Powers v. Long

131 Va. 284 | Va. | 1921

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The whole case for the appellees turns upon the following question:

1. Is the parol declaration of trust relied upon by appellees in this case shown to “be unequivocal and explicit and established by clear and convincing testimony?”

The question must be answered in the negative.

That the standard of proof required to establish a parol trust, in real estate is that stated in the question is well settled. Fleener v. Hensley, 121 Va. 367, 93 S. E. 582: Taylor v. Delaney, 118 Va. 203, 86 S. E. 831.

In the case before us the proof is neither clear nor con" vincing that there was any declaration of trust at the time of or. prior to the execution and delivery of the deed of 1898 from-W. S. Powers, the father, to his son, the appellant. The: evidence it is true, very clearly shows that there was no consideration at the time for the deed of 1898 and that the father some nine or ten years after 1898 decided to sell a portion of the land claimed by appellees to appellant and to give the residue of the tract, which is especially drawn in question in this suit, to the other children; but the preponderance of the evidence, as we think, establishes that the father did not himself decide to make these gifts until long after 1898, to-wit, shortly before or at the times the appellant made the respective deeds of land to the other children, in accordance with the requests of the father, made from time to time after 1898 that he should do so.

The only reason given by the father in his testimony for the making of the deed of 1898 in question is stated in his testimony as follows:

“One reason was at the time I was in bad health and did not know what was going to happen.”

This statement, along with the absence of any testimony, even of the father, of any “unequivocal and explicit” declaration of trust until after 1898, and the total absence of any other evidence from any other source of any declaration of trust whatsoever having been made by the father until long after 1898, convinces us that the father made no declaration creating any trust until after the deed of 1898 was delivered and had vested in the appellant the absolute title to all of the land thereby conveyed. It is unnecessary for us to decide whether the prime motive for the making of the conveyance by the father was to shield the land from the chance of its being sold to pay his debts; for, whether that is true or not, the testimony, even of the maker of the deed, does not go any further than to show that he made a voluntary conveyance to the son of all the land he then owned, (three tracts, containing some 321 acres), because he (the grantor) “was in bad health and did not know what was going to happen,” depending upon the son to afterwards “make certain conveyances according to our agreements,” without stating explicitly or unequivocally what those agreements (or “contracts” as he calls them in another place) were; with his 'Own statement excepting, as of 1898, ten acres from the alleged trust, which the evidence in the case clearly shows was not mentioned between him and the son until nine or ten years afterwards; with his first statement showing that there was no actual decision made by the donor to give any of the land to the children until the deeds were made to them, which were made after 1898; with his subsequent statement, made' in answer to a leading question, to the effect that the division was made in 1898, left in a most general, vague, and unexplicit form, contradicted in part by his own subsequent statements, and wholly contradicted by the other evidence in the case showing that no division or designation of boundaries of the land given to the children was ever made until long after 1898. This evidence in effect shows, as we think, that there was in truth no gift to these children until the deeds to them were made, long after 1898, as aforesaid. Such gifts were, of course, necessarily subject to the absolute conveyance which had been made to the appellant-in 1898 and dependent for their going into effect upon the assent of the appellant thereto and his voluntary execution of conveyances putting the same into effect-

Other circumstances shown in the statement preceding this opinion tend strongly to confirm the conclusion just stated, but it is unnecessary to recapitulate them here. What has been said is sufficient to show our reasons for holding, as we do, that the proof in the cause fails to establish the parol trust sought to be set up by the bill of the appellees in this cause.

It follows that there is no merit in the cross assignment of error of appellees, with respect to the provisions of the decree under review, holding that the appellant is entitled to hold the ten acres of land therein mentioned; but, as there is error in the decree in so far as it holds that the appellant should make any further conveyance of land to the appellees, we will enter our decree reversing the decree under review in that particular, and dismissing the bill, at the costs of the appellees.

Reversed and dismissed.