Lorentz v. Lorentz, 14 W. Va. 809

Lorentz v. Lorentz

14 W. Va. 809 | W. Va. | 1879

JOHNSON, Judge,

delivered the opinion of the Court:

As the questions that are presented by the record are mostly of fact, I have thought it necessary to make a full statement of the facts in the cause.

It is clearly proved by the evidence that Jacob Lorentz sold the seventy-four acres of land in the bill described to David D. Whetzel, and bound himself in a writen contract to convey the said land to him by deed of general warranty, when the purchase-money was paid. That said Whetzel paid to the said Lorentz the whole of the said purchase-money, and was therefore entitled to a conveyance of the land.

It is just as clearly proved that said Whetzel sold said tract of land to the plaintiff, Perry Lorentz, in 1842, and put him in possession thereof, and assigned to him the said contract made with said Jacob Lorentz. Why then is not said Perry Lorentz entitled to a deed from the *819heirs of Jacob Lorentz for said tract of land? Whet-zel has received as he says himself, the entrire purchase-money for the said land.

It is first insisted that Perry Lorentz is not entitled to the conveyance, because, as is claimed by the defendants, he did not pay for the land.

This court held, in Lockhard & Ireland v. Beckley et Syllabus 1. al., 10 W. Va., 74, that where a husband or father purchases land in the name of a wife or child, or in his own name, and in either case procures a conveyance to be made to the wife or child, there is no resulting trust to the husband or the father as in the case of a purchase by one and a conveyance to a stranger. Why is this ? Because the presumption is, in such a case, that the husband or father intended to give the land to the wife or child. So it follows as a nesessary consequence, that when a father purchases a tract of land in the name of a son, and in the written contract the vendor is required upon the payment of the purchase-money to convey the land to the son, and the father pays the purchase-money, the son can in a court of equity compel the vendor to convey the land to him.

It can make no difference, that in this case the title was in the father, because his contract was to convey the property to either Whetzel or the assignee of said Whetzel. At least that is the legal effect of the contract* And even if the father had procured that assignment to have been made by Whetzel to his son Perry, and had paid all the purchase-money himself, as is claimed he did, to Whetzel, unless there was an abrogation of the contract, he would have been compelled in a court of equity to convey the property to his son. But the evidence of the old gentleman himself, corroborated by that of Whet-zel, convinces me that it was not his money that paid for the seventy-four acres of land. He said to one witness, to whom he had said the land belonged to Perry, in answer to a question, “ Why is this Perry’s land ?” “ because Perry’s wife paid.her own money for it.” He told an*820other witness that the land was Perry’s, and said Perry “had wanted him to make him a deed for it, and he refused to do it, on the ground that he intended to “keep it for Perry’s wife and children for a wet day;” that “ if Perry got it he would fool it away.” A short time before his death Jacob Lorentz was anxious to know of his son Mifflin, whom he had made executor of his will, “if he had that matter fixed,” and then raising himself up again in bed, he inquired of Mifflin “if he had all things fixed right,” “if the papers were all fixed right,” and Mifflin Lorentz said: “He appears to be troubled about Perry Lorentz’s business — about the seventy-four acres of land;” and further said to those -who were present, “I fixed that long ago,” and that “ Perry is all right.” The deposition of George C. Lorentz, who details the above conversations, was taken long before the deposition of Mifflin Lorentz, who so stoutly defends in this cause. Mifflin does not even refer to the said conversation, and does not show how he “had fixed the matter.” It is evident that he never did fix it; although his saying lie had may have soothed the anxiety of his dying father, who wanted justice done to his son Perry.

It is urged that the fact of the title-bond being in the possession of Jacob Lorentz, is a reason why the conveyance should not be decreed. There is nothing strange in the fact that the bond was in the possession of the father of the man who was entitled to it. Perry seems to have had a great deal of confidence in his father, as it was proper he should. It does not appear why his father took possession of it. It clearly appears that Perry did not surrender it to him.. Whetzel said, after he. had assigned it to Perry, he laid it down on the counter, and Perry went to take it, and his father took it. Why his father took it, Whetzel did not know.. But the idea that Perry had surrendered it to him is clearly repudiated by the fact, that ho afterwards asked his father for the conveyance, and the repeated declarations of his father that Perry was entitled to the land.

*821It is further urged, that Perry’s silence as to his claim, and occupying the land under the deed of trust for the ' benefit of his wife and children, is a reason why the conveyance should not be decreed to be made. These facts constitute no good reason to deny the conveyance, unless they amount to an estoppel.

Every estoppel, because it concludcth a man to allege the truth, must be certain to every intent, and not be Syllabus 2. taken by argument or inference. Vanbiber v. Beirne et al. 6 W. Va. 168. His silence, and occupying the land while the trust was in existence, cannot under the circumstances of this case amount to an estoppel. He might very well remain silent, while his wife and children under the benefit of the trust were not only enjoying the seventy-four acres, but three hundred and thirty acres more. The trustee, Jacob Lorentz, Jr., testifies, that after that trust was executed, his father, Jacob Lorentz, told him he must have the seventy-four acres transferred on the commissioner’s books to Perry, because it was Perry’s land, and he,-Jacob, did not want to pay taxes on it twice. It does not appear for what reason it was included in the trust deed. Perry’s silence under the circumstances, and his occupancy of the land with his wife and children during the existence of the trust-deed, did not injure the defendants in this cause, nor put them in a worse condition than they otherwise would have been.

We think the plaintiff has shown himself entitled to a specific performance of the contract set out in the bill; and for the foregoing reasons the decree of the circuit court of Braxton county, rendered on the 24th day of August, 1876, dismissing the plaintiff’s bill with costs, is reversed, at the costs of the appellees; and this cause is remanded to the circuit court of Braxton county, with instructions to that court to enter a decree in this cause, requiring, within such reasonable time as said court may appoint, the adult defendants, heirs-at-law of Jacob Lorentz, deceased, to execute to said plaintiff a deed for *822said seventy-four acres of land, as required by the terms of said contract or title-bond filed in the papers of the cause, and appoint also a commissioner to execute said deed on behalf of the infant defendants, and provide also in said decree, if such adult defendants do not execute such conveyance in such reasonable time, then a commissioner, to be appointed by such decree, shall execute the same on their behalf; and such decree shall also give costs in the said circuit court to the plaintiff, and the cause shall be further proceeded in according to the rules governing courts of equity.

The Other Judges CoNcurred.

Decree Reversed. Cause Remanded.