59 W. Va. 106 | W. Va. | 1906
James Reel filed a bill in equity in the circuit court of Randolph county against William C. Reel and Andrew Fansler, setting up that he was over fifty-one years of age and until the winter of 1903 had lived with his father and mother on the farm; that his mother was dead, and one of two sisters was dead, and the other was the wife of Andrew
Equity jurisdiction is denied because, on the theory of the bill, that the deed to James Reel was perfected by delivery, he could sue in ejectment, and being out of possession must sue at law and not in equity to remove a cloud, citing Smith v. O'Keefe, 43 W. Va. 172. If we held that the deed to James Reel was consummated by delivery, we must needs decide the question whether one holding legal title out of possession can sue in equity to remove a cloud arising from a second deed by the same grantor, taken with knowledge of the first; but we are of the opinion said deed was not perfected by delivery, which is an indispensable element in the elementary definition of a deed. Therefore, we have a suit in equity by one claiming to have first an oral contract for the conveyance of land by a father to a son on consideration of work and labor at home for the support of the father and his family, and then the contract evidenced by a deed executed in all respects except by delivery, and the bill seeking enforcement of such contract as against the father, or the right to enforce involved in the suit as a necessary element and seeking to annul a deed accepted by another person from the same vendor for the same land, with notice of the right of him claiming under such contract, and seeking its cancellation, or to compel him to pass the legal title by deed. I suppose it would be immaterial whether a decree of relief be to enforce the contract by compelling a deed from the father and cancelling the deed to Fansler, or compelling Fansler to pass the legal title to James Reel — the latter being the more usual mode of decree, simply treating him as holding title as a gttasi trustee for James Reel. Surely, this state of facts presents a case of equity jurisdiction of frequent occurrence. Equity follows the legal title into the hands of its fraudulent holder, and makes him hold that title as held in trust, and compels him to execute the trust by conveyance. Davis v. Settler, 43 W. Va. 17. He takes the shoes of the vendor, and equity will make him do what it would have made the vendor do. 1 Beach, Mod.Eq. section 346; 2 Pomeroy, Eq.,
Though I think it contrary to the weight of authority, yet under Bowles v. Woodson, 6 Grat. 78, and Parrill v. McKinley, 9 Id. 1, the undelivered deed would be good as a memorandum to answer the demand of the statute of frauds that a contract for sale of land be in writing, and we would have to say whether the mere ora.1 contract would be enough. For myself I do not see why it is not just as requisite that the memorandum of the sale contract be delivered as that a deed be, and so I think say the authorities. But I concede that these cases eliminate the question of a writing. As we find that James Reel refused to accept the deed, repudiated 'it, it might be said that he would fall back on his oral contract. No, because refusing to support his father, renouncing the contract, authorizing Fansler to assume the burden of his father’s support, and take a conveyance, would operate to repudiate also the oral contract, and estop James Reel from claiming against Fansler. I am, however, • free to say, that the oral agreement is not enforceable by specific performance, as it was not executed by a transfer of possession. There was no change as to possession. The contract was not to take effect by possession until the father’s death. The father remained in possession. Harrison v. Harrison, 36 W. Va. 556; Ratliff v. Somers, 55 W. Va. 30. As the oral contract is not good, James Reel can have no right as against his father. Nor can he against Fansler, so far as that oral contract goes; for there was nothing in it5 no vested right under it, with which to affect Fansler with notice. Central Land Co. v. Laidley, 32 W. Va. 134.
A deciding question in the case is, Was that deed delivered to James Reel? If so, it passed title, though not recorded, and Fansler having notice of it, would take no title by his deed. On the other hand, if that deed was not delivered, James Reel got no title, and Fansler took good title. This turns on evidence, and we cannot, ought not, enter into details. The father seems to be an intelligent, plain country man, of seventy-eight years. He swears that he talked several years of deeding the land to his son, and had a deed drawn and acknowledged, brought it home and said, “Says I to Jim here is the deed, and patted my hand on the deed, and says I it is no account to you till you take it and get it record
As to the claim for a lien on the land for work and labor, I know of no law to create it, none is shown.
Decree reversed and bill dismissed.
Reversed a/nd Dismissed.