67 W. Va. 499 | W. Va. | 1910
Tbe nature and object of this suit are fully disclosed by the ojDinion. in Johnson v. Ludwick, 58 W. Va. 464. After the cause was remanded, an amended bill, substantially the same in its allegations as the original bill, 'was filed. To this, the defendants demurred, and,-their demurrers having been,overruled, filed an answer. Depositions were taken and filed, and, on the hearing, a decree was pronounced, granting to- the plaintiff the relief prayed for in his bill. It was adjudged, ordered and decreed that the full equitable title to the tract of land in question was in the plaintiff and the defendants were required, within ten days from the adjournment of the term of the court at which the decree was pronounced, to convey and release to the plaintiff, by an apt and proper deed, their interests in the land, which is here construed to be the legal title inherited from plaintiff’s deceased wife, and it was further ordered that, on their failure to do so, such deed should be executed by a connnissioner who was appointed by the decree for the purpose. From this decree, the defendants have appealed. ’
As the sufficiency of the original bill, differing in no substantial respect from the amended bill, was declared by this Court on the'former appeal, and the evidence, adduced in support of its allegations, adheres to the theory of the bill, no separate discussion of the demurrer is necessary. What is to be said of the sufficiency of the evidence and the nature of the case made by it will fully suffice.
The evidence consists almost wholly of proof of oral declarations on the part of the wife, the grantee in the deed, that, though the deed was to be taken in her name, because, in that way, the land could be purchased for $100.00 less money, she was wholly unable to pay the purchase money, that the same ’was to be paid by her husband, the plaintiff, and that she was to convey the land to him later, and proof of her inability, and his abilit}', to pay it and actual payment thereof by him. Many of these declarations were made before the deed was executed,
The remaining and important inquiry, therefore, is whether the statute of frauds excludes the claim, thus set up, and this question seems to be foreclosed by our decisions, -Johnson v. Ludwick, 58 W. Va. 464; Currence, v. Ward, 43 W. Va. 367, 370, 371; and Troll v. Carter, 15 W. Va. 567. Taking these cases in their inverse order, they hold as follows: “But if a party obtains a deed without any consideration upon a parol agreement that he will hold the land in trust for third parties, such a trust so proven will be enforced in a court of equity, as to permit a party to hold the land so obtained for his own use would be to permit the grantee to commit a fraud.” Troll v. Carter. “Where one buys land under executory agreement, and afterwards, before legal title passed, verbally agrees that if another will pay the purchase money he shall have' the land, and that other does so, the trust is enforcible in equity.” Currence v. Ward. “But where land is purchased and paid for by the husband, and the conveyance taken in the name of the wife, pursuant to an understanding and agreement between them -at the time of the purchase and conveyance, that the land is to be held by the wife for the benefit of the husbaind, this creates an express trust which will be enforced in favor of the husband.” Johnson v. Ludwick. The doctrine of these cases seems to be sustained by the text and cases cited in 28 A. & E. Ency. Law 872.
A purchase by the husband in the name of the wife would be regarded, on the face of the transaction, as a gift to the wife, but this is only a rebuttable presumption which can be overthrown by evidence to the contrary. Johnson v. Ludwick, cited. Here, the evidence is amply sufficient, in our opinion, to accomplish this result.
For the reasons stated, the decree will be affirmed.
Affirmed.