85 Va. 740 | Va. | 1889
delivered the opinion of the court.
The leading facts of the case, as presented by the record, are as follows, viz: James M. Sewell, of Cecil county, Maryland, about the year 1840, married Anna M. Pinckney, of the city of Baltimore. He was seized and possessed of a farm called “Holly Hall,” located in the said county of Cecil, and she was possessed of certain separate estate not liable for her husband’s debts. The said James M. Sewell, by the year 1855, had become heavily involved in debt; and, on the 14th day of March, 1855, the said James M. Sewell and wife (in which deed the mother of said James M. Sewell united) conveyed to Richard Grrayson, trustee, the said tract of land, “ Holly Hall,” upon the following trusts: “ to the use of the said James M. Sewell for and during the term of his natural life, and, after the death of the said James M. Sewell, to the use of the said Anna M. Sewell, wife of the said James M. Sewell, and, after the death of the said Anna M. Sewell, then to and for the use of such children of the said James M. Sewell and Anna M., his wife, as may then be living, to them and their heirs forever.”
In 1857 the said James M. Sewell and wife, with their children, came to the county of Elizabeth City, Virginia, to reside. By deed dated August 11th, 1857, Zachariah' Craver and Anna, his wife, in consideration of the sum of “$2,000 in hand paid, and the further consideration of $7,300 to be hereafter paid to Zachariah Craver by said James M. Sewell, and the payment of which is to be secured by deed of trust on the real estate hereinafter granted, conveyed to Anna M. Sewell- (the wife of said James M. Sewell) that certain plantation in the county of Elizabeth City, Virginia, and the woodland used therewith, known as ‘Melrose/ containing one hundred and twenty-one and one-fifth acres and one hundred and twenty-nine perches, to have and to hold the same to her, the said Anna M. Sewell, her heirs and assigns forever.” This said deed was duly recorded in the clerk’s office of the county court of Elizabeth City county, Virginia, September 5th, 1857. On the 29th day of January, 1858, the said James M. Sewell and Anna M. Sewell, his wife, Anna
The said James M. Sewell and Anna M. Sewell, during their joint lives, and the said Anna M. Sewell after the death of her
The bill charges that, for several years prior to the death of the said Ann M. Sewell, and at the time of the execution of the said deeds of October 19th, 1882, and of October 22d, 1883, by her to the said Louisa Frantz, and at the time of the execution of the said last will and testament, and thence during the period intervening until the day of her death, the said Mrs. Ann M. Sewell was of unsound mind, and mentally incompetent to execute any paper making final disposition of any of her property, and that the said deeds and the said last will and testament were obtained by misrepresentation and the exercise of undue influence and constant importunity, which could not be resisted by her, on the part of the said Louisa Frantz, upon the said Ann M. Sewell exercised, made and practiced. And the prayer of the bill is that the aforesaid deeds from the said Ann M. Sewell to the said Louisa Frantz, dated respectively the 19 th day of October, 1882, and the 22d day of October, 1883, and the said last will and testament of the said Ann M. Sewell, deceased, may be declared null and void and forever set aside; that partition of the said tract of land known as Melrose (or “ Bay Yiew ”) may, if practicable, be made between the parties entitled thereto, or, if partition is not practicable, then that the said tract may be sold, and distribution made of the proceeds thereof; and that the necessary accounts be ordered and taken, etc.
The bill was answered by Louisa Frantz in her own right, and by her as executrix of the will of Ann M. Sewell, deceased, and by John M. Willis as co-executor of the said will, denying and putting in issue the material allegations of the bill, and especially denying that the tract of land known as “Melrose” was purchased by tbe said James M. Sewell in trust and for the use and benefit of himself and the said Anna M. Sewell, his wife,
Upon the hearing of the cause upon bill and answers and depositions, the court decreed that, “it appearing to the court, from the admissions of the counsel for the plaintiffs, that they have abandoned their prayers asking this court to set aside and declare null and void the deeds from Anna M. Sewell to Louisa Frantz, dated respectively the 19th day of October, 1882, and the 22d of October, 1883, and to declare null and void the last-will and testament of the late Anna M. Sewell, upon the grounds of fraud, undue influence and incompetency, the court doth adjudge, order and decree that the plaintiff’s bill be and the same is hereby dismissed as to the said deeds of the said Anna M. Sewell to the said Louisa Frantz, hearing date the 19th day of October, 1882, and the 22d day of October, 1883, respectively, and as to the last will and testament of the late Anna M. Sewell. And the court being further of the opinion that the said Martin McDevitt and Florence, his wife, and William F. Stewart and Lelia, his wife, have no interest whatsoever in the tract of land in the bill and proceedings mentioned and described as “Bay View,” or “ Melrose ”; hut a lien thereon to secure to the said Florence McDevitt and Lelia Stewart each one-third of $6,390.05, invested as a loan upon the said land under the decree of the circuit court of the county of Cecil, State of Maryland, pronounced on the 30th day of January, 1858, in the cause of Thomas Thackery against James M. Sewell and Anna M. Sewell and others, doth adjudge, order and decree that the said Louisa Frantz, within
As the complainants abandoned in the lower court their claim to relief, based upon the grounds charged in their bill of mental incapacity and undue influence, admitting that there was no evidence tending to prove the charge; and as they have, by an agreement signed by counsel and filed with th;e record in this court, renounced and abandoned the said charges, admitting their inability to prove the same, the case of the appellants rests upon the claim that the said tract of land known as “ Melrose ” was purchased by the said James M. Sewell in trust, for the use and’ benefit of himself and the said Ann^t M., his wife, during their joint lives, and the life of the survivor of them, with remainder in fee to such of the children of the said James M. Sewell and Anna M., his wife, as might bé living at the death of such survivor. There is no evidence in this record of any such trust. The deed from Graver and wife to Anna M. Sewell neither expresses on its face nor admits of any implication of trust to any one, or for any one; it is clear, simple, absolute, and free from all ambiguity whatever. It conveys the property to said Anna M. Sewell “ to have and to. hold the same to her, the said Anna M. Sewell, her heirs and assigns forever.” It expresses the consideration to be $9,300, and it acknowledges the cash payment of $2,000, and the residue, $7,300, to be paid in instalments, and to be a lien secured upon the ‘land by a deed
But it is claimed by the appellants that the Melrose tract of land was held by the said Anna M. Sewell upon the same trusts as those prescribed in the Grayson deed of March 14th, 1855, because, as they allege, “ their money, clothed with a sacred trust, went into this land.” They have a decree for their money, with interest from the time (when, only, they did, or could, have any possible right to the use of the fund of $6,390.05, loaned by the court and secured as first lien upon the land) to-
The trust must result, if at all, when the legal title vests in the grantee. Perry on Trusts, sec. 133; Leading Cases in Equity, 1 vol. 337-8-9; Steere v. Steere, 9 A. D. 256. “A resulting trust must arise at the time of the execution of the conveyance.” Miller v. Blose, 30 Gratt. 751; Phelps v. Seely, 22 Gratt. 573; Donaghe v. Tams, 81 Va. (6 Hansbrough) 142.
The trust results from the original transaction, at the time it takes place, and at no other time; and it is founded on the actual payment of money, and on no other ground. It cannot be mingled or confounded with any subsequent dealings whatever—they are governed by different principles—and the doctrine of a resulting trust would be mischievous and dangerous if we once departed from the simplicity of this rule. Botsford v. Burr, 2 Johns. Ch’y, 408; Latham v. Henderson, 47 Ill. 185.
After the legal title has once' passed to the grantee by deed, it is impossible to raise a resulting trust so as to divest that legal estate by the subsequent application of the funds of a third person to the improvement of the property, or to satisfy the unpaid purchase-money; the resulting trust must arise, if at all, at the time of the execution of the conveyance. Rodgers v. Murray, 3 Paige, 390-98. From these authorities it is clear that no resulting trust could arise by any possibility from the investment of the $6,390.05, as directed hy the circuit court of Cecil county, Maryland, because, if for no other reason, it was nearly six months after the transaction of purchase and after the conveyance of the legal title to the grantee, Mrs. Anna M. Sewell.
In their petition, filed in the circuit court of Cecil county, Maryland, nearly six months after the purchase was made and completed and the legal title vested in Mrs. Anna M. Sewell hy an absolute, unconditional, fee simple deed, James M. Sewell and Anna M. Sewell say to the court that they had purchased
Lord Nottingham, in Cook v. Fountain, 3 Swanst R., 585, says, with reference to implied and presumptive trusts: “ There is one good, general and infallible rule that goes to both these kinds of trusts. It is such a general rule as never deceives, a general rule to which there is no exception, and that is this, the law never implies, the court never presumes a trust but in case of absolute necessity. The reason of this rule is sacred, for if the chancery do once take liberty to construe a trust by implication of law, or to presume a trust unnecessarily, a way is opened to the Lord Chancellor to construe or presume any man in England out of his estate.”
Chancellor Kent, in Steere v. Steere, 5 Johns. Ch. 1, says: “ Parents will usually make declarations and express intentions of holding their property for their children; but a technical trust would not be easily deduced from them unless they were contained in a last will and testament made on purpose to dispose of the estate.”
The circuit court did not err in its ruling that Mrs. Florence McDevitt and Mrs. Lelia Stewart are not competent witnesses in this cause. They are married women, and they and their husbands are directly interested in the result of the suit. Statham v. Ferguson, 25 Gratt. 28; Mason v. Wood, 27 Gratt. 783. But their depositions and that of W. H. Myers, prove nothing but some general vague and indefinite declarations or statements made by Mrs. Anna M. Sewell, long after the purchase, and in the family intercourse with her children during the twenty-five years that she was the acknowledged, undisputed and absolute owner of the Melrose tract. “ The proof must be very clear, and. mere parol evidence ought to be received with great caution.” Bank of U. S. v. Carrington, 7 Leigh, 581; Miller v. Blose,
Mrs. McDevitt says: “I have heard my mother say very often that Bay View (Melrose) was bought from the proceeds of the sale of Holly Hall.” She was only referring in a general way to what had been done by the order of the circuit court of Cecil county, Maryland, in lending the surplus of $6,1)90.05 upon Mel-rose, and which had been applied to the extinguishment, to that extent, of the lien for the unpaid purchase-money. She says: “I have often censured my mother for selling'lots, and would remark to her, if she was not careful, there would be no property left for us children. She would reply that she would watch out for that; that we would get what belonged to us.” Her mother knew that so long as sufficient remained to satisfy the lien upon the property for $6,390.05, the children would get what belonged to them; and what she meant by that expression is explained by a letter of Mrs. Anna M. Sewell written to her sister, which Mrs. McDevitt puts in evidence as part of her deposition.' In it Mrs. Sewell says, “ Mr. Sewell’s children are entitled to $6,000 in this place what he paid; the rest is 'mine, to do with as I please. I paid many a thousand 'dollars on this place. At my death, the $6,000 will be paid ¡to them by my lawyer.”
Sir William Grant, in Lench v. Lench, 10 Vesey, 513, says of a witness, “ she swears to no fact or circumstance capable of being contradicted or investigated, but merely tó a naked declaration that the purchase was made with trust-money. That is, in all-cases, most unsatisfactory evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it. Besides, the slightest mistake, or failure of recollection, may totally alter the effect of the declaration.” Donaghe v. Tarns, 81 Va. (Hansbrough) 151; Bottsford v. Burr, 2 Johns. Ch. 412 ; Phelps v. Seely, 22 Gratt. 573.
There is no error in the decrees complained of, and they are affirmed.
Decrees aeeirmed.