91 W. Va. 685 | W. Va. | 1922
This suit is for the purpose of cancelling a deed executed by the plaintiff below, and appellant, dated the 9th day of October, 1894, in which her husband joined, conveying two tracts aggregating- about 45 acres lying on the waters of Big Mill Creek in Jackson County. The decree, entered the 7th of April, 1922, denied relief and dismissed the bill.
The plaintiff, Rebecca Hunt, was married to Benjamin Hunt, now deceased, in the year 1880. Prior to that time Benjamin Hunt had been married twice, having by his first marriage four children, Henry Hunt, Luverna Hunt, Julius
Witnesseth, That for and in consideration of One Dollar in hand paid, the receipt of which is hereby acknowledged, and the further consideration of the love and affection which the first parties have for each other, the first parties do hereby grant and convey unto the second party, trustee, the following described real estate, ******* t0 paye and to Fold, unto the said Henry Hunt, in trust, and the first parties do hereby agree and declare that the said Henry Hunt shall have and hold the said two tracts of land above described in trust for the sole use and benefit of the said
Witness the following signatures and seals.
Benjamin Hunt (Seal)'
Rebecca Hunt (Seal)”'
This deed was acknowledged before George W. Staatsr. notary public, on the 9th day of October, 1894, and appears to have been admitted to record in the county clerk’s office.' nine days after it was acknowledged.
The bill charges, and the plaintiff says in her deposition-,, her husband told her at the time she executed this deed, that it was for the purpose only of securing him his life-maintenance and support out of the land in case she first: died, and relying upon this representation and without reading the deed she signed and acknowledged it; that she did" not know it made provision for disposition of the land after-the death of both grantors. The bill further charges the-defendants, who, together with the trustee, Henry Hunt,, are the children of Benjamin Hunt by his former marriages,procured the deed to be prepared and executed with the sole* object in view of obtaining inheritance in this land which-was in her name, and fraudulently represented to her and". her husband that said writing was only for the purpose of‘ guaranteeing the support and maintenance and a home for-Benjamin Hunt in case she should die first, and that they were induced to sign and acknowledge the same in that way.. The evidence totally fails to connect any of the defendants-.
, Mrs. Ella Oldham testified that she was present when the deed was brought to be signed, but that she was young at the time, wouldn’t say positively who brought it there, but remembered that George Staats was the one who took the acknowledgment, and that her father told her step-mother the deed was for his maintenance as long as he lived should she die first, and that her step-mother was forced to sign it “to keep down a racket between him and his children.” She said in substance that her father had gone to Ripley and had the deed prepared, and then came home and told his wife that he had such a deed prepared which would, secure his maintenance as long as he lived, and kept on after her until she agreed to sign it, and later the notary came and took the acknowledgment. It is evident from her testimony, that this deed had been discussed between her father and step-mother before it was signed; and just why there should be any controversy about signing a paper which secured him the possession of the farm during his life after her death, a right which he had- under the law, we fail to perceive. We
The lower court dismissed the bill.
The points of error relied upon are: (1) fraud and deceit of Benjamin Hunt in procuring his wife to sign the deed; (2) want of consideration; (3) non-delivery of the deed.
We have not considered nor passed upon the admissibility of Rebecca Hunt’s testimony of what occurred between her and her husband prior to and at the time of the execution of the deed. We do not think it necessary, in view of the disposition which we make of the case. .
It is the universal rule that fraud, to be established by circumstantial evidence or by direct testimony, must be clearly and satisfactorily proved. It will not be presumed from doubtful evidence, or circumstances of suspicion. It cannot be presumed. The presumption is .always in favor of innocence and honesty. Hord v. Colbert, 28 Gratt. 49; Board of Trustees v. Blair, 45 W. Va. 812. The rule is so universally acknowledged, it would serve no useful purpose to cite authorities. A fraudulent intent must be shown to have existed in the mind of the person who is accused of perpetrating the fraud. 12 R. C. L: p. 420, sec. 167. We cannot say, in view of the evidence, that the husband knowingly and deliberately perpetrated a fraud. The evidence is not of that clear and convincing character which is sufficient to overcome the presumption of innocence and fair dealing. The land had been paid for largely by the efforts of the husband, and the title had been recently conveyed to the wife. The transfer of the property to a trustee for the joint use of the parties and for the maintenance and
By reason of the confidential relation existing between the husband and the wife, appellant asserts that when she has made her charge of fraud and misrepresentation, with some evidence to sustain it, the burden of proof shifted.to the defendants to show the bona fides of the transaction, and to sustain this proposition cite: Mankin v. Davis, 82 W. Va. 757; McCarthy v. Saunders, 83 W. Va. 613; Colston v. Miller, 55 W. Va. 490; Carlsbad v. Kelley, 84 W. Va. 190, and other citations, all of which were suits to set aside conveyances in fraud of creditors, in which the grantors and grantees were in confidential relations such as husband and wife, father and son, and the like. That class of cases has no application here.
It is asserted that no consideration in fact passed, and the deed should be held void for that reason. It is well established that parol evidence is admissible to show the actual consideration paid or promised is different from that recited in the deed; but it is not admissible to alter or contradict the legal import of the deed. The weight of authority is that the acknowledgment of the payment in a deed is open to unlimited explanation in every direction; but the recited consideration cannot be attacked for the purpose of showing that the deed was not founded on valuable consideration; the legal import of the deed, the transfer of the title, cannot be defeated in that way. Baughman v. Hoffman, 90 W. Va. 388, 110 S. E. 829; Devlin on Real Estate, sec. 823; Brown on Parol Evidence, sec. 92. The rule is stated in 3d Jones
The third point of error is non-delivery of the deed to the grantee. Delivery of the deed in many cases is a matter of intention, and where the circumstances are such- that an intent to deliver is plainly apparent and where the grantor has executed and acknowledged it with that purpose and desire, the conveyance is as effective as if the deed had been actually delivered. Foreman v. Roush, 87 W. Va. 341. See Roanes v. Archer, 4 Leigh 565, where it was said: “Indeed, no particular form of ceremony is necessary to make a good delivery. It is sufficient if the grantor testifies his intention to deliver. or put the deed into the possession of the other party. ’’ And in Hutchinson v. Rust, 2 Gratt, 394, (2nd point of Syl.) it was said: “A deed being acknowledged before justices by the grantor, who retains possession of it; it depends upon the intention of the grantor at the time, whether the ackonwledgment is a complete execution of the deed.”
From what we have said it follows that the decree of the circuit court is affirmed.
Affirmed.