64 W. Va. 225 | W. Va. | 1908
Abram A. Hudkins gave two deeds of trust on a tract of 192 acres of land in Barbour county to secure two debts to J. N. B. Crim. Hudkins was under judgments to other creditors, and Crim brought a creditors’ chancery suit against that land to sell the land for the payment of his own and other debts. The land was sold under decree in that case to Crim for $5,285, and the sale was confirmed, and the land was conveyed under decree in the case to Crim. The sale was on the 22d day of October, 1886. Crim died 11th January, 1905. In January, 1906, Abram A. Hudkins brought the chancery suit now in our'hands for decision against the executors and devisees of Crim, stating that before the land was sold to Crim under the decree Hudkins and Crim made an agreement by which Crim was to buy the land in his name for the benefit of Hud-kins, who was to repay Crim the purchase money with interest and pay taxes, and that it was under such agreement that Crim did buy in the land. The bill of Hudkins thus charged that such agreement created an express trust making Crim but a trustee holding title for Hudkins, and the bill alleging that Hudkins had fully repaid Crim his outlay in the purchase of the land, asked that such trust be executed by a decree requiring the devisees of Crim to convey to Hudkins the said land. The case resulted" in a decree in favor of Hudkins. Crim’s devisees and executors appeal the case.
But that is not all standing as evidence against that trust. In 1902 Abram A. Hudkins and E. B. Hudkins made an option for the sale to the Bijou Coal Company of veins of coal in the land. It seems that Crim took exception to this, else we cannot otherwise explain the fact that the Hudkinses gave Crim the following writing: “Philippi, W. Va., May 13th, 1902. We the undersigned gave to Edward Thompson, of Clarksburg, W. Va., an option of the Pittsburg and Sewick-le.y veins of coal, on the 5th day of March, 1902, at $80 per acre for one hundred acres of the farm upon which we live to run for 90 days, when we optioned said land we suppiosed J. N. B. Crim would approve the option, as he had told E. B. Hudkins he would let the coal go at the price the other men on the Elk side would sell at. Of course we know the
The above is not all standing in the way of the trust. On the 10th day of September, 1900, Crim and Abram A. Hud-kins and his wife conveyed to W. C. Snow coal in eight and a fraction acres of this land. It is fair to say that Abram A. Hudkins joined in this' deed only to pass his wife’s dower. This deed contains this clause: “The party of the first part, J. N. B. Crim, further covenants that he is • seized of an estate in fee simple in said land, and that he has good right to convey the same.” Now, if Crim did not own the land, why
Grim conveyed the coal in this land to the Bijou Goal Gom-pany under contract made by himself with it by deed dated 28th February, 1903, conveying it only subject to the contingent dower of the wife of Abram A. Hudkins. This is a direct assertion of ownership by Grim. He would hardly warrant generally if Abram A. Hudkins had the full trust ownership in the land. So Grim utterly denied such trust and dealt with the property as his own. Abram A. Hudkins knew of this sale and conveyance, but made no demand on Grim, and never sued until after his death. In this connection I will state that Hudkins’ bill says he never suspected that Grim would deny a trust until February 24, 1903. This was four days before Grim conveyed the coal. Why, then, did he not enforce his trust after his suspicion had been aroused? E. B. Hudkins says that a year later, in the spring of 1904, Grim expressed a willingness to make a deed to Iris brother. Why did he not get Grim to make such a deed? Why delay if there was a trust? In connection with such assertion of ownership by Grim we find him paying Heatherly $15 foy sawing timber from the land in March 1903.
Hudkins claims that he repaid Grim the cost of his purchase. Not a single receipt is shown though the amount was large, %>5,285, besides interest, tíuch repayment is highly improbable, or rather impossible, when we reflect that Abram A. Hudkins before the land was sold was under a load of debt which the sale did not discharge, but left unpaid a debt owned by Grim, which really went with the rent of the farm to make up the promissory note of $3,048.55, besides other debts owing to others. The total of his debts seem to have been upwards of $16,000. Abram A. Hudkins had no other estate. Where in the world, in his deep insolvency, did he get the money to pay that large debt to Grim'with its interest?
The documents above repel all idea of trust, and if it exist, the insolvency of Abram A. Hudkins repels the allegation of payment. But in addition to the above documentary evidence denying any trust we have the distinct evidence of
It goes further to repel the' idea of a trust that it is not claimed that Abram A. Hudkins ever paid a dollar to the commissioner who sold the land under the decree. If it could be said that any money was paid, we could plausibly explain the payments by applying them on the debt of $3,-048.55. As above said not a single receipt attests those payments. Strange this is in so important a matter. In'this connection there is another thing of telling force. Peck as a witness was asked by counsel for Hudkins whether J. N. B. Crim had not for years before his death kept a daily record of money collected from debtors, and whether such record was in the possession of his executors. Pock answered that Crim had kept such record as far back as 1888. Counsel for Hudkins did not ask Peck to produce that record. If it showed payment by Hudkins and on what account, why did not Hudkins call for it?
Let us reflect that Abram A. Hudkins took no steps to enforce the trust which he now so late asserts for nearly twenty years, and then not until Crim was in his grave. Being in ‘ possession I do not say that time would bar him under the doctrine of laches; but is not this great delay strong to nega
The brother of the plaintiff, E. B. Hudkins, is a very prominent witness for the plaintiff, giving in evidence declarations or admissions of Grim that he had bought the land in trust for Abram A. Hudkins. He is the chief witness for his brother. Eliminate his evidence and we have practically nothing left to show the existence of such trust. Counsel for Grim’s estate say that he is incompetent to give evidence of conversations and transactions with Grim, now dead, under chapter 130, section 23, of the Code. We cannot so hold. He is not a party, and so we do not have to say whether, if a party, that fact alone would exclude him regardless of any interest. Speaking for myself I do not think so, because under the common law excluding.a party as a witness, which has been abolished by the Code with certain exceptions specified in section 23, the party must have an interest in the result of the suit to be promoted by his evidence. 13 Encyclopedic Dig. 906. Has E. B. Hudkins any interest in the result of this suit? It does not involve a deed of trust in which he is a joint debtor. He would not get any of the land by success of the plaintiff in this suit. It is true that Abram A. Hudkins had, before the sale to Grim of the land under the decree, but after Grim’s two deeds of trust for which the sale was made, sold to the wife of E. B. Hudkins forty acres'of the land, and thence it might be claimed thatE. B. Hudkins had an actual interest; but he had none. Why? It was his wife’s separate estate and he had no estate ex jure mariti, that is, to hold the land during marriage, as the sep arate estate act abolished that estate in the husband, and he has no curtesy initiate as at common law, as the separate estate act changes this, and a husband relict has no curtesy until after his wife’s death in his wife’s separate real estate. Guernsey v. Lazear, 51 W. Va. 328. His curtesy is only contingent upon his wife’s death before his death. And to exclude a witness for interest that interest is tested by common law and must be present, certain, vested interest, notan interest uncertain, remote or contingent. 13 Encyclopedic Dig 937; 1 Greenleaf Ev., sec. 386; 3 Jones on Ev., sec. 744.
It is claimed in this case that this answer of E. B. Hudkins binds Abram A. Hudkins as if it were his own answer. This theory is based on the law that the answer of one defendant, as to its statement of facts, is binding on his co-defendant where they have a joint interest as stated in Dickinson v. Clark, 5 W. Va. 280, pt. 3, and 10 Cyc. 981, and 4 Elliot on Ev., sec. 3206, and 1 Am. & Eng. Ency. L. (2d Ed.) 703, 720. But it does not appear how E. B. Hudkins and Abram A. Hud-kins have any joint interest in this land, and we are not told wherein this joint interest exists.
Abram A. Hudkins is silent as a witness in this case. His non-appearance may be excused because by law he could not give evidence as to any conversation or transaction with Grim in his life time; but there are certain matters of importance in this case as to which he would be a competent and very important witness. He could have disputed the testimony of E. H. Grim and Melville Peck about his conversation with them, after the death of J. N. B. Grim, in which they say that.he told them he was a renter of the farm and was to pay rent at eight per cent on what Grim had paid for the farm, and that if Crim had lived he would .not have charged him that much interest and wherein they said he talked about buying from them. This statement that he was a renter and was negotiating for the purchase of the farm from Crim’s devisees is very important and the failure of Abram A. Hud-kins to take the stand as to those statements applies the rule of law where evidence is in the possession of a party and he does not produce it the omission tells against him. Especially is this the case where one witness asserts a conversation with another material in the case, and he fails to deny it. This makes us hesitate to believe that he was willing to go on oath to deny this matter.
Reliance is placed for the plaintiff on Currence v. Ward, 43 W. Va. 367; but the cases are vitally different in fact. In that case the evidence clearly established the agreement off Wards to buy for Currence at the sale. Wards agreed that after the sale they did tell Currence if he would pay the cost of the land he might have the land. In that case Currence paid the commissioner the cash payment, and other payments to a large sum. Here Hudkins paid nothing to the commissioner. The Wards seemed not to deny the agreement, but claimed that as the land was resold for Currence’s failure to pay, the trust ended. Currence paid in fifteen ’ months after paying the commissioner $1,305.70. The cases, in their facts, are widely dissimilar.
For these reasons we reverse ‘the decree and dismiss the bill. ‘
H ever sed.