82 W. Va. 78 | W. Va. | 1918
The decree declares fraudulent and void as to the claim of the plaintiff a deed made by John Carr, her brother, to his co-
There are for decision but two main questions; the proper ■construction and interpretation of the deed from Enos Carr to his son John, and the sufficiency of the proof to show fraud in the deed from John Carr to his children. All others are minor or incidental.
The first question requires an interpretation of the provision of the deed of Enos Cam the language of which is: “John Carr is not to have power to sell or make a deed for such land, nor the law nor court of justice is not to have the right to sell or rent this land for John Carr’s debts, at his ■death (it) is to pass to his lawful heirs.” It is conceded that the deed vested in the grantee an estate for life only, and such is the plain import of the instrument itself. Nor does it create or signify an intention to create a trust for his benefit or protection against the demands of creditors. It conveys land directly to him with remainder over to his children in fee. However, conceding the power to convey, his deed of October ■25th effected nothing more than the merger of the life estate so created into the fee simple estate; for when a greater and a less estate unite in the same person without, an intermediate «state, the less immediately merges or disappears in the great
Is the provision quoted from the Enos Carr deed void as an attempt to impose a restraint upon the right of alienation? There seems to be a general unanimity of opinion among the authorities discussing the subject that the right of alienation is an inherent and inseparable quality of an estate in fee simple whether the estate be created by grant or devise; and a grant or devise which forbids all alienation is void as to the limitation because repugnant to the estate granted or devised. 24 Am. & Eng. Ene. Law, 864, citing many English and American decisions. The reason usually assigned as the basis of this conclusion is that as property is necessary for trade and commerce between individuals and nations it cannot lawfully be withdrawn from such uses by restrictions placed upon its disposal.
After an elaborate discussion and review of the decisions as regards the validity of such restraints and the manner in which they may lawfully be imposed, Judge Brannon reached the conclusion in Guernsey v. Lazear, 51 W. Va. 328, that although á wife lawfully may by will entrust her executor with land and the collection and disbursements of the rents and profits thereof for the use and benefit of her husband while he liyes, and may provide that neither the real estate nor its profits shall be bound for his past or future debts, she cannot lawfully devise the land and profits directly to him for life or in fee upon the same condition as to debts and liabilities. He says: “ So if a life éstate is conveyed to the party himself, vesting him with the legal estate, such a limitation or,provision against alienation or debts would be void.” p. 340. This may be and perhaps is dictum merely, but the principle is sustained by abundant authority and is questioned scarcely anywhere, if at all, though in this state and in many others restraints upon the alienation of equitable life estates, eom-
But this case presents a problem slightly different. The provision is, not that the life tenant and his assigns shall upon alienation lose the estate by forfeiture or by limitation over, but that he shall be compelled to keep it, so that neither his grantees not his creditors can acquire or charge it. The case of Camp v. Cleary, supra, stated the question but declined to consider it because not necessary to the decision. In Railway Co. v. Honaker, 66 W. Va. 136, 148, restrictions upon the alienation of an estate in fee were held void. See also Totten v. Coal (& Coke Co., 67 W. Va. 639, 643, where many authorities are cited. In that case, T. K. Totten for a small money consideration and “a good and peaceable life maintenance” granted to his wife and children all of his estate, reserving to himself the legal title for his life and further providing that “if the said T. K. Totten & wife think they can better their situation then they shall be vested with the right and power to sell and convey everything conveyed in this deed.” Pursuant to that power they sold the property. It was held by a divided court- that the first grantees took only an estate for the life of the grantor, subject to the reserved power of alien.ation, and that the reconveyance was valid. Though the first grantees were thus deprived of their power of alienation over the estate conveyed to them, such restraint did not totally or unreasonably remove the property from the channels of commerce since the power of alienation remained in the grantor, according to the majority view, nor was there any stipulation that the property should not be liable for the debts of the. grantees.
The discussion in Guernsey v. Lazear, supra, indicates the> trend of this court toward holding such restraints upon the-alienation of a legal life estate void, and such, we think, is the,
Though named a defendant and duly summoned, John Carr •did not demur or answer or otherwise appear and the bill was ■•taken pro confesso as to him; nor did he testify in the case. Tie therefore waived proof of the fraud charged; indeed presumably admitted it. But his admission cannot be used .against his co-defendants who in their answer have denied the fraud charged. It binds him but not necessarily them.
Docs the burden rest upon the plaintiff to show the fraudulent intent and purpose of the deed and the wrongful participation of the grantees therein with knowledge of such designs, or on them to show their innoceney or lack of knowledge of such intention and purpose on his part? It is unnecessary to locate that burden definitely if the evidence introduced is sufficient to support the decree of which complaint is made. If it is, it matters not who assumed that burden. For virtually the decree adjudged against the grantees upon the question of scienter and participation in the fraudulent design contemplated by the deed, if indeed it is fraudulent.
' After a thorough examination of the case as presented, we 'are convinced that nothing in it warrants a conclusion, other
They do attempt to deny knowledge of any vice or fraud in the transactions or conscious participation therein to accomplish such fraudulent design. There is but slight, if any, real foundation in the proof upon which to predicate in-
We are therefore of opinion to affirm the decree and remand the cause for further proceedings therein.
Affirmed, and remanded.