132 Va. 63 | Va. | 1922
after making the foregoing statement, delivered the following opinion of the court:
The controlling question presented for our decision on the appeal in this case is one of fact. The law on the subject is not in controversy.
The appellee seeks by parol evidence to correct an alleged mistake in a deed and to establish (a) a resulting trust, or (b) an express trust, in his favor, on the ground that the ap
In Taylor v. Delaney, the husband, Delaney, entered into negotiations with a land improvement company for the purchase of certain land. His wife attended to the payment of the purchase money, closing the purchase, and took the deed from the company in her name as sole grantee. The bill filed by the husband alleged that the purchase money was entirely furnished by him; that he directed his wife to have the property conveyed to nim and her jointly; and that as the conveyance was not so made she held the land in trust, one-half for herself and one-half for him, in fee.
“The doctrine generally, if not universally, recognized is that when a conveyance of real estate is made to one person, and the consideration paid by another, it is presumed that the party advancing the money intended a benefit to himself and accordingly a resulting .trust is raised in his behalf. But when the conveyance is taken to a wife or child, or to any other person for whom the purchaser is under an obligation to provide, no such presumption attaches'. On the contrary, the inference in such case is that the purchase was designed as an advancement to the person to whom the conveyance is made. It is, however, always a question of intention, and the trust in favor of the wife or child may be rebutted by parol proof, showing that the party intended the purchase for- his own benefit exclusively.”
The opinion in Taylor v. Delaney thereupon continues as follows:
*69 “In Deck v. Tablet, 41 W. Va. 332, 23 S. E. 721, 56 Am. St. Rep. 837, it is said that .‘a resulting trust does not arise in favor of a person who furnishes money with which to purchase property, the conveyance being taken in the name of another, if there is a legal and moral obligation on the part of the former to provide for the latter, as where the parties are wife or child of the person whose funds have been so employed. ' The presumption that under such circumstances no trust was intended is one of fact, and not of law, and may be rebutted by evidence of circumstances tending to show the existence of a trust. Declarations of a husband after the death of his wife are not sufficient to establish a resulting trust in his favor in land purchased and paid for by him and by his direction conveyed to her/ In a note to this case in 56 Am. St. Rep., at p. 843, it is said: ‘When a person making a purchase of land in the name of another and' paying the consideration himself is under a natural or moral obligation to provide for the person in whose name the conveyance is taken, no presumption of a resulting trust arises, but it will be regarded prima facie as an advancement for the benefit of the nominal purchaser/
“It is clear, therefore, upon the law, that no trust resulted to Delaney, even if it were conceded that he paid the purchase money, for the presumption would be that it was intended for the benefit of his wife. If, therefore, he prevails in this case it must be by proof of an express trust * * *.”
“In order to establish an express trust in real estate by parol evidence, the declaration must be unequivocal and explicit and established by clear and convincing testimony.”
In the instant case,' as in Taylor v. Delaney, no resulting trust in favor of the appellee arises from the fact that he
The controlling question of fact presented for our decision is, therefore, the following:
The question must be answered in the negative.
The testimony for appellant and appellee is in irreconcilable conflict and in such direct conflict on many material matters that one rises from repeated readings of it with the conviction that the testimony of either one party and family witnesses or of the other party and family witnesses is almost wholly unreliable, for the testimony on both sides about material facts, undoubtedly known to these parties and those witnesses, cannot be true. Which is to be believed?
The reliability of the testimony of the appellee and of his father and mother is seriously discredited by the omission from the allegations of the bill, although otherwise in much detail, and from the testimony of appellee and his father and mother, taken in the cause before appellant made any appearance therein, of all mention of the fact that appellant was present at the time or took any part in attending to the matter of closing the purchase and taking the .deed in question. In view of the high standing of counsel for appellee, we regard the allegations of the bill as containing the statement to counsel by appellee or his father, of the
As contrasted with this positive and detailed testimony of the three witnesses last named, it is developed by the proof introduced after the pleadings of appellant are filed, and is expressly admitted by appellee and his father in
This theory seems to us to be more in accord with the whole of the evidence in the case, which seems reliable, than any other.
The theory of the bill of appellee, that the draftsman of the deed from Mrs. Nuckolls and husband had the deed of trust before him and was thereby misled into inserting the name of appellant as one of the grantees in the deed of bargain and sale, is wholly without evidence to support it. In the first place, the whole tenor of the deed of trust manifests that it contemplated that the deed of bargain and sale would be made to appellee alone as grantee. In the second place, there is absolutely no evidence that the scrivener of the latter deed had the former before him. There is, indeed, no testimony in the case undertaking to say who this scrivener was. The original deed is shown to have been on the form of J. Thompson Brown and Company, and the only inference which is consistent with the' evidence is that the deed was drawn by some one in the office of J. Thompson Brown and Company, agents for Mrs. Nuckolls, the vendor. The deed was acknowledged by Mrs. Nuckolls and husband on May 2, 1912, before Edw.
The fact that the custom of the building and loan association (however universal according to Mr. Shafer’s testimony) , required the ¡appellant as well as appellee to sign the bond for the money borrowed of the association if she was to be joint grantee of the property; and the fact that the bond and deed of trust were drawn and signed as they were, are not circumstances inconsistent with the association in fact lending the money in this individual instance upon the bond and deed of trust as executed, because the association, before the money was actually loaned, was, as a matter of fact, through Mr. Loehr, informed that the property was in truth conveyed to appellant as a joint grantee, and also as a matter of fact made the loan notwithstanding, Mr. Lohr, secretary and treasurer of the association, acting in the matter for the association as well as a friend of J. A. Page, read the deed of bargain and sale as it was in fact executed before the money passed and approved of the deed and lent the money on the bond and deed of trust as they stood, as is shown by the testimony of J. A. Page himself. It seems plain that the bond and deed of trust were drawn by one scrivener upon the ¡assumption that the deed would be made to appellee alone, in accordance with the initial form of the purchase, and before the deed of bargain and sale was drawn. And that the deed of bargain and tóale was drawn at a later time, after appellant arrived in Richmond, by another scrivener, who did not have before him the bond or deed of trust.
J. A. Page does not anywhere in his depositions testify
It seems to us extremely improbable that the deed of bargain and sale would have included the name of appellant as grantee without the direction or knowledge and consent of J. A. Page at the time. He initiated the transaction in the name of appellee as the sole purchaser. He, as agent for appellee, had control of the whole transaction from the beginning to the close of it, by the paying over of the purchase money through his hands and the taking of the deed. Even if appellant had undertaken without his knowledge to direct that her name be included as grantee in the deed, of which there is no suggestion in the testimony anywhere, surely the grantors or their agents would not, under the circumstances, have acted in the premises without the direction or known assent of J. A. Page directly or through some one known to be acting for him.
Upon consideration of all the evidence in the case, we feel that some one must have directed Brown and Company to have appellant’s name included as grantee in the deed of bargain and sale. There is no evidence tending to show that appellant did this.
All the evidence in the case points to Mr. Loehr as the person who gave this direction to Brown and Company. The testimony of of J. A. Page shows that he entrusted this part of the transaction to Mr. Loehr. It is true that J. A. Page, as ¡aforesaid, denies that he gave any one the direction to have the deed of bargain and sale made to appellant as one of the grantees. But this is absolutely inconsistent with what he testifies was the conduct of Mr. Loehr when the
It is well settled that under such circumstances appellee is bound by such action, notice to and knowledge of J. A. Page, his agent. 2 Mechem on Agency (2nd ed.) sec. 1803, p. 1384; Easley v. Barksdale, 75 Va. 283.
Such view of the preponderance of the evidence on the controlling question of fact in the case, is strengthened by the consideration of the following matters.
The testimony of appellee is very positive that he never at any time during his married life contemplated buying a home in Richmond or of living there as his home, and that he bought the property in question solely as an investment. In a letter of his to appellant, however, dated January 28, 1912, filed in evidence, he says: “Now I got a nice letter from home; and they want us to come down there and buy a little home and live there. They want to sell there home and buy a nice place where they can have a big store and want us to take hold of it and see if we cannot be happy together. I think they know now they cannot separate us, and they know now that I love you, so they are willing to help us now. Write me at once and tell me just what you think and I will do as you say.”
In this quotation it will be also noticed that there is a reference to the father and mother of appellee wanting to sell their home. One of the grounds much urged as discrediting the testimony of appellant is that she testifies that at some previous time appellee proposed to buy a lot from his
Again: The testimony of the appellant and of her mother and sister is so full of many references to the fact that appellee continued to make frequent remittances to his father (once every two or three weeks or sometimes at intervals of as long as a month, during his married life, as testified to by appellee), against the remonstrances of appellant, and to the urging of appellant upon appellee of her wish that he would buy a home and take the title to it in their joint names, and to appellee’s sometimes agreeing to do so and sometimes refusing to do so, and of the part which this played in the alternate coolness and warmth of the marital relations of the appellant and appellee,—all of which is so in accord with human nature and naturally to be expected under the circumstances,—that we are impressed with the truth of much of this testimony of and for appellant. And yet, appellee, in his testimony, unqualifiedly denies that during his whole married life there was ever any talk between him and his wife on the subject of his buying a home and putting it in their joint names, or that there was ever even any conversation between them “in reference to purchasing any property for a home!” And these positive denials are repeated time and again by appellee in his testimony. This leaves an impression very unfavorable to the credibility of appellee’s testimony, especially as, in addition to the testimony of and for appellant on the subject, which seems to bear the indicia of truth, as aforesaid, and the letter above mentioned on the subject of buying a home in Richmond,
It is true that the fact that no express reference is found in the letters of appellee filed in evidence to any undertaking on his part to have the property in question, or any property, conveyed to his wife as joint grantee with himself, or to any conveyance to appellant, is a strong circumstance tending to show that no such intention ever existed; especially as appellant claimed to be able to produce letters containing such undertaking and failed to do so. But the correspondence in evidence, five letters from appellee to appellant and one from J. A. Page to appellee being introduced, is not inconsistent with the inferences we have above drawn as warranted by the preponderance of the evidence when the unreliability of the testimony of and for the appellee is considered.
However, even if we were mistaken in drawing the inferences aforesaid from the evidence, we cannot say that the appellee has established the fact that he directed the deed in question to be made to himself alone, by evidence which measures up to the legal standard required in such cases.
In view of this conclusion it is unnecessary for us to deal with a number of other circumstances in evidence, concerning occurrences following after the taking and the recordation of the deed of bargain and sale.
The decree under review will be set aside and annulled and we will enter our decree in favor of the appellant, on the ground that the appellee has failed to sustain the case alleged in his bill by that degree of proof which is required in such cases, and dismissing the suit, with costs to appellant.
Reversed, and final decree.