23 W. Va. 475 | W. Va. | 1884
This suit was originally brought in the county court of Preston county in May, 1875,'by Michael Murray against Levi II. Sell and James Ward and subsequently moved to the circuit court of said cou.nty. The plaintiff in his original and amended bills alleges, that two hundred and five acres of land lying in said county was in 1858, advertised for sale by a commissioner under and by virtue of a decree of said circuit court; that before the sale he and the defendant Ward agreed that they would jointly buy the land and that Ward should do the bidding for it; that on the day of sale he was absent but Ward was present and bid off the laud at six hundred and fortv-six dollars and they shortly after paid the purchase-money to the commissioner each paying one half thereof; that Ward was-to take and hold the title for them jointly until they could re-sell the land and then the proceeds were to be equally7 divided between them ; that the legal title was conveyed to Ward by the commissioner in ‘February, 1862, and he took possession of and resided on the land until 1864, when he sold it to one Hull who paid to Ward in cash one hundred and fifty dollars and gave his five bonds to Ward for the residue of the price; that Ward divided said notes by delivering two of them to plaintiff
The defendant Ward in his answer denies that the plaintiff ever had any interest in said land or that any agreement had been made before the sale for the purchase of the land on their joint account, but he admits that after the first purchase by him he agreed verbally that, if the plaintiff would pay one half the purchase-money he should have an equal interest in the laud and that plaintiff did pay to the commissioner one half the purchase-money. But Ward claims in his answer that as his said agreement with the plaintiff' was merely verbal and made after the sale to him, the same, was invalid by reason of the statute of frauds and no interest in the land passed thereby to the plaintiff, and that the payment made by the plaintiff operated simply as a loan and having-been made more than five years before the institution of this suit the right to recover the same is barred by the statute of limitations which he pleads and on which and on the statute of frauds he relies. Ward avers that the plaintiff was also to pay one half the taxes and the expenses of improving the land which he wholly failed to do. He further avers that
The cause was referred to a commissioner to report a settlement of accounts between the plaintiff and Ward, and he reported that Ward was indebted to plaintiff as of October 3, 1879, in the sum of five hundred dollars and sixty-eight cents. The defendant, Ward, excepted to said report, after which and before final decree he died and the cause was thereafter revived in the names of his real and personal representatives. On August 21, 1882, the coui-t entered a final decree dismissing' the plaintiff’s bill without acting on the report of the commissioner or Ward’s exception thereto. Tfroni this decree the plaintiff was allowed an appeal.
The first question to be considered is, whether or not the plea of the statute ot frauds bars the plaintiff’s claim to an interest in the land ? The proof does not distinctly show that, at the time the land was bid off by Ward in 1858, there was an agreement between the plaintiff and Ward that the latter should make the purchase of the land on their joint account; but it fully establishes that the purchase was on credit and that before the purchase-money was paid or the deed executed such agreement was made and in accordance with it the plaintiff and Ward each paid to the commissiqner who sold the land one half of the purchase-money, and that thereafter by the agreement the deed was executed to Ward for their joint use with the understanding that they would re-sell it and divide the proceeds of sale. Ward says, in his deposition : “ Before I paid the money to Hardesty (the commissioner) I proposed to the plaintiff', Murray, that if he would pay one half of the purchase-money for the land in controversy and pay one half of all expenses, taxes and improvements, that I would admit him into equal partnership.with me in the purchase and ownership of the land. This was a verbal arrangement; there never was any writings between
Ward also testifies: “The fifty dollars, after deducting the expenses of making deed .to Hull, I divided with plaintiff giving him twenty-two dollars and fifty cents. I also gave Murry two of Hull’s notes and retained three myself. Hull sold the land in about two months to a man by the name of Arnold. * * * I collected the first note given by Hull from Arnold and eighty dollars on the second which had been given to Murry.” He further testifies that he had suit brought to sell the land for the residue of the money and that on the day of sale he again purchased it “for what purchase-money was against it and the costs of suit and expenses of sale,” and that he paid the costs amounting to seventy dollars and forty cents; that he afterwards sold the land to the defendant Sell for nine hundred dollars. “Said Sell paid me in hand one hundred dollar® and when I made him the deed in June, 1874, he paid mi four hundred dollars more and gave his three notes for one hundred and thirty-three .dollars and thirty-three cents each, and in June, 1875, Sell paid me the first one of the one hundred and thirty-three dollars and thirty-three cent notes. The notes were all without interest till maturity. The other two notes I yet hold unpaid.”
It seems to me this testimony of the defendant Ward of itself and'without reference to that of the plaintiff and the other witnesses which fully sustain the allegations of the plaintiff’s bill, fully establishes a resulting trust in favor of the plaintiff for one half the land. Conceding there had been no agreement to purchase on joint account at the time the land was bid off by Ward, still as such agreement was confessedly made before any part of the purchase-money had
The plaintiff having paid one half the purchase-money before the completion of the purchase upon an express agreement that he was to have an equal interest in the land, the subsequent conveyance of the legal title to Ward did not divest him of that interest. Ward as to such interest held the title as trustee for the plaintiff and in equity a trust resulted in his favor to a part of the land equal to the proportion of the purchase-money paid by him — Shoemaker v. Smith, 11 Humph. 81; Baker v. Vining, 30 Me. 121; Buck v. Pike, 11 Me. 9; Bank v. Carrington, 7 Leigh 566; 13 W. Va. 64.
Trusts of this character are exempted from the statute oí frauds and it is competent for the real purchaser to prove his payment by parol evidence even though it be otherwise expressed in the deed — Bank v. Carrington, supra; Botsford v. Barr, 2 Johns. Ch. 405; Sprindle v. Hayworth, 26 Gratt. 392; Troll v. Carter, 15 W. Va. 567, 579.
I am, therefore, of opinion from the evidence, which the subsequent conduct of the parties strongly supports, that the original purchase of the land was intended to be and was in fact a joint purchase by the plaintiff aud Ward and that the subsequent conveyance of the legal title to Ward did not deprive the plaintiff of his interest in the land, but that thereafter Ward held one half of it as trustee for the plaintiff.
The rule that, when the relation of trustee and cestui que trust is once established, no subsequent dealing with the trust-property by the trustee can relieve it of the trust as between
As the court below did not pass on the report of the commissioner or the exceptions thereto, I do not deem it my duty to do so here as the parties may desire to take further testimony in regard thereto. The report does not seem to me to be at all prejudicial to the defendants but rather favorable; still I think it best to remit the whole matter to the circuit court for its action before any action should be had on either the report or exceptions by this Court. .
Reversed. Remanded.