55 W. Va. 546 | W. Va. | 1904
Lead Opinion
David McConaughey executed his will by which he devised to his wife, Ann McConaughey, all of his real estate and personal property, giving her full control thereof and to receive all the proceeds or assets arising from the same and she to pay all just ■debts which he might owe at his death, and keep all the property free from encumbrances so long as she remained his widow, or until his youngest son, David McConaughey, Jr., should arrive at the age of thirty years, when if the said David, Jr. ■should be living he gave him one hundred acres of the farm on which testator lived, including the dwelling house and other improvements pertaining thereto, and, provided, that if his wife, Ann, so desired, she should remain with him, he to keep and provide for her thereafter during her natural life; and gave to his son Samuel one .hundred acres of land and $500, and to his sons Robert A. and James B. each one hundred acres of land, and bequeathed to ecah of his daughters, Martha L. Richardson, Sarah Ann Hogue, M. Virginia McConaughey, and Isabella F. McConaughey each $1,000, and stated that the said Mrs. Richardson had received the $1,000 intended for her. Which will Was dated the 10th day of April, 1874, and admitted to probate on
The defendants, Ann, David'W., Samuel D., Robert E., and, James P. McConaughey and Anna Pearl Hogue and Isabella F. Dean, tendered their demurrer to said bill because, among other things the bill does not allege that the agreement “upon a free and amicable partition” was in writing and signed by the parties made defendants and in consequence the terms of that agreement cannot be enforced under the Statute of Frauds; that the agreement could not be enforced against Anna Pearl Hogue, at any event even if it had been in writing and signed by her' guardian; that the exhibits are inconsistent with the allegations of the bill and taken together show that there is no equity in the bill; that there is no agreement or memorandum in writing of that agreement signed by Ann McConaughey agreeing to reconvey the property as alleged; that no time is alleged in which said reconveyance was to be made and that if Ann Mc-Conaughey was to retain a life estate in said property plaintiff could have no interest until after her death; that there is no averment in the bill of any agreement in writing that Ann Mc-Conaughey would execute any such conveyance or that she signed, acknowledged and delivered the deed alleged to have been written on February 18, 1889, and because the laches of plaintiff in setting up their pretended claims after the lapse of more than ten years is a complete bar to the same which bar defendants’ plead by way of analogy to the bar of the Statute of Limitations and also plead the Statute of Limitations of ten years to any such contract or agreement as that pretended to
It is insisted on the part of the appellees that the case comes • within the doctrine laid down in Troll v. Carter, 15 W. Va. 567, -while the appellants claim that it is clearly covered by the exceptions in said case set out, as stated in syllabus 2, to which the • rule is not properly applicable. Judge GREEN in delivering the • opinion of the Court in that case, says: “It is a general rule of ' evidence that parol testimony cannot be admitted to vary or add to a written contract, and especially a contract or deed conveying "lands,” and cites quite a number of authorities, which see on • jpage 576. And point 3, syllabus in that case, it is held: “If a party obtains a deed without any consideration upon a parol .agreement that he will hold the land in trust for the grantor, ■ such trust will not be enforced, as it would violate the Statute -•of Frauds and this general rule to permit parol evidence to es-
The conveyances made in case at bar, upon which the trust is-sought to be established, recite on their face, “That the parties-of the first part, in consideration of their natural love and affection for second party and for other good and valuable considerations moving them thereto, do grant,” etc. The grantee being-the mother of the grantors.
These deeds convey the property with general warranty, and it is not alleged in the bill that the conveyances were without consideration. In Troll v. Carter, cited, Judge G-eeeN cites Porter v. Hayfield, 9 Harris (21 Pa. St.) 214. “There are cases wherein trusts may be proved by oral testimony, but not in violation of" the rule that protects written agreements against such testimony. As a deed of conveyance is intended to define the relations between the parties to it, it is not contradicted when it is-shown that the vendee purchased in trust for a third person;.for such evidence only establishes a new and consistent relation. But evidence, that at the time of the conveyance the vendee, agreed to hold the title in trust for the vendor, is a flat contradiction of the written instrument executed by the parties as the ■ bond and evidence of their relation, and would make it void from its very inception. Oral testimony can have no such power. As between vendor and vendee such testimony cannot be heard to-change a title absolute on its face into a trust. It was, however, held in Lingenfelter v. Ritchey, 8 P. F. Smith (58 Pa. St.) 448, that parol evidence might be received to establish a trust in favor of the grantor. But the decided weight of authority as-well as reason sustains the position, that ‘parol evidence that at the time of the conveyance the vendee agreed to hold the title in trust for the vendor/ is not admissible. See Leeman v. Whitley, 4 Russ. 423 (5 Eng. Cond. Ch. Cases 746); Hagan v. Jaques et al., 4 C. E. Green 123; Squire v. Horder, 1 Paige 494; Farmington v. Barr et al., 36 N H. 86. But the correctness of the other-position taken by the court in Porter v. Hayfield, 9 Harris (21 Pa. St.) 264; that ‘as a deed of conveyance is intended to define-
It is not alleged in the bill that the parol agreement was to hold in trust, for the grantor the property conveyed; but it is claimed that it was to be held in trust, a life estate in part of it to begin at the death of the grantee, to the plaintiff, Martha L, Richardson, and Isabella F. Dean, her sister, and to the survivor of them, the remainder to D. W. McConaughey and others or to their heirs in fee. The bill does not allege that this agreement was in writing, but that it was agreed to be in writing and plaintiffs supposed that a deed to that effect was executed and placed upon record as defendant, Ann McConaughey, had agreed to do; that the same was to be placed on record by her at the same time that her deeds, by which she holds the. property, were-recorded; that the plaitniff did not discover that said deed ha.d never been recorded until she examined the records in 1898. The conveyances to Ann McConaughey dated Feb. 18. 1889, which is the date of her verbal agreement as set up in the bill to execute a writing or deed reserving to plaintiff her rights in the premises, while this suit was commenced on the 16th day of March, 1899, more than ten years after said parol agreement, relied upon by plaintiffs, was made. Appellees insist that the laches of plaintiffs in setting up their pretended claim after the lapse of more than ten years is a complete bar and defendants plead it by way of demurrer as analogous to the bar of the Statute of Limitations. In Troll v. Carter, cited, syllabus, point 8, it is held, that the courts will not enforce a parol trust where a great lapse of time has intervened since the absolute deed was-executed and where the grantee has during such time acted as the absolute owner of the property, unless the ladies of those claiming to be cestuis que trust is satisfactorily explained. In
It was certainly the duty of plaintiffs if such promise was .made on the part of Ann McConaughey to place such deed upon record to know that it was done as promised. It is not alleged, that such deed was executed or delivered, and nothing claimed 'but a mere verbal promise on the part of Ann, that she would have such a deed recorded in favor of plaintiff.
Plaintiff was guilty of gross laches and makes no explanation to entitle her to relief. There is no error in the decree and the same is affirmed.
Affirmed.
Concurrence Opinion
(concurring) :
The bill alleges a conveyance by the plaintiffs and other heirs to Arm McConaughey of certain real estate upon the understanding and agreement that she should immediately execute to the grantors severally deeds, re-convejdng to them certain portions of the land so conveyed to her, reserving to herself life estates in the several tracts so to be reconveyed, and that the particular tract to be conveyed to the plaintiffs was described and identified and a deed for the conveyance thereof to them prepared for execution by the said Ann McConaughey. The conveyance to her was a step in the performance of an antecedent agreement for the partition of real estate among the grantors, subject to a life estate therein to the grantee. Ann McConaughey, under this agreement, was to act as a sort of conduit or agency for the exchange of titles in affecting partition, and the titles were to pass in and out of her instantaneously. It was upon this agreement that the conveyances were made to her. The bill does not allege that she took the land conveyed to her upon a trust for the grantors. It does not say she agreed to hold the lands for' them. It does not attempt to set up an .express parol trust in contradiction of the deed. It attempts to allege that she committed a fraud upon the grantors in refusing to perform a contract upon the faith of which the conveyances were made to her. The facts alleged in the bill and proposed to be established by parol evidence, if they were sufficiently alleged, constitute what, in law", is termed a con
This is a principle almost as old as the Statute of Frauds itself. At an early day the courts established the doctrine that a statute which had been enacted for the purpose of preventing and suppressing frauds and perjuries could not be allowed to become itself an instrumentality or engine for the perpetration of' fraud. “A second well-settled and even common form 'of trust' ex maleficio occurs whenever a person acquires the legal title to» land or other property by means of an intentionally false and1 fraudulent verbal promise to hold the same for a certain specified1, purpose, — as, for example, a promise to convey the land to a designated individual, or to reconvey it to the grantor, and the like,. —and having thus fraudulently obtained the title, he retains, uses, and claims the property as absolutely his own, so that the1 whole transaction by means of which the ownership is obtained is-in fact a scheme of actual deceit. Equity regards such-a person-as holding the property charged with a constructive trust, and’ will compel him to fulfill the trust by conveying according to his-engagement.” 2 Pom. Eq. Jur. sec. 1055.
“The fraud against which equity will relieve, notwithstanding the statute, is not the mere moral wrong of repudiating a contract' actually entered into, which, by reason of the statute, a party is-not bound to perform for want of its being in writing. This was early laid down by Lord Macclesfield, Chancellor, in a case arising upon a promise of a defendant, about to marry, that his wife ■ should enjoy all her own estate, to her separate use after the marriage, which promise, as one made “upon consideration of marriage/ could not regularly be enforced. His lordship declared that fin cases of fraud, equity should relieve, even against the-words of the statute; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly orought in and executed in lieu of the former; in this or such like eases of fraud, equity would relieve; but where there is no»
“Parol evidence is admissible to establish a trust, even against ■a, deed absolute on its face, if it would be a fraud to set up the form of the deed as conclusive. Lord Hardwicke stated ‘that the ■court adhered to this principle, that the statute of frauds should never be understood to protect fraud, and therefore wherever a ..case is infected with fraud, the court will not suffer the statute to protect it/ Lord Thurlow added, that ‘the moment you im-peach a deed for fraud you must either deny the effect of fraud upon the deed, or you must admit parol evidence to prove it/ If •this was not so, the law would be reduced to this absurdity — if a -fraud could once succeed in procuring the transaction tea be re■duced to writing and signed by the parties, it would be protected 'by the law itself, and there would be no possible means of reaching and correcting the wrong. But in such case the bill must «contain a clear and distinct charge of fraud. Therefore, wheit-.ever the bill sets out a clear case of fraud, parol evidence will be .■admitted to prove it, even if the effect of such evidence is to contradict, vary, altar, or destroy written instruments. The mere refusal of a grantee to execute, or the denial of the existence of ■an invalid parol trust upon which she promised to hold the prop- • erty, is not such a fraud as will take the case out of the statute. But where a valuable interest passes to one on the faith of a contract he refuses to perform, equity will compel restitution or give ■other appropriate relief. In any case if the trust arises from the acts of the parties, and not exclusively from their agreements, the statute of frauds is not a bar to the proof.” Perry on 'Trusts, sec. 226.
But the bill is defective in this, that it fails to allege or charge •that the defendant, Ann McConaughey, fraudulently procured ■the making of said- conveyance to her. It should have charged •that she procured the making of said conveyance by falsely and fraudulently representing and promising that she would immediately reconvey a certain portion of the land in accordance wi th •the agreement of partition, and took said conveyance fraudulently intending, at the time, not to comply with her said promise to re-convey, and, with the like fraudulent intent, has refused to .comply with said promise. Manning v. Pippen, 95 Ala. 537;
It may be that the facts set up in the bill, if established by -evidence, would sustain the charge of fraud. Browne on Statute of Frauds, sec. 94a, 439. But the bill ought to charge fraud in express terms. Nothing is to be considered here but the bill, as the case stands upon the ruling of the court upon the demurrer, and the count say the bill must contain a clear and distinct charge of fraud. Irnham v. Child, 1 Bro. Ch. 94; Portmore v. Morris, 2 Bro. Ch. 219; Forsyth v. Clark, 3 Wend. 637; Gouverneur v. Elmendorf, 5 Johns. Ch. 79; Kennedy v. Kennedy, 2 Ala. 571. In Troll v. Carter, 15 W. Va. 567, 583, Judge G-keeN directs particular attention to the want of any charge of fraud in the bill otc the evidence.
Intent is a necessary element of fraud in such case The agreement may have been made, and the conveyance taken, in good faith and with an honest intention to reconvey, and the fraudulent design oif dishonestly retaining the property or disposing of it in violation of. the agreement may have been formed
If the evidence, establishing such fraud, were before the court,an amendment could be allowed, but the court cannot say whether an amendment would avail anything or not. Hence, under-the rule, the plaintiffs having declined to amend in the court below, the decree of dismissal must be affirmed.
For the foregoing reasons, I concur in the decision, but not hr all the reasoning of the opinion prepared by Judge McWhoeteR-