115 Va. 540 | Va. | 1913
delivered the opinion of the court.
On June 5, 1909, Sallie E. Woods and Samuel P. Woods, her husband, entered into a contract with W. G. Goodloe, whereby they undertook to sell him a tract of land in Nelson county, containing one hundred and sixty-five acres, at the price of $1,150. Of this sum the purchaser paid twenty-five dollars in cash, undertook to have a proper deed of conveyance prepared, took possession of the land, and afterwards transferred the benefits of the contract to one E. L. Mathews, and delivered to him the possession. Neither Goodloe nor Mathews ever paid anything on the purchase except the $25.00 mentioned, and on the 18th of August, 1910, more than a year after the contract was made, Goodloe wrote to Mrs. Woods, the vendor, that there was trouble about the title, and that nothing would be paid on account of the purchase until the title was cleared up.
To the following April rules (1911) the appellees filed the bill in this case, in which they set out the facts mentioned, and allege, among other things, that they were advised that the land in question belonged equally to the appellee, Sallie E. Woods, and her two children; that if this was true the parties were powerless to convey the interest of the children, and that it would be inequitable to allow the appellants to retain the land and refuse to pay any part of the purchase money. The prayer of the bill was that the contract might be specifically executed, if the purchasers were willing or could be required to take such title as Woods and wife could give, or that the contract be rescinded and complainants restored to the possession of the land, and that the defendants be required to account for a fair and reasonable rent during the time it had been in their possession.
P’ercy L. Woods, one of the children of Sallie E. Woods, (an adnlt) answered the bill, asserting his rights in the land, insisting that he has done nothing to impair such rights, and objecting to any action that would interfere with his ownership, or any right he may have in the land. Buth Woods, the other of the two children, is an infant and answered by guardian ad litem, asking that her rights be protected.
The defendants, Goodloe and Mathews file separate answers in which each of them denies that the two children of Sallie E. Woods have any interest in the land, and insist that Samuel E. Woods and wife should be required to specifically execute their contract by making a clear title thereto.
The circuit court held that the children of Sallie E. Woods were jointly interested with her in the land; that the title was not such as the purchasers should be required to take, and allowed them to elect whether they would take such title as their vendors could give, and if not that the parties should be restored to their former rights. The purchasers declining to accept such title as they were held to be entitled to under their contract, the court directed that the possession of the land should be restored to Sallie E. Woods and her two children, and referred the cause to a commissioner to take an account of rents, improvements, etc. From this decree the defendants, Goodloe and Mathews, have taken this appeal.
Whether or not the decree complained of is right depends upon the correctness of its conclusion that the children of Sallie E. Woods have a vested interest jointly with her in the land in controversy. The record shows that in 1869
By contract dated June 5,1886, Samuel F. Woods agreed to convey his entire interest in the estate of James Woods, deceased, to Sallie E. Canady upon the consummation of her marriage with him. One week after this contract was made, by deed dated June 12,1886, Samuel F. Woods, after reciting the contract and the consummation of the marriage, in consideration thereof conveyed to I. A. Paul, trustee, the tract of land in question, upon trust for the use and benefit of his wife, Sallie E. Woods, and all children hereafter to be born of her by the grantor, providing that in the event of her death without issue the property should revert to the grantor.
The will of James Woods prescribes no method by which the power is to be exercised, nor is there anything to indicate that the testator intended that any particular method should be adopted, unless the language, “to be disposed of by them at their deaths as they may think proper,” can be construed as an intimation that the power is to be exercised by will. In our opinion that expression is not sufficient to limit the exercise of the power to a will.
In 22 Am. & Eng. Ency. Law (2nd Ed.), pp. 1107-8, the rule, supported by authorities, is laid down as follows: “No special mode is necessary for executing a power unless there is a provision in regard thereto in the instrument creating the power. In the absence of such provisions the power may be executed by deed, will or other simple writing, sufficient as regards the subject matter. Thus where a general power of disposition over the reversion is given to the life tenant of real estate, it may be exercised by a deed executed and delivered during his lifetime.”
In 81 Cyc., p. 1115, it is said: “As a general rule a power must be executed in strict accordance with its terms, but where no mode is prescribed, or where the manner of execution is left to the discretion of the donee, he may execute it in any manner which will legally effectuate the intention of the donor.” In support of this text the author cites Knight v. Yarborough, 4 Rand. (25 Va.) 566, and Cowles v. Brown, 4 Call (8 Va.) 477.
The authorities seem to fully sustain in the method of exercising the power r'eposed in him by the will of James Woods, which was adopted in the case at bar by Samuel F. Woods. It was, however, unnecessary to consider that question, for the law of this case on that subject was clearly settled by the decree of September, 1871, already mentioned, in the case of Wood v. Wood, which decided that Samuel F. Woods took, under the will of James Woods, deceased, an estate for life with power of appointment either by deed or will, to take effect at his death. That decree settled the question and left no longer any doubt as to the interest of Samuel F. Woods in, or his power over, the land in controversy. The validity of that adjudication has never been questioned until assailed in this collateral proceeding forty-two years after the decree was rendered.
Appellants further say that by the terms of the marriage contract Samuel F. Woods bound himself to convey to his contemplated wife his 'entire interest in the estate of James Woods, and insist that he did not do so. Wé fail to appreciate the pertinency of this contention in the case before us. If Samuel F. Woods violated his contract with his wife she could call him to account therefor, but it would constitute no ground for compelling him to exercise his power of appointment in favor of the appellants or either of them. Samuel F. Woods had no interest in the land except a life estate. He conveyed that life estate by the deed to Paul, trustee, and the only complaint that can b'e made is that he conveyed it to a trustee for his wife and the children of their marriage rather than to her alone. In this
Appellants contend that if the deed to Paul, trustee, for the benefit of Sallie E. Woods and her children is valid, under its terms the children have no interest in the property and the mother takes the fee simple. In support of this proposition appellants refer to the line of cases of which Wallace v. Bold, 3 Leigh (30 Va.) 258, was the first.
The law is settled that a gift to a wife and children, without more, vests a joint estate in the wife and children in equal portions. The language “to the mother and her children,” standing alone, is not sufficient to create a fee simple in the mother. The mother is given a fee simple only when it appears from the context, or the whole instrument taken together, that such was the intention of the testator. Fitzpatrick v. Fitzpatrick, 100 Ya. 552, 42 S. E. 306, 93 Am. St. Rep. 976. This rule is as applicable in the case of a gift by deed to a mother and her children as it is to such a gift by will.
The language of the deed bearing upon this question is as follows: “Nevertheless, upon trust for the use and benefit of the said Sallie E. Canady, who is now Sallie E. Woods, the wife of Samuel F. Woods, and all children hereafter to be born of the said Sallie E. Woods by her said husband Samuel F. Woods, and should the said Sallie E. Woods die without issue, then and in that event the said property hereby conveyed shall revert to the said Samuel F. Woods.”
We find nothing in this language to indicate a purpose to give Sallie E. Woods the entire fee in the property conveyed. On the contrary the reverse quite clearly appears, it being expressly provided that it should go to her and her children, and if she had no children it should, at her death, go back to the said Samuel F. Woods.
But it is suggested that their father, Samuel F. Woods, was before the court and represented his children. At the time the sale referred to was made the older of the two children of Sallie E. Woods was an infant of very tender years, and the youngest was not born. These children clearly took a vested interest under the deed to Paul, trustee, in the land in dispute. The doctrine of representation applies only to contingent interests, and further, in order to represent parties not before the court, the party
In Harrison v. Walton, supra, it is said: “The doctrine of virtual representation has been introduced, by which certain parties before the court are regarded as representing those coming after with contingent interests. Citing Baylor v. DeJarnett, supra.
If, however, these children had both been in being and had been parties to the suit, the sale to Sallie E. Woods would not have deprived them of their interest in the land. It is well settled that a co-owner cannot purchase an outstanding title except for the common benefit. The purchase made by Sallie E. Woods from the commissioner, for which she discharged the small liability upon the land of $180, enured to the benefit of her children who were co-owners with herself, and they were not deprived of their rights and interests by the deed being made to their mother alone. She was merely paying off a small incumbrance against the lands owned jointly by herself and her children, and is entitled to credit for such payment in any settlement made with her co-owners. Forrer v. Forrer, 29 Gratt. (70 Va.) 134; Buchanan v. King, 22 Gratt. (63 Va.) 414; Pillow v. Southwest Va. Imp. Co., 92 Va. 144, 23 S. E. 32, 53 Am. St. Rep. 809; Va. Coal, &c., Co. v. Kelly, 93 Va. 332, 24 S. E. 1020.
' It further appears that in 1888, prior to the marriage of Samuel F. Woods, he conveyed the property in ' contro
When, therefore, the property was reconveyed -to Sallie E. Woods by Virginia Dickerson, she took and held it under the same terms and conditions as before she parted with it. Apart from this view, Virginia Dickerson was a party to the suit of Woods v. Woods, and had constructive, if not actual, notice of every fact therein showing the interest of the children in the land and the limited interest of Sallie E. Woods therein.
There being no error in the ruling that the children of . Sallie E. Woods had a vested interest in the land, the circuit court properly held that the appellants could not be compelled to accept a defective title, and properly gave them the privilege of . accepting or not, as they chose, such title as their vendors had. The appellants having declined to accept the unsatisfactory title, the court properly directed the property to be returned to the parties to whom it belonged.
As to the matter of rent due, if any, no amount has been ascertained or fixed. Whether upon the coming in of the report ordered it will be held that the parties are entitled to any decree for rent, and if so whether the amount will be sufficient to give this court jurisdiction, has not yet developed. As to this subj ect the decree appealed from, would seem to be interlocutory merely; but be that as it may, it is, we think, settled that where real estate is sold and the vendor cannot give a good title, but puts the vendee in possession, who makes improvements thereon, if an accounting is taken, the rents and profits up to the time of the decree for the surrender of th'e property are to be offset against the improvements. The vendee is chargeable with reasonable rents and profits, and with any waste committed by him. Hoover v. Calhoun, 16 Gratt. (57 Va.) 109; Walker v. Beauchler, 27 Gratt. (68 Va.) 511. That the costs are in the discretion of the court cannot be questioned, and its action will not be reversed, except upon a clear showing of abuse. Dillard v. Dillard, 77 Va. 820. There is nothing in the case at bar to show any abuse of the court’s discretion, or any reason for disturbing its award of costs against the appellants.
Upon the whole case we find no error in the decree appealed from and it is affirmed.
Affirmed.