep Tom Francis and his stock off his mother’s land,” and that W. G. Cline always told witness that it was his mother’s land, and said so in his mother’s presence.
• Still another witness says that he was sent by Mrs. Spratt in the wiuter of 1891-2 to see W. G. Cline with reference to an exchange with him and his mother of the “ Spratt” land for the Washington county land, and W. G.. Cline, told witness that the Washington county land was his mother’s, though the deed was in him, and said the deed was so made to get rid of Mr. Francis.
The fact that W. G. Cline is a son of appellant does not, of itself,- establish a confidential relation between them, but it is a circumstance to be considered in determining whether or not such relations existed when the transactions giving rise to the
Notwithstanding the “ Spratt” land was conveyed to W. G. Cline, appellant was the real and beneficial owner of it. He had undertaken, as her agent, to first get a conveyance of the legal title.to the Washington county land from T. L. Francis, her husband and trustee; and second, to exchange this land for the “Spratt” land, and in doing these things for her, W. G. Cline, in both instances, took a conveyance of the legal title to the land to himself, and these facts being shown, they establish a trust in W. G-. Cline for the use and benefit of appellant, and it matters not whether it be denominated a resulting or an implied trust, as both are founded on the presumed intention of the parties, both arise by operation of law upon the transactions of the parties, and the authorities generally concur that both may be established by parol evidence. Borst v. Nalle, &c., 28 Gratt. 434; Bank of U. S. v. Carrington, 7 Leigh 566; Phelps v. Secly, 22 Gratt. 573; 1 Perry on Trusts, sec. 124.
Wherefore the same trust resting upon W. G. Cline with reference to the Washington county land when exchanged for the “ Spratt ” land, attached to the last named property when the exchange was made, and he held it in trust for the benefit of appellant.
It only remains to be determined whether or not the agreement to dismiss and the decree dismissing appellant’s first suit were procured by fraud.
It is earnestly urged by counsel for appellees that the decree of the court dismissing the suit, upon the exhibition of the
When a person assents that fiduciary relations be established between him and another, the law imposes upon him the duty of so dealing with the trust subject that his conduct and transactions will stand the test of the closest scrutiny. “Loyalty to his trust is the most important duty which the agent owes' to his principal. Reliance upon his integrity, fidelity, and ability is the main consideration in the selection of agents; .and so careful is the law in guarding this fiduciary relation that it will not allow an agent to act for himself and his principal; nor to act for two principals on opposite sides, in the ■same transaction. All such transactions are voidable, and may be repudiated by the principal, without showing that he was injured. In such cases the amount of consideration, the absence-.of undue advantage, and other like features are wholly immaterial. Nothing will defeat the principal’s right •of remedy, except his own confirmation, after full knowledge of all the facts. Actual injury is not the principle upon which the law holds such transactions voidable. The chief object of the principle is not to compel restitution where actual fraud has been committed, or unjust advantage gained; but it is to prevent the agent from putting himself in a position in which to be honest must be a strain on him; and to elevate him to a, position where he cannot be tempted to betray his principal.A confirmation must be a solemn and deliberate act. When the original transaction is infected with fraud, the confirmation of it is so inconsistent with justice and so likely to be accompanied with imposition, that the courts watch it with the
“If a party’s right to impeach the transaction be concealed from him, or a free disclosure be not made to him of every circumstance which it is- material for him to know, or if the act takes place-under pressure or constraint, or by the exercise of undue influence, or under the delusive opinion.that the original transaction is binding on him, or if it be merely a continuation of the original transaction,- the confirmation operates as nothing,- or, as stated in the latter part of sec. 964, 2 Pom. Eq., if the original undue influence still remains, or if the act is simply a continuation of the former transaction, or * * * * if he has not full knowledge of all the material facts, and of his own rights,, no act of confirmation, however formal, is effectual, the voidable nature of the transaction is unaltered.” Ferguson v. Gooch, 94 Va. 397; Kerr on F. & M., 296, 297, 298; Cumberland Coal Co. v. Sherman, 20 Md. 117; Hoge v. Hoge, 1 Watts 163, 26 Amer. Decs. 52; Michoud v. Girod, 4 How. 503; and Broadus v. Broadus, 3 Call. 546.
In the light of the foregoing well recognized rules of law let us examine the evidence as to how the agreement of compromise and the decree dismissing appellant’s first suit was procured. It will be observed, in the first place, that, in the agreement or compromise, appellant is made to say, “ and.does-hereby acknowledge that she has received a full consideration for making this release.” By concession she got nothing in the way of a consideration for the release of her rights and the dismissal of her suit, except what is provided for her in the papers “ Y ” and “ Z,” copied above. The reservations in “ Z,” signed by W. G-. Cline, are such as to work no change of title in him to the property referred to. He says in the paper that it is made in consideration of love and respect for his mother, but claims in his answer that it is in consideration of the dismissal of the suit. He pretends to convey to his mother “ one half intrust ” in a certain piece of land which he owned, known
“T,” signed by both of the Clines, is to the effect only that they will convey to appellant “one half intrust” in the “ Spratt” land, conditioned upon two events: First, if W. G. Cline should deed it to J. M. Cline; and second, if J. M. Cline dies before his mother. J. M. Cline at that time, if he ever did, held no written obligation of W. G. Cline for a conveyance of the land to him, and it is conceded that J. M. Cline was a bankrupt, as W. G. Cline had said that J. M. Cline could own no property in his own name on account of debts against him.
These papers, upon their face, when read in the light of the fact shown that it was strenuously urged upon appellant by the Clines when executed, that there was no reason for them to be recorded, if this was not, in fact, imposed as a condition upon their delivery to her,' amount to nothing more than a sham and a delusion.
■ The appellant tells how the agreement of compromise was obtained, as follows: “I was at Graham, and got notice that W. G. Cline would take depositions on the 28th of October. I came up a few days before, and went to Gordon’s (W. G. C.) house to see after some bedding and other things I had there. I walked to town on the day appointed, but all the depositions were not taken; the balance were postponed until the next week. I was fixing to go to town, and Gordon told me that we had better settle this matter ourselves, that it was a disgrace, and that he was ashamed of it. He' says: Ma I will do right, if you will. I think the trade we first talked about would be best for you. I will give you a half interest in the Harless place, and a half interest in the Spratt place. I would rather do that, for Jim won’t want to move. I will pay the taxes and be at all expense, and pay you $50 a year rent for your half of
J. W. Gillespie, who wrote “ Y ” and “ Z,” and before whom they and the dismissal agreement were signed and acknowledged November 3, 1893, makes the statement in his deposition that the day these papers were prepared, W. G. Cline and his mother came to his house together; that he was out in a pasture near the house; that "W. G. Cline came out to where he was, and while there and before they reached the house, and in the absence of appellant, W. G. Cline told him what kind of papers he wanted prepared; that, without any consultation after he reached the house, he prepared them; that he never read either of these papers to appellant; that his recollection was that when he announced that the papers were ready, that he remarked, “ I had better read them, if I could read my own handwrite, and Gord. (W. G. C.) said he thought he could read it; about that time somebody hollored to me from the fence, and I went out of the house ” ; that they were never read to her in his presence; she did not have her glasses,
Thus it will he seen that the justice, the only person present, totally disinterested, corroborates appellant as to the manner in which these papers were prepared and executed, and as to the deception practiced upon her by W. G. Cline, in securing her signature to the agreement to dismiss her pending suit, and, in fact, in every material statement made by appellant as to what occurred on that occasion.
A witness who had busied himself in getting up testimony fpr the Clines in this case, made a persistent effort to get “ ’Squire Gillespie” to say that the papers were read to appellant and she understood them, and this witness and another testify that Gillespie said in their presence that appellant heard the papers read and understood them, but Gillespie adheres steadfastly to his statement above given.
The record discloses that W. G. Cline was continually'approaching witnesses who testified in favor of appellant while they were in attendance before the commissioner. In- one breath he and his witnesses would have us believe that his mother left his house to go to West Virginia to obtain a divorce from her husband, and in the next that she was entirely satisfied with the papers prepared November 8, 1898, and the provision thereby made for her, but, being under the influence and control of her husband, was induced by him to bring this suit. The defence he makes is an admission that his mother got nothing for her Washington county laud in the shape of a valuable consideration. It is drawn out of both him and J. M. Cline that the papers “ Y ” and “ Z ” do not make such provision for their mother as was intended, or that she expected, when she agreed to dismiss her suit, but say that they are bound to take care of her, and would do so anyhow. The production of these papers in the course of the depositions, confessedly excited both of the Clines, if they did not produce consternation, as they doubtless had relied on their being lost or destroyed, and their production may have given rise to
The defence rests wholly on W. G. Cline’s original claim to the Washington county land, though doubtless it occurred to him along with the afterthought to claim this land that the further he was removed from this transaction the securer his title was, and hence, after the exchange for the Spratt land, he and his brother are emboldened to deny their mother’s right to it, although she released none of her rights by this exchange. Denial is made that he executed the $3,000 note to his mother, when the evidence is almost overwhelming, showing facts and circumstances contradicting him. It is admitted that papers were destroyed after the exchange for the “ Spratt ” land that might have thrown light on his transactions, and perhaps this gave rise to the significant remark made by W. Gr. Cline, according to his own witness, when notice was served on J. M. Cline to give his mother possession of the Gravitt land or pay her rent: “ I have been driving cut nails, but now I am driving wire nails, and clinching them on both sides.”
Courts of equity delight to follow property which has been the subject of a trust into whatsoever guilty hand it may go. There are no innocent purchasers involved in this litigation, and fraud in the procurement of the agreement from appellant to dismiss her former suit having been proved, we are of opinion that the decree appealed from must be reversed, and this court will' enter such decree as the court below should have entered, requiring W. G. Cline to further execute and deliver to appellant a good and sufficient deed conveying to her in fee-simple, as her sole and separate estate, the 92 acres of land, known in this record as the “ Spratt ” land, and he and J. M. Cline to pay the costs of this suit; and the cause will be remanded that the Circuit Court may make such further decree therein as may become necessary to carry into effect the decree of this court, or, if need be, to appoint a commissioner of the court for the purpose, to convey the “ Spratt ” land to appellant.
Reversed.