Owens v. Owens

Richmond W. C. Owens v. Owens.

Record No. 4292.

March Present, All the Justices. case. The states the opinion

A. T. for Griffith, appellant.

Raymond Boyd, appellee. J. of the court. delivered the J., opinion Smith, Owens, The filed a bill W. C. chancery plaintiff, Owens, defendant, that brother, A. his alleging against J. Owens, died intestate father, when his H. S. on July half interest in his the owner of a one 1950, he became interest to the dower real father’s subject mother, and a one third interest personal property $100,000. than The worth more father, whose estate was in the sum of was indebted further that bill alleged the real his share of $5,000, constituted lien on his in this indebtedness he estate, and that to conveyed pay 31, 1950; that the defendant terest in the estate to July face, not intended on its it was the deed was absolute while secure but was intended to as such payment parties, him- $5,000, an amount defendant obligate agreed self as for the that the had been surety plaintiff; fully satisfied out of inheritance, and that he paid had plaintiff’s and demanded of the defendant an requested accounting and settlement of his interest the estate, but that defendant had refused and declined even the value of though plaintiff’s interest the estate was in $30,000. excess of “an taken, bill account be prayed inquiry directed as state of the accounts between com- your and the A. Owens; said that if be found plainant to be due and anything J. to said A. Owens said payable J. offers same; accounting, your complainant pay defendant, Owens compelled reconvey said lands and interest in lands to suf- your complainant ficient and deed of fee, and to account proper conveyance for the your complainant personal proceeds prop- erties and effects so received from and that your complainant; have all such other, further and re- your complainant general lief in the the as nature of his case or premises may require, seem shall meet.” equity

In his answer the defendant con- denied the allegations tained in the bill and averred that the deed was executed by for the his the of entire in- transferring plaintiff purpose $5,000, in the which terest estate for cash consideration of he of the to the execution and paid plaintiff prior delivery deed. evidence, consideration of the all of which

Upon the bill and the trial court dismissed taken by depositions, defendant, final for the entered judg- judgment we ment awarded this plaintiff appeal. $5,000 testified that the

In plaintiff paid deposition, defendant in satisfaction of debts was only by plaintiff’s and that defendant for the prom- partial payment in the estate to settle the remainder of his interest ised as ad- final was made defendant as soon as settlement by and contends adheres to this ministrator. Plaintiff position “so him, was received that the consideration of by the as to warrant and unconscionable grossly inadequate 969 the the court confidential seizing relationship vendor, the the and deceit fraud parties, oppression extent and to disclose the failure of vendee him, and effects received value of being by properties that the and the conditions it certain existing making parties not deal did on terms equality.”

Had the defendant the trial court objected plain- tiff’s conform of the evidence did not allegations he have with bill could compelled allege plaintiff more exactness the of his claim. This the defendant grounds the evidence do, did not elected to meet the but introduced; and he stated in his brief: “The sole question at issue is whether the sale to the appellee appellant fraud, was induced either actual constructive.” There- or can in this fore he not now if evidence complain shows that the relief should prayed equitable proceeding Rule 1:8. See granted. 20, 1950, S. Owens died intestate When H. on July wife, Owens, he was Laura then 75 survived years Owens, old, old, sons, two W. then 53 C. plaintiff, years At Owens, old. defendant, then years in Russell one time his death owned two farms county, Home which was known as the Farm containing known the Mountain Farm acres and other containing 119 acres. testified

Three land owners residing community $200, Farm was worth $300 $400 that the Home per the Mountain were familiar with two who acre; from acre. $50 $60 that it was worth Farm testified per case, this Unlike most of evidence testimony for the made uncontradicted but counsel defendant not only it, that such evi- to contradict no effort merely objecting cause, issue in this was not “material dence value irrelevant, and inadmissible.” immaterial is wholly are uncontradicted evidence we war- this the basis of On acre as the value of $300 ranted in per approximate accepting Farm, acre Mountain on the Farm and $55 Home per $38,645 or as the total value real Thus property. one half in the interest real was plaintiff’s $19,322.50, worth to the dower interest of his 75 subject old mother. year

The total value of the hands of personal property defendant-administrator was approximately shown evidence, his settlement of accounts and which identified certain items not included in inventory n of the estate. Hence one third interest plaintiff’s $7,333.33, amounted to and personal property approximately his interest in $26,- his father’s estate totaled approximately 655.83, dower his interest of mother. subject only

The record discloses that divorce from after his shortly his first wife in 1938 or the State left and plaintiff remained out of direct communication his with family until his father’s death in 1950. Before Virginia leaving he had become indebted and there- Virginia shortly heavily after had been indicted his name for father’s to cer- forging $1,200. tain instruments negotiable totaling absence from the State defendant During plaintiff’s lived either home with his at the his or close parents wife, he from whom some divorced time prior death of his He and father. worked with his father about four death exercised ex- his father’s years prior his clusive affairs. control over 26th, 25th word of On or received July 28, 1950 he death and before father’s July daybreak testified at the arrived home of defendant parents. ar- immediately what occurred plaintiff’s concerning while, and he sir, came in talked to us a “Well, rival: and went he was and wanted some rest said out up given we reck- if down. He wanted to know and laid room my this indebted- these indictments we could fix oned up * * * I asked me if it. He a clean slate of his and ness of get see what and check into come to Lebanon would to see the Commonwealth’s him and indebtedness against Bank, Mr. also representative Attorney, Joe Duff, off, see about this and if would with- to they paying and make him free.” draw indictments this went to Lebanon As result of conversation defendant that that it his return day reported plaintiff $3,000 would take to outstanding approximately satisfy asked defendant to a demand note plaintiff sign payable him in the $14,730, amount of the amount which plaintiff said he and defendant had was the balance due for agreed his share of the estate. The defendant refused to sign note because, he testified, as was in full and com- of the entire interest of the plete payment estate. Thereafter the plaintiff instituted this suit. The circumstances under which a person conveys prop- for a small fraction of its value should be ex- erty carefully cases, amined in all and when, so as there is here, especially a between It is well set- fiduciary relationship parties. tled, as stated, that: “The recently personal representative of a decedent holds a of trust and He confidence. position is ‘deemed a trustee, a trust exercising continuing ” and distributees of his decedent’s estate.’ Virginia legatees Trust 433, Co. v. Evans, 425, (2d) 193 Va. 69 S. E. 409. be where the trustee pur principles applied chases the from the are settled trust beneficiary property These of overwhelming weight authority. by principles § 958d, are stated in 3 Pomeroy Equity Jurisprudence, (5th 1941), 814 ed. thus: p. cestui even trust,

“A a trustee from his que purchase by or without undue for a fair and advantage, any price ob- which the trustee between them other transaction by aside on voidable, and will be set benefit, a is tains generally voidable is at behalf least prima beneficiary; facie stated. mere thus facts upon that a rule of is, however, “There no equity imperative in- is between the transaction every necessarily, parties overcome the trustee to It stance, voidable. possible show, can If trustee invalidity. presumption evidence, that the and beneficiary, convincing unimpeachable sui under- full information and juris, being complete and all facts standing concerning itself, transaction and the with he was whom dealing, person consent, and a free and that the gave perfectly price paid was fair and he made to the beneficiary adequate, the knowl- honest disclosure of all perfectly complete or information edge concerning property possessed have himself, or which with reasonable might, diligence, and that he no undue or has obtained inequitable possessed, if it the beneficiary advantage, especially appears acted information in the transaction independent and advice some third intelligent competent person, be advice, such then the transaction will sustained give court of with This language quoted equity.” approval Branch v. 109 Va. S. E. Buckley, applied “* * the law of trusts is better *‘Nothing fiduciary allowed settled than that the trustee shall not be to advantage shall with the trust estate. He himself dealings to serve himself under allowed serving pretense cestui trust. most usual which evasions The que way rule are is of of this attempted purchases salutary ” * * the interest of the trustee. or in trust estate by 751, 759, 152 v. Trust Va. Co., 154 Virginia Swineford L., from R. C. at 1325. 350, 353, E. 26 S. page quoting 343, 633, 368, (2d) 6 E. Va. S. Kable, Rowland v. 174 In court, for the said: “In Mr. speaking Spratley, Justice 807, 817, the 647, 615, 153 S. E. Va. v. 154 Grimes, Waddy is distinction to thus: ‘There .a rule is stated between transactions made between occurring directly those transactions trust, cestui and his que trustee the trust with himself in deals trustee which the respect are voidable transactions class of The latter estate. or reason election without trust at his any que giving

cestui of or fraud, or advantage inadequacy price. alleging any trust, que with the cestui deals the trustee where But directly election at the of. voidable not ipso the transaction facto 974

the cestui que trust; but prima to be in- only presumed facie ” valid, which be rebutted.’ presumption may Courts cannot one relieve of the aof con- consequences tract because it was unwise. are merely “They guard- ians in at but general where people large, inadequacy is such as to shock their price conscience is alert equity to seize circumstance indicative fraud, slightest either actual or constructive.” v. 193 Seymour, Va. Jackson 735, 741, 71 E.S. (2d) 181, 185, from Planters Nat. quoting Bank v. Co., 166, 173-4, 216, 166 Va. S. E. 219. 184 Heflin See also 8 § Michie’s Jur., 86, Executors and Administrators, 200; 16 Michie’s Rescission, Cancellation and Ref- p. Jur., § ormation, 14, 145; 33 S., C. and Adminis- Executors p. J. § trators, § 240, 1246; S., Fraud, 37 C. 2(c)(2), 213. p. p. For additional decisions in Virginia principles ap to this case been or Bresee have discussed see plicable applied, 331, v. v. Bradfield, 99 Va. 38 S. E. Bowles 196; Bowles, 141 35, Va. E. 49; 126 S. Broaddus v. 727, 144 Va. Broaddus, also, 130 E. See S. Lile’s Notes on Equity Jurispru 21 Am. dence, 137; Administrators, Executors and Jur., p. § 737; on pp. Pomeroy Equity Jurisprudence, § 956, ed. (5th 1941). p. contends that made the initial defendant plaintiff $5,000, that he knew

offer sell suggested price estate, the value of the or had of knowing opportunity was he sold with full what and that knowledge doing. hand, the deed was contends, the other Plaintiff estate on its face to facilitate made absolute settling be an that there would understood that'it was accounting whether was settled. after the estate Regardless estate interest in the to sell his made the initial offer that there an there was whether or understanding settled, estate after be an would accounting estate and such of the administrator defendant to that trustee the of was beneficiary. to relationship plaintiff intestate descends of an the that real It is true property ad- of an the hands and does not his heirs through pass ministrator, in of held the but view the superior position by the he case, defendant circumstances of this under occupies a with both to the fiduciary respect personalty relationship the and the In event the result is same. realty. transaction, invalid, in and prima presumed facie order casts the de- to rebut the presumption, equity fendant the burden of that he made proving affirmatively and disclosure all an honest plaintiff complete him information and concerning property possessed that the fair and he ob- and that price paid adequate tained no undue or advantage. inequitable be

Whatever the conflict in evidence on other may Owens, there is none to the fact that A. while as points, estate, as his father’s received con- administrator of acting his brother, the entire interest of heir and an veyance distributee, in real both estate personal property owned their father for consideration which was less than the interest his brother the personal property above, As that the alone. stated evidence shows clearly defendant was worth more than five obtained by property his times for it. He brief that his what admits paid real at the time of his death owned worth father property $11,500. $30,000 These worth fig- personal evidence, but even substantiated ures are in no wise interest true, total be if plaintiff’s they accepted interest dower $18,333.33, would be the estate subject settlement of final The defendant’s mother. $15,435.26 own estate shows amounting receipts listed, cattle was that worth of shows testimony articles of omitted to several other addition personal prop- used in the the values that some of also It erty. appears 2233 bales of instance, inaccurate, are hay appraisal at $457.85. harvest were which cost only $349 appraised the consideration from the Aside gross inadequacy been, for the attached estate had evidence shows was executed the deed the time at debts of interest of it inferred reasonably may both the and defendant to plaintiff estate from in- keep volvement in law suits, and therefore the contention of the that the deed was made plaintiff to facilitate settlement of the estate is more than the contention of defend- plausible ant. Furthermore, the defendant had his father’s managed affairs, even his checks, for four signed to his years prior death and had full and all complete knowledge prop- while the erty, had been out State for more plaintiff than ten Yet, there is no evidence that the defendant years. ever made a full and disclosure of the value of complete the estate who his arrival was plaintiff, primarily interested in his debts and “if would paying seeing they withdraw the indictments free,” and make him as stated by the defendant. For defendant testified that example, plaintiff knew that bonds, their father some “but I government wouldn’t I whether told him the exact amount or not.” say He was further asked whether made in- plaintiff of the livestock his father and he re- owned vestigation “Well, I told him. We went on the and I told plied, place course, him. Of I don’t he know—the knew only thing him, what I told I far I know.” In addition, was so guess, did it is that on the Mountain go undisputed the cattle were the three where Farm during days plaintiff deed. execution of the in Russell county prior value had full information of the the defendant Although share in the that the estate personal plaintiff’s alone obligations satisfy pressing ample broth- information to his he disclosed this never of plaintiff, a deed to the himself and took instead, er; but kept he invalid, and inheritance, a transaction whole presumed that this failed to rebut showing has presumption utterly facts all material full disclosure made a was fair adequate paid price possession; of the undue or no he obtained advantage inequitable plaintiff. re- trial court is the decree of stated the reasons For Owens set Owens to W. C. deed from versed, J. .aside and annulled, and the case remanded with directions that A. Owens be to account for W. C. Owens’ required interest in the of H. S. Owens’ estate. personal property

Reversed and remanded. J., concurring. Eggleston, Spratley

Hudgins, C.J., JJ., dissenting. and Whittle, J., concurring. Eggleston, I concur of the that the holding majority opinion

n conveyance W. C. Owens to A. Owens of the by J. interest in his father’s estate should be grantor’s set aside on the of consideration ground gross inadequacy amounting to constructive fraud. It is uncontradicted Owens, that the while grantee, as administrator estate, father’s received con- .acting of the entire brother, interest of his Owens, W. C. veyance an heir and distributee, in both the and real personal property (cid:127)estate father, owned their the $5,000. sum of It by ap- from a fair of the evidence that the pears reading grantor’s interest in the estate was worth about personal that his interest the real estate was worth more than :$10,000. out,

As both the dissenting point opinions the bill of the absolute on its deed, complaint alleged face, was intended as a to secure liabilities which mortgage the had incurred on behalf of and that grantee grantor, taking upon depositions grantor, plaintiff, of the deed and attacked the changed validity position on the additional ground gross inadequacy price n constructivefraud.

In his brief filed this Court appellee grantee says: deed, ad- “In his to attack the effort validity appellant deed was intended vanced viz: that the (1) two positions, aas mere encumbrance to secure of certain payment and, him; (2) indebtedness that the consideration owing was so amount to paid by appellee grossly inadequate a constructive fraud brief appellant.” appellee’s then states that the first “has been abandoned point little, because if evidence was offered in appellant very any, of such contention.” The brief thus support points up on this only question presented appeal: “The Issue Involved “The 'sole at issue whether sale question fraud, either actual was induced by appellant appellee or constructive.” should that the decree

There is no contention by appellee raised in the be affirmed on dissenting grounds opinion, because of of the (1) that an avoidance conveyance namely, of the not within the fraud was constructive scope pleadings case court; (2) that the and was not before appellant’s which he is different from attempted appeal court. make out lower un- briefs, both

As I read the record clearly parties heard and case had been which the issue derstood the de- was to be issue lower court and what decided in the is view that It termined on opinion majority my appeal. to us. was submitted which decides issue correctly J., dissenting Whittle, re- with find no fault

I principles general equitable My cited in opinion. concluding portion to the are that these foreign entirely principles position a answer, and, large degree in the bill case presented and con- case constructed new are applicable in first time sidered for opinion. us as disclosed before pleadings case The properly and A. C. Owens W. difficult. is not

and relevant J. proof two These Owens, deceásed. S.H. sons of were the Owens brothers and mother, their Laura Owens, the widow of the were deceased, his heirs at law when he died intestate only on 20, 1950. On 1950, W. C. Owens con- July July brother, to his Owens, A. his entire title and veyed right, J. interest in his father’s estate. On 9, 1951, November W. C. a in Owens filed bill Circuit Court of Russell “that County specifically alleging the said mentioned deed of conveyance, although appearing to be absolute on its face, was not intended such by and the Owens, said A. your but complainant J. thereof, understood and contrary expressly agreed between and the said A. Owens that your complainant J. the said title to said and effects were to be held properties the said A. Owens as a for the $5,000 * * * security J. * * * Owens had himself agreed obligate J. * * *” for as for surety your complainant. Thus a trust was in the bill. parol alleged the bill stated that A. Owens had received Continuing, J. funds from share of the estate with ample which complainant’s due him The repay by complainant. bill’s for relief was that, for the reasons as- prayer specific “A. Owens be signed, compelled reconvey J. said lands and interest in lands to your complainant by sufficient and fee”, deed in and to of conveyance proper account for the with bill concluded personal property. relief. prayer general Thus A. Owens was informed that W. C. Owens only J. deed, face, contended that the its absolute on although fact, Owens’) truth and executed for (A. trust protection. Lile,

Prof. (Lile’s work on Equity pleading equity § Ed., 61) (Meade), Practice Third Pleading p. follows: “The outlines the of the bill purpose equity of the bill is two-fold: state (1) To plaintiff’s purpose case for information the defendant the of preparation his of the court in defense; (2) of and for the information defendant is cause, the trial of the and to fix issues. The to note the his only supposed plaintiff’s grievances from statement them in the bill, and it is to case precise of thus stated, and that case to that the defendant can be only, to answer; and to the case so made evidence required must be and relief will confined; no does not that granted with accord the case as made in the substantially bill. Hence the counsel, of accurate importance knowledge, by case, his facts of law thereto, be- applicable fore he his undertakes to case in the form of the present author) bill.” (Italics those of This statement is in ac- cord with the rule. general “* * * * * * It is for have bills to necessary, equity such that defendant be distinctly degree certainty may the claim made him and of the nature of against informed of *” * * he (Italics is called on to answer. what supplied) § 218, S., 30 C. pp. Equity, J. bill, Owens, demanded in the filed his answer J. He made therein. denied allegation allegation mentioned deed of con averred “that said specifically intended to be on its face was so was absolute veyance Owens, and said W. C. and the such your respondent title of executed for transferring legal purpose re the said and to your complainant * ** issue thus On fee single simple; spondent called for strict A. Owens proof. joined, the burden effort to in an carry complainant, father’s in his his interest he knew that testified allegation, that un- $30,000”, and excess of “far in amounted estate for his interest sold he have would no circumstances der been and that in debt he was $5,000; that judgments with he him; that respondent arranged against lodged indebted- off this sum sufficient for stand pay surety with his brother request, ness; complied the sole saving executed the deed purpose harmless. brother not under- he did asked if he was cross-examination

On he to which it, replied: before deed stand signed “A. I can’t I or that did I didn’t. I won’t that I say say did. Mr. Duff read it to me.

“Q. You did it understand when he read it?

“A. I Mr. did. Duff read deed and I won’t state that I did or didn’t.

“Q. But did understand the deed you meaning when was it read? I

“A. knew was the deed. “Q- There is in this deed which he that nothing provides is to amount of all, at reconvey any you there? No,

“A. sir. n “Q. Did to Mr. Duff you explain your understanding with Mr. A. Owens? J. No, “A. sir.

“Q. didn’t Why you?

“A. There was no occasion to.

“Q. If were you only attempting put mortgage interest to secure the of some of in- your payment your debtedness, didn’t who why you explain attorney the deed that that was intention? prepared your “A. It wasn’t we asked Mr. Duff to only thing —the do was to make the is, deed. That we- didn’t explain him our or which we had en- agreement agreement tered into. That wasn’t into it at all with Mr. brought we Duff. All asked Mr. Duff to do was write the deed. “Q. You did tell Mr. Duff the $5,000.00 consideration was cash, did not? you I did.”

“A. This extent of relevant evidence complainant’s on the issue joined.

To refute contention, intro- complainant’s respondent duced his mother who testified that heard she complainant tell the he wanted the deed attorney convey- prepared brother, interest to had and that after the deed ing been recorded and com- returned home she asked they if he was satisfied with the deal, re-

plainant “Yes, mother, I am I satisfied. am well satisfied.” plied, Duff, also introduced E. who Respondent attorney, testified that had asked him to write the deed complainant his interest in his brother, father’s estate to his conveying him he had $5,000, sold same for and that he telling intended to his debts and Duff out pay get Virginia. stated that W. C. Owens understood deed before fully it and that an it was sale. signing outright He further testified he that off the debts paid judgment which included the an 1, 1950, note dated in the

respondent unsigned August amount $14,730, of which to be then claimed complainant the balance due him for his the He interest in estate. re- was to the note, quested respondent sign request refused. $14,730,

It will be the observed that the note plus the valua- deed, consideration in complainant’s placed tion on his share in the at estate, both real personal, $19,730.

In evidence, addition to the related citizens five prominent testified to the character his to good good respondent for truth and reputation veracity.

This was the case the and the on presented pleadings, related was the relevant evidence submitted testimony only to the issue made.

In order to establish a “the declara- trust in Virginia, parol

tion must be and must be estab- unequivocal explicit lished clear and Minor on Real by convincing proof.” § (Ribble), Ed., II, Second 1192, Volume Property, p. 1592; Brame v. 136 Va. E. Read, S. 117. Com- failed to the burden the plainant having carry imposed, chancellor dismissed the bill. properly

“An a bill of material matter and a direct allegation denial of that in the answer, or frame an issue allegation plea * * * If of fact. the defense introduced (or answer) by plea the the law issue case is truth the only good § S., 30 C. plea.” supplied) Equity, p. (Italics to his failure the burden of the on Sensing carry proof the case issue abandoned joined, complainant completely made to value of sought by pleadings prove transaction, the estate, trust inequity relationship and that between existing complain- parties, presumably indictments, virtue of ant was under duress by pending contended enabled he all of which respondent presently evidence, with him. Such unconscionable drive an bargain to the issue not being objected responsive joined, immaterial and inadmis- irrelevant, as “wholly respondent sible”. the defendant “Had

The objected says: opinion conform evidence did not court that in the trial plaintiff’s he could have the bill compelled allegations exactness more with grounds allege plaintiff meet elected to do, but the defendant did claim. This he stated introduced; and the evidence on the plaintiff the sale whether at issue is brief: ‘The sole question fraud, either induced appellee appellant can not now complain Therefore constructive.’ actual or shows that in this if the evidence proceeding equitable should be relief granted.” prayed not show does the case respondent record introduced”. the evidence meet “elected the that show repeated it does respondent On the contrary, made issue the by not relevant to evidence ly objected the He could do no more. the sole pleadings. Certainly issue to be on the appeal attempted presented by complainant was the constructive fraud case—but was the this not case made in the trial court. in his brief that Respondent urges the “Attention of Court is directed to the fact that again contained in the bill of allegations complaint purport assail deed that it was intended alleged ground as a mere encumbrance, rather than a bona fide deed of and sale. this has been bargain aban Apparently, theory * * * doned .” appellant The continues: “Unlike most of the majority opinion evidence case, this was not uncon- testimony only tradicted but counsel for the defendant made effort no it, contradict that such evidence merely value objecting of was not ‘material to issue in this ir- cause, wholly ” immaterial relevant, and inadmissible.’ (Italics supplied) It was incumbent contradict upon respondent evidence on irrelevant matters. The value of complainant’s the land and other irrelevant as stressed in the testimony was not material issue and objections, “wholly irrelevant, It immaterial and inadmissible.” was impossible for to make his more respondent position plain.

The the case were taken before depositions notary and not in court. It is from the record obvious public open took full advantage attorney complainant this situation of irrelevant introduction testimony. of the is based complainant’s opinion upon is, contention, face”, that pointed up “change upon error, that the court should have held assignment $5,000 received consideration by complainant warrant and unconscionable as to “so inadequate grossly of the the confidential court seizing relationship deceit in vendor, fraud parties, oppression value the extent vendee to disclose the failure of the and the him, received and effects of the being properties did not that the certain conditions making parties existing terms deal on of equality”.

986 embraces the heart decision of the assignment and it a new case which learned majority, presents chancellor in the court below has never been called upon to decide.

The chancellor had no to consider evidence at vari right ance with the v. (2d) 64 N. E. Hayes, pleadings. Leffers 768, 327 Ill. v. First 440; Etc., Colp Baptist Church, App. 269, 67, 73, 260 Ill. N. affirmed 173 E. 341 Ill. 71 App. A. L. v. 106; Costlow, 259, R. 47 A. 354 Pa. (2d) Jones 31, (2d) v. Premium Cut 57 N. E. 245; Co., Medlinsky Beef v. York Ins. Co. 188 N. E. 25; 317 Mass. New Steinberg Life 152, Y. 263 N. 45. be

“The requires very object pleadings parties no therein, therefore contained confined the matters matters relating evidence will be considered except bill or in issue.” (Italics answer and alleged supplied) § v. C. C. 847; Drake, Andrews S., 444, 30 C. Equity, p. J. 35, S. Ct. 299 Mich., 767, Fed. denied 57 (2d) 83 Cert. 572, U. ed. 421. S. 81 L. in a law, the at

“In the rule accord with proof governing must conform or suit pleadings, correspond equity the case made succeed, all, if at must ¡for § 445, S., 30 C. p. Equity, pleadings.” liberal should be are and Courts permitting equity “* * * Leave to 2:12 bills. Rule amendments to provides: of the ends in furtherance granted shall liberally amend Plead- Lile’s see (But (Italics Equity supplied) justice.” was 84) amendment § No Practice, 147, 83, ing pp. the issue and therefore in this instarice presented sought filed. answer as the bill originally circumscribed by to assume undertakes jurisdiction Evidently But relief. for case under general new over the prayer con- not a case embrace intended to never such prayer bill. templated * “* * under not general court will (T)he grant * * * asserted rests on grounds relief prayer the 227, § Am. Jur., 19 pp. Equity, (Italics bill.” supplied)

987 181, Williams v. 182; 529, 107 U. Jackson, 478, S. 27 L. ed. 814; S. Ct. v. English Foxall, 595, Pet. 7 L. ed. (U. S.) v. 531; Vila Grand etc. Island, Co., 222, 68 Neb. 94 N. W. 136, 97 N. W. 613, 63 L. R. A. 110 Am. St. Rep.

4 Ann. Cas. 59.

“Under the relief, the court general prayer may grant relief to which the material facts and circumstances put in issue by the bill, and sustained entitle the proofs, But such relief must be consistent with the case plaintiff. made.” § Lile’s and Practice, 118, supra, Equity Pleading 70, McGowan v. Parish (D. C.) 237 285, U. S. p. citing 543, 35 S. 955; Ct. 59 ed. Hurt v. 341, L. 75 Va. Jones, 352; olk v. 182, 113 Va. Graves, 69 S. E. affirmed Woolf on 113 Va. 73 E. S. 721. rehearing Hiern In v. 13 Ves. R. Mill, (cited 114 in 1 Dan. Ch. Prac. 380) Lord Eldon said: “The the bill rule is that if contains material, facts issue charges, in that are putting is entitled to relief which those facts will sus tain, under the but he cannot desert the general prayer, relief specific and under ask .the prayed, general prayer relief of another unless the facts and cir specific description, cumstances the bill will, charged by with the consistently rules court, of that relief.” (Italics maintain supplied).

“The test of the relief to be is the case granted case in the bill which the proved, but the stated issue is made Hurt v. up.” Jones, Va., at supra, p. Practice, to Lile’s

Again referring Equity Pleading 1: Chapter be better understood

“Equity procedure may through of the and a conviction of the knowledge purpose, necessity of fixed rules and methods all proceedings. judicial has thus the function and Judge Story admirably expressed these his classic treatise of rules in operation Equity Pleadings: “' in of ‘It obvious that every system jurisprudence pro- for the due administration to of fessing provide public must be established forms some proceeding justice, the matters between the who bring controversy parties interested are therein before tribunal which are they be And for the sake of the adjudicated. dispatch business, well as for its due with reference arrangement suitors, conveniences of all the rights many reg- ulations must be order, induce ac- adopted certainty, '* * * in these curacy uniformity proceedings. “ * * * 'Indeed, there are rules founded altogether many in artificial but which nevertheless be af- reasoning, may firmed, with few exceptions, greatly promotive If, and subservient to convenience. public justice private there, here and them an work or apparent hardship mischief, will, examination, on close be found they also much and in this general good; accomplish permanent of the all rules, partake infirmity general respect they only must, cases, rise to some give particular inequalities ” and shut out individual some (Story’s equities rights.’ §§ 1, 2.) Eq. Pleading, Hurt v. Jones, Burks’

Paraphrasing Judge opinion bill, is not the whole Va., 351), at there (75 supra, p. end, allusion to or the remotest from beginning be- of a the faintest intimation existing fiduciary relationship it or intimated tween nowhere is the suggested parties, the of construc- be revoked that the deed should on ground established. The sole issue to be tive fraud thus sought as executed was whether the deed raised pleadings save harmless to W. C. Owens security respondent claimed absolute deed as or an alleged by complainant, respondent. which the all the indulgences

Extending complainant warrant, it would of this liberal rules most day practice a total without plainest disregard is impossible, him the special essential grant most pleading, principles as now reasons on based relief requested, presently true, might even complainant is This though signed. ex we case, which on ain relief to such proper entitled 989 no as such case a has never- been press opinion, developed nor decided in the court below. court

“No can base its decree facts not upon alleged, nor render its however meritorious, judgment upon right, which has not been claimed.” Potts v. Mathie- pleaded son Alkali 196, 165 Works, 207, Va. 181 S. 521, E. 525; Patterson v. 569, Anderson, 557, 194 Va. (2d) 195, 74 S. E. 203.

The decision is based untried an case upon of constructive fraud which was never involving type but pleaded presumably practiced upon complainant by The bill nowhere fraud, such and “since respondent. alleges fraud is never it must be distinctly and presumed equity in a specifically bill relief on that charged seeking ground.” (Italics § S., 30 C. 225, supplied) Equity, p.

I see no into merits case necessity going considered in the have no We majority opinion. right .surmise as to how this constructive fraud case would have such in his bill. developed alleged complainant properly We have no means of how would have knowing respondent answered such an if nor do we allegation properly pleaded, know how the issue on thus made would have de proof Suffice toit case no such veloped. say presented and, chancellor in court below as I conceive our it is our decide construct and it duty, beyond province here.

We said Etc. Ins. v. Co. Liverpool, Bolling, Va. 194, 10 518, S. E. is an (2d) court, 523: “This appellate and on we hear cases appeal upon theory they were is tried the court below. The case there made case we hear appeal.” in Mar v. bury Madison, Chief Marshall said Justice

Cranch “It the essential criterion of 175: appellate revises corrects in a jurisdiction, proceedings * * *” instituted, and create that cause. cause does not already (Italics supplied)

990 73, 74, Warren v. Va. 24 Buchanan, Warren, 93 in

Judge 913, S. E. said: as made in

“The fall the case must stand or parties upon is not a in (the trial) An court court. appellate forum which to make a new case. to It is court review merely or not the whether determine rulings judgment the case made below there were correct. court upon Any rule, said, has all con other been well would overturn just law, in cases at and would ceptions appellate procedure de novo, in an such action a trial result making .in appeal * ** the means errors and omissions.” without of correcting v. C. & R. See also O. (Italics Co., supplied) Jackson 489, (2d) Va. S. E. filed, extricate the

The in an effort to concurring opinion also from its rather position, attempts majority hapless This the case submitted the trial court. in ignore opinion case the admission that concurs with the majority as- there tried failed. But the concurring opinion utterly understood record, both serts: “As I read the clearly parties had and decided issue which the case been heard be determined on court and what issue lower ap- in the face of this untenable Such conclusion is peal.” record. Owens, vigorously protested respondent, in- evidence admission of the irrelevant objected con- did not before the

troduced notary attempt and imma- that it was irrelevant same for reason trovert is terial to the issue This conceded majority joined. opinion. us, re-

Furthermore, brief filed with in his respondent W. C. Owens fact that calls our attention peatedly at- the bill and is thus case abandoned the has alleged a new case to try appeal. tempting for not critical of respondent opinion before evidence taken the irrelevant notary meeting him as- condemn now seeks to the concurring opinion brother. that he has defrauded in his brief serting Both seek “Halo of around opinions place Equity” the head of Such, I fits think, the brow complainant. hardly of this from who nowhere fugitive justice attempts deny that he a fraud deliberately attempted perpetrate when he to him under respondent conveyed that he was unmarried, thus representation leaving same to his wife’s dower interest. The no- subject where undertakes wash his “unclean hands.” the record made I feel that the chancellor was

Upon pow- erless to do other than dismiss the bill. C.J.,

.Hudgins, J., join Spratuey, this dissent. him if notes claims and that against allegedly forged were Commonwealth’s willing upon Attorney paid, a nolle be entered. of costs move that prosequi to payment $3,000, Plaintiff then a note for endorsed de- signed fendant, which was at the and the bank negotiated proceeds his to debts. Thereafter it applied developed approxi- $2,000 full all more would mately required pay It was after this interest costs. obligations, including 31, 1950, fact became on known July plaintiff, a deed its face delivered absolute on signed conveying $5,000, defendant all his for consideration of title and ex- interest in father’s right, property. Upon $2,000 ecution of the in cash delivered an at- deed, and the defendant assumed creditors of torney plaintiff $3,000. note of All but about $300 earlier ob- was used the balance of plaintiff’s pay not dismissed The indictments him were ligations. against the deed the Commonwealth’s to the execution of but prior that a be entered to move nolle prosequi Attorney agreed of until were not so of costs. They disposed upon payment 15th. following September arrived in time the Virginia July By plaintiff been defendant, had who 1950, his creditors had notified estate on of his father’s administrator July appointed of suit institution were 1950, that they contemplating of the estate. share claims their enforce against plaintiff’s because were- safe testified that his clients An attorney attached we “owned already plaintiff far as were so debts, about our was no doubt and there they concerned.” from leave five been days Plaintiff having granted only deed after the for his home Indiana, left work shortly was executed. The did not discuss the parties again subject until after the defendant made his final settlement of the estate, when asked defendant to see a of the copy of the estate. The evidence as to what appraisal occurred at that time is in conflict, but it is admitted that sharp

Notes

notes which been complainant that indicted; he secured from the Commonwealth’s attor- a indictments; to nolle he that pros ney promise ques- tioned as and told that marital status complainant he unmarried, and the deed was accordingly. prepared that death his Owens testified after his father’s came been Indiana; brother home from that he had away from since that he left there 1940; when Virginia Virginia were him that several indictments against charging pending $1200; he had his father’s name to forged notes'aggregating that he he children when left left his wife and two Virginia he a that divorce; Russell and later obtained County the deed that learned after the .recordation complainant that 1943; had married wife immediately May, present asked his return to complainant respondent Virginia be done about the indictments what could judgments consulted Mr. Duff him; that against pending at respondent informed that the attorney request complainant; $3,000 clear at least him that it would judg- require com- endorsed 28, 1950, that on ments; July respondent that bank; at the $3,000 and note for negotiated plainant’s Mr. Duff the note to delivered the proceeds complainant that Duff indebtedness; who it to complainant’s applied would the indictments secured an agreement whereby nolle prossed. he had after that testified arranged further Respondent and had secured debts for the complainant’s payment that the indictments nolle would be he re promise prossed remain in order that quested complainant Virginia they the farm might operate jointly; complainant’s response to this was: I wouldn’t around here request “Jennings, stay here at all and be sneered at and flouted among the-people around I them. have I am got good job going back to it, and I would love to sell interest in it (the my that he estate)”; to sell him $5,000 offered his interest for and he he offer; that obtained sum of accepted $2,000 a further loan and it to who paid complainant used itof of his part complete obligations; payment that the note of was assumed and complainant’s paid sum, and that this $2,000, consti by respondent, plus tuted the $5,000 consideration mentioned in the deed. testified that he his brother’s in- Respondent purchased terest at named outright price by complainant; at no time was there trust mention agreement He further testified that after the deed had been alleged. Indiana, recorded returned to and while he complainant made several visits back he did not mention the Virginia, transaction October, 1951, until at time presented

Case Details

Case Name: Owens v. Owens

Court Name: Supreme Court of Virginia

Date Published: Mar 7, 1955

Citation: 86 S.E.2d 181

Docket Number: Record 4292

Court Abbreviation: Va.