41 W. Va. 422 | W. Va. | 1895
On appeal from decrees entered by the Circuit Court of Monongalia county, the one on the 22d day of June, the
Amos Gapen, of Monongalia county, the lather, died intestate on the 5th day of February, 1892, leaving as his heirs at law his two sons, the defendant, Stephen Gapen, and the plaintiff, Joseph Gapen. Some time in the year 1864, Joseph Gapen, being then nineteen years old, enlisted as a soldier in the Federal army as a substitute for one who had been drafted in the state of Pennsylvania, and served until the end of the war, receiving and using his pay as a soldier during his term of enlistment. For entering the army as such substitute he received the sum of nine hundred dollars, of which sum eight hundred and eighty live dollars came into the bauds of his father to take care of for him during his absence in the army.
On the 4th day of march, 1867, the father, Amos Gapen, bought of William S. Miller the undivided half of a tract of land of fifty seven and three-fourths acres on the east side of the Mouongahela river in Monongalia county at the price of seven hundred dollars, and Miller and wife, by deed dated the 13th day of March, 1867, conveyed the land to Amos Gapen. Five hundred dollars of the purchase money was paid in hand. A note for two hundred dollars, the residue, was executed, and a lien was retained on the land to secure its payment. It was paid about the 4th day of March, 1868. By deed dated the 15th of November, 1870, P. L. Kramer and wife sold and conveyed to plaintiff, Joseph Gapen, the other undivided half of this fifty seven acre tract of land.
On the 27th day of December, 1879, Amos Gapen executed and delivered to his son Joseph the following instrument, which was proved by the two subscribing witnesses, and admitted to record:
“Whereas, my son Joseph Gapen deposited with me, to take care of for him, about the year 1864, lie being in the Union army, and under age, the sum of eight hundred and eighty live dollars, with seven hundred dollars of the same I purchased of William L. Muller the undivided half of a tract of land in Monongalia county, West Virginia, on which I now reside, which land I consider his, and I de
“Attest: T. M. Baker. James Houston.
“We being present, and saw Mr. Amos Gapen sign the above writing, and heard him acknowledge the same us being his wish and desire and will, and we consider him capable of transacting any ordinary business of life. Thos. M. Baker, James Houston.”
After the death of his father, Joseph Gapen, in September, 1892, brought his suit in equity against his brother, Stephen Gapen, alleging that since the death of their father his brother, Stephen, claims an undivided half by descent of the half conveyed to their father, Amos Gapen, by Miller and wife; that he is living upon the laud, and asserting title thereto. Plaintiff alleged that his father, by virtue of having paid for the land with his money, and by virtue of the instrument given him, held the legal title to the undivided half for the use and benefit of plaintiff, and prayed that his brother, Stephen, might be compelled by proper deed of release to convey the same to him, or that a decree be given him for the money, to be enforced by a sale of the land, and for general relief.
Defendant, Stephen Gapen, filed his auswer, wherein he denied that the nine hundred dollars was plaintiff’s money, received and held in trust for him by their father, but alleged that it was paid to him as the consideration of giving his consent that his minor son should go as a substitute; that he bought of Miller the land in question, paid for it with his own money, and had the same conveyed to himself some two years after plaintiff’s return home from the army; that, if there was any understanding that the eight hundred and eighty five dollars was to be paid to plaintiff, it has been paid; and that the recovery thereof is barred by the statute of limitations. And he further says that when the instrument of the 27th December, 1879, was executed by his father, Amos Gapen, he was non compos mentis, could not transact any business, and that such writing was invalid.
The next question discussed is, who was entitled, under the circumstances of this case, to what is called the “substitute money,” the father or the minor sou ? This money was paid to the minor by Williams for taking his place as a soldier in the United States army, and assuming the risk of life and limb and loss of health and hardships and privations incident to his service as a soldier. The father consented to his minor sou’s entering into the military service of the United States government. These risks were all the son’s, not the father’s; and we think the money he thus received, as well as his regular pay as a soldier, should be regarded as belonging to the sou, and not to the father; and this viewr seems to have the sanction of the courts as far as I have been able to examine the cases. See Baker v. Baker (1868) 41 Vt. 55; Banks v. Conant (1867) 14 Allen, 497; Mears v. Bickford (1867) 55 Me. 528; Magee v. Magee, 65 Ill. 255; Cadwell v. Sherman, 45 Ill. 348; Schouler, Dom. Rel. (5th Ed.) § 252a. A different view is taken in Bundy v. Dodson, 28 Ind. 295, and in Ginn v. Ginn (1872) 38 Ind. 526. But in the case of Halliday v. Miller (1887) 29 W. Va. 424 (1 S. E. 821) the cases are reviewed and discussed, and the conclusion reached that the bounty as well as the pay as a soldier belong to the minor, and not to the father; citing Meats v. Bickford,, 55 Me. 525, with approval. Enlistment in the army or navy suspends the parent’s right of control, and all wages, bounties, and prize money belong to the minor. 17 Am. & Eng. Enc. Law, 382; citing Taylor v. Bank, 97 Mass. 345, and other cases.
The circuit court held that the minor son was entitled to this money, and that the father received it in trust for him,
But the said Joseph Gapen is not entitled to interest on any part of said money received by his father, Amos Ga-pen, except as hereinafter stated, because he lived upon and received a part of the rents and profits of the said land, and had made his home with his father until his father’s death.
Is this claim barred by the limitation of five years? It is not simply a case of money had and received of or belonging to Joseph Gapen, but this suit is based on the trust and confidence arising out of the fiduciary relation assumed by the father in regard to this fund, and there is no other limitation than that which may be applied to stale and antiquated claims; and this was not only an express trust, but appears to have been recognized as a continuing one so far and for the time during which Amos Gapen could be said to be of sound mind. Has the claim been fully paid and satisfied ? I think it appears from the record in this case that all the credits which Amos Gapen’s estate seems to be en
No explanation is given or anywhere appears why the commissioner was not permitted to report on these and other items of credit, if any. That should certainly be done before there is any final decree. In Pecks v. Chambers, 8 W. Va. 210; Wiley v. Mahood, 10 W. Va. 206; Rose v. Brown, 11 W. Va. 123—it is held to be error to decree a sale without at the same time giving the defendant a daj- in which to redeem; and merely to postpone the day of sale is not giving such day.
The case will have to go hack, in order that the cause may be referred to a commissioner to take the proper accounts showing what, if anything, is due to plaintiff from the estate of Amos Gapen on account of the substitute money in the bill and proceedings mentioned which came to the hands of the decedent.
Reversed and remanded.
While I agree with Judge Holt in holding the demand not barred, it is not on the ground that it is a trust. The trusts not within the statute of limitations are direct or express trusts, cognizable only in equity. Implied, resulting, and constructive trusts come under the statute. Bart. Ch. Brae. 110; 1 Rob. Prac. (New.) 458; 2 Wood, Lim. § 200; Sheppards v. Turpin, 3 Gratt. 373; Speidel v. Henrici 120 U. S. 377 (7 Sup. Ct. 610). This ease is
