126 Va. 249 | Va. | 1919
delivered the opinion of the court.
In accordance with the will of John M. Hook, deceased, the 630 acres of land in controversy was sold in a suit for partition on November 15, 1902, and George W. Hook, a son of the testator, became the purchaser at the price of $5,920. He paid in cash $414.40, and made three notes for the deferred payments with appellant, Lillian V. Hook, his sister, and M. E.. Hook, wife of appellee, A. J. Hook, as sureties. M. E. Hook took a child’s share in testator’s estate under the will, subject to certain debts that' her husband owed the estate, and on condition that the portion so willed to her was to be her property as long as she remained the wife of A. J. Hook; but in the event that she should be separated from her husband by death or otherwise, then her share should revert to him. She sub
The interests of George W. Hook, Lillian V. Hook and A. J. Hook in the estate of their father were credited on the purchase price of the land. But George W. Hook having made default in payment of the residue of the purchase money, the land was resold on January 6, 1905, and Lillian V. Hook became the purchaser at the price of $2,500. The second sale was confirmed, the purchase money paid, and title conveyed to the purchaser by proper deed which was duly recorded. Between the dates of the first and second sale, A. J. Hook, who had been a resident of West Virginia, returned to Highland county and took up his abode on the land and has remained in possession of it ever since.
For convenience Lillian V. Hook will be designated “plaintiff” and A. J.'Hook “defendant.”
In November, 1914, plaintiff filed her bill against defendant in the Circuit Court of Highland county, alleging, among other things, that she had advanced to him $400 to be invested in stock for the farm, which defendant was to occupy as her tenant; that the increase from the stock and proceeds from the farm were to yield a net money rental of at least $500 per annum; that for three years the rent was to be applied by defendant in payment of a debt due by plaintiff to G. O. Flesher, for which he held her bond for $1,500, and thereafter was to be paid to plaintiff; that at the time of the purchase of the land plaintiff borrowed from Flesher $2,000 (which was used in paying the purchase price), for which she executed two bonds, one for $1,500 and the other for $500, both payable on demand; and that defendant had failed to pay to Flesher the installments of rent according to the agreement. The bill prays for an accounting by defendant, and charges that he had been guilty of waste in cutting and selling tan bark and timber from the land, and further prays for an injunction and for general relief.
Upon these pleadings voluminous depositions were taken, upon consideration of which the circuit court passed the decree under review establishing the trust, and decreeing an accounting between- the parties; and -that upon payment by defendant to. plaintiff of the amounts for which he might be liable, she should convey the land to him by deed with special warranty of title. From that decree this appeal was granted.
Among the earlier cases, that of Knibb’s Ex’r v. Dixon's Ex’r, 1 Rand. (22 Va.) 249, in principle, is strongly in point. It was there held, that where.it is doubtful from the evidence whether a deed, absolute on its face, was of was not intended as a mortgage, an issue should be directed to try the question. We desire also to direct attention to the case of McCully v. McCully, 78 Va. 159, a controversy be
It may be observed that counsel on both sides, while
Reversed and remanded.