30 W. Va. 248 | W. Va. | 1887
in order to decide properly the question whether the bill in this cause was fatally defective on general demurrer, because it was multifarious, or because it failed to make the necessary defendants, we must have a clear conception of what is a resulting trust, arising from the payment of the whole or a part, of the purchase-money of a tract by some person other than the grantee, and under what circumstances such resulting trust arises, as the bill in this cause claims that the plaintiff has such a resulting trust to a certain extent in one of the tracts of land conveyed to Alpheus A. D. Fetty by Parker, and afterwards, without any valuable consideration, conveyed by Fetty to his wife, Ruth A. Fetty, the defendant. Ever since the case of Wray v. Steele, 2 Ves. & B. 388, it has been held that, when land has been purchased, and a part of the purchase-money was paid by a third person, a stranger to the grantee, there was prima facie a resulting trust to the extent of such advancement in such land to such stranger; and it has never been questioned in this country but that the payment of a part of the purchase-money by a stranger to the grantee will create prima facie a resulting trust to the extent of such payment. See Botsford v. Burr, 2 Johns. Ch. 405, 410; Purdy v. Purdy, 3 Md. Ch. 547; Buck v. Swazey, 35 Me. 41; Pierce v. Pierce, 7 B.
The whole doctrine of resulting trusts, arising from the payment or part payment of the purchase-money, has been abrogated in some few of the States by statute, but not in this State. But it is admitted that this doctrine of resulting trusts, arising from the payment of the whole or a part of the purchase-money by a person other than the grantee, should be acted upon with great caution ; and the circumstances from which a trust is to be raised must be clearly proven, (Faringer v. Ramsay, 4 Md. Ch. 33;) and the payment or'advance of the purchase-money must be made before or at the time of the purchase ; and a subsequent payment will not by relation attach a trust to the original purchaser, (see Nixon’s Appeal, 63 Pa. St. 279;) for the trust arises from the fact that the money of the real, and not the nominal, purchaser formed at the time the consideration of the purchase, and thus became converted into land, in view of a court of equity. See Botsford v. Burr, 2 Johns. Ch. 405, 414; Steere v. Steere, 5 Johns. Ch. 1, 19, 20; Jackson v. Morse, 16 Johns. 199; Page v. Page, 8 N. H. 187, 196; Conner v. Lewis, 16 Me. 268, 274. There has been some diversity of ojúnion as to whether, when a widow pays for land conveyed to her child, a resulting trust arises; but the weight of authority is that it is presumed to be an advancement, and no resulting trust will ordinarily arise in such cases. Sayre v. Hughes, L. R. 5 Eq. 376; Murphy v. Nathans, 46 Pa. St. 508. Sed vide Re de Visme, 2 De Gex, J. & S. 17.
It has been argued that a mother is not bound to advance her child, and that a widow does not stand in such a relation to her child as to raise a presumption, when she purchased land, and it is conveyed, not to her, but to her child, that she intended it as a gift. But it does seem to me that as maternal affection is the strongest motive to bounty, that the
But as a resulting trust arising from the payment of the purchase-money by one, while the deed is made to another, is based altogether upon the intention of the parties presumed or proven, it would suffice in enforcing such a resulting trust in the bill to allege its existence and the manner jn which it has arisen; but on the principles of pleading the plaintiff would not be required to state all the facls from which he claims the intent of the parties that the beneficial use of the estate should be in the plaintiff, the party paying the purchase-money, though the deed was made to another. He would be permitted to prove the facts or circumstances showing such intent. Though they were not specifically named in the bill, this would not violate the rule that the allegata and probata must, agree; for the allegation, either expressly or by necessary implication, that a certain intent existed when the land was purchased would be sufficient, and these particular facts and circumstances are admissible as proof, because they tend to prove this express or implied allegation of such intent in the bill. One of the objects of the suit before us, as appears from the face of the bill, is to set up a resulting trust arising from the part payment of the purchase-money of a tract of land bought of Parker in Ritchie county by Sisson Shaffer, partly with money of her son, Alpheus A. D. Fetty, in her hands, and partly with her own money; the deed having been made to him, and he having voluntarily conveyed it to his wife, without valuable consideration, and for a mere nominal consideration. Were the allegations on tins subject, if admitted to be true, such
These omissions to state necessary facts, and these indefinite statements, are not grounds assigned in the demurrer as fatal defects in the bill. On the contrary, it assigns as a fatal defect that the administrator of Alpheus A. D. Fetty was not made a defendant, as he would have had to pay this $100.00 obligation out of the personal estate before this land could be charged with it. This objection is obviously based on the false idea that this $100.00 obligation or its amount was a lien on this tract and a debt due from the estate of Alpheus A. D. Fetty, if the plaintiff had any claim based
But it may be said there was not a single circumstance stated in the bill which tended to rebut the presumption; but it was only necessary to allege in her bill that this payment of a part of the purchase-money was not intended at the time to be an advancement, and she could then prove
Another objection to the bill was alleged in the demurrer; that is, that the bill was fatally defective because it was multifarious. Before deciding this point thus raised, we must determine what was the real character and object of this bill. As I construe it, the object of the bill was, primarily, to set aside as fraudulent and void the deed from Alpheus A. D. Fetty to his wife, made December 26,1882, because he was then non compos mentis. But if this were not so, then the plaintiff ought to set up a resulting trust in one of the tracts of land conveyed in this deed, because she had paid a part of the purchase-money, and the deed was a voluntary deed. The deed, on its face purported to be made in consideration of one dollar, but this nominal consideration would not, as counsel seem to suppose, make it even prima facie a deed for a valuable consideration or prevent it being proven to have been entirely voluntary. See Wickes v. Clarke, 3 Edw. Ch. 63; McKimby v. Combs, 1 Mason 106; Ridgway v. Underwood, 4 Wash. C. C. 133; Sewell v. Baxter, 2 Md. Ch. 454; Wickes v. Clarke, 8 Paige 163. I think I have stated "correctly the objects of the bill, though they are not distinctly stated in the bill. Had they been so stated, I do not think it could have been regared as multifarious, as her claim would have been to the whole of the real estate of Alpheus A. D. Fetty as his sole heir, subject,
If the plaintiff’s claim had been as stated in her bill against Ruth A. Fetty alone for the whole land, and if this were held not a valid claim on the facts proven, then she claimed a certain portion of the land as a resulting trust. I think this might have been claimed in the same bill, without making it multifarious. This would then have been a bill with a double aspect, which may be filed in certain cases ■when it is doubtful what relief the plaintiff is entitled to on the facts. In such a case, of course, the prayer of the bill should be in the alternative; and the prayer of the bill in the cause before us was not in the alternative. It should have been that the deed of Alpheus A. D. Fetty to his wife be declared null and void; or, if it should be held valid, then that a resulting trust in a portion of his land be declared by the court, and a definite portion of a tract of land sold to him by Parker, as claimed in the bill, be declared to belong to the plaintiff, and for general relief. If the prayer had been to set aside the deed as null and void, or for such other relief as in equity might seem just, this prayer would have sufficed; for, though a plaintiff is not entitled to the relief specifically pi’ayed for, he may, under the general prayer, have any other specific relief, provided it is consistent with the case made bjr the bill. See Wilkin v. Wilkin, 1 Johns. Ch. 111, 117; Hiern v. Mill, 13 Ves. Jr. 114, 120; King v. Rossett, 2 You. & Jer. 32. And I am inclined to think there would not have been any inconsistency with the case intended to be stated in the bill, in the granting of the plaintiff’s relief by setting up her resulting trust, if established, if the plaintiff failed to establish her claim to all the land by showing the deed by Alpheus A. D. Fetty to his wife was null and void. The bill in this case was defective because its prayer was not, as it should have been, alterna
I am inclined to think that the simple uniting in one bill the claim by the plaintiff in this cause to all the 'lands of Alpheus A.. D. Fetty as his sole heir, and, if the court should hold that all his lands in his lifetime had been properly conveyed to Kuth A. Fetty, the defendant, then claiming as an alternative against her a certain portion of his lands by reason of a resulting trust, was not the uniting in one suit two matters so distinct as to render the bill, if properly framed, demurrable as multifarious. The claim would have been against the same, person by a single plaintiff, and the object would have been, I am inclined to think, not two distinct matters, but one general purpose — the declaring of the plaintiff equitably entitled as against the defendant to the whole or a certain definite portion of the lands formerly owned by Alpheus A. D. Fetty. „
It is said by Judge Story in his Equity Pleading, § '530, that u to lay down any rule universally applicable as to multifariousness, as an abstract proposition, is, it has been said, upon the authorities, utterly impossible. The cases upon the subject are extremely various; and the courts in deciding them seems to have considered what was convenient in particular circumstances, rather than to have attempted to lay down an absolute rule. ” And again, in section 531: “ Where there is a joinder of distinct claims between the same parties, it has never been held, as a general proposition, that they can not be united, and that the bill is, of course, demurrable for that cause alone, notwithstanding the claims are of a similar nature, involving similar principles and results, and may therefore, without inconvenience, be heard and adjudged together. * * * Such a rule would
It is true the two claims here, — the invalidity of the deed to Alpheus A. D. Fetty to his wife' of his land, and the claim to a resulting trust in this land, — are not of a similar nature, and do not involve similar principles and results; but the claims were by one plaintiff against one defendant to the whole or a part of the sáme land, and the subjects were such as without inconvenience could be united in one and the same bill, avoiding a multiplicity of suits, if, as was claimed in the bill, the plaintiff was the sole heir of Alpheus A. D. Fetty. It seems to me that our Court has acted upon a principle more than once that would go far to justify, under such circumstances, the filing of such a bill. Thus, in Arnold v. Arnold, 11 W. Va. 455, a bill was not held multifarious in asking to set aside- deeds by the intestate, and also asking a partition of the lands; and the same was held in Dean v. Philips, 5 V. Va. 168. These two claims were no more similar in their nature than the two claims in the-bill in this cause ; nor did the action of the court on them involve similar principles and results, but distinct principles and results, as in the case stated in the bill before us. . But in those cases, as in the case before us, the subject to be acted upon — the land — was the same in both claims. The parties to the two suits, if two had been required to have been brought, would not in those cases have been the same. But in the case before us, as stated in the bill, they -would have been the same; and in this respect it would seem that there is a stronger reason for holding the bill in this case on its face not multifarious than existed in those cases; as in the one before us, if it had been such a case as the bill stated,
The far more important defect, which it was claimed existed in the bill, — that it was multifarious, — we are rather inclined to think did not exist. But in reaching such a conclusion, we have to go to the full extent, which we regard as permissible in allowing the party, for convenience and to avoid a multiplicity of suits, to unite in a suit against one single defendant different claims to the same land, and perhaps it would be going too far. But if the bill had set out the i mport-ant fact that Alpheus A. D. Fetty left surviving him several heirs, of whom the plaintiff was one, and the bill had made, as was absolutely necessary, these co-heirs of the plaintiff co-defendants with Ruth A. Fetty, this case would have been entirely changed, and the bill would have been multifarious. Its objects, then, would have been primarily to set aside this deed to Ruth A. Fetty, and then set up against the co-heirs of the plaintiff, the other defendants, the resulting trust the plaintiff claimed; or, if this deed could not be set aside, then to set up this resulting trust which the plaintiff claimed against Ruth A. Fetty alone. If this deed to Ruth A. Fetty were set aside, 1 he plaintiff, and her co-heirs, the other defendants, would have identical interests in opposition to Ruth A. Fetty alone. But if it were set aside, Ruth A. Fetty would have no interest whatever in the remaining controversy, whether the plaintiff had the resulting trust she claimed in her bill, for in that case it would, if it existed, be set up against the co-heirs of the plaintiff, who alone in that case would have had any interest in whether such resulting trust was established or not; and neither justice nor convenience would be promoted by subjecting the defendant, Ruth A. Fetty, to the costs of determining a controversy between the plaintiff and her co-heirs, in which she could have no sort
The court below, however, regards these co-heirs with the plaintiff of Alpheus A. D. Fetty, Annie Hawkenberry, and Felinda Satterfield as already parties to this suit, and that they are therefore bound by the depositions and proceedings taken in this cause; and that, when an amended bill should be filed, these depositions could be read upon its hearing. This is a mistaken view. They are not, and never were, parties to this cause, and are bound by none of the proceedings heretofore had in the cause, nor could the depositions which have been taken in this cause be read, either for or against them, if the bill were penmtted to be amended, and they were made parties, except bjT the consent of all parties; and by such consent they could as readily be read in any new suit or suits to enforce her claims which she might hereafter bring. It is true that on June 30,1886, the court below did enter this order : “ This day Ann Hawkeubury, formerly Ann Fetty, and Felinda Satterfield, formerly Felinda Fetty, tendered their joint and several answer to plaintiff’s bill in this cause. They having waived the process as respecting themselves, and it appearing to the court that they are proper parties to the said bill, upon their own motion, by counsel, their answers are permitted to be filed; and it is further ordered that so much of the decree made in this cause at a former day of this term, which allows the plaintiff to go to rules to amend her bill by making-new parties be, and the same is hereby, set aside.” But this order was erroneous. They could not be made' defendants in such a manner; and all the proceedings i n the cause, including the taking of all the depositions, must be regarded just as though thejr had been taken and had in the absence of these defendants. This order of June 30,1886, is not simply erroneous, — it is null and void: and the cause is to be regarded as to these new parties, just as though it. never had been entered. This necessarily follows from what was decided in the case of Moseley v. Cooke, 7 Leigh 224. The syllabus in that case is: “ Upon a bill in chancery against, several defendants, pro
The statement of that case shows that the decree which had been reversed in part, and in part affirmed, by the Court of Appeals, was claimed by the party who had not been named in the bill, but who had been served with process as an interlocutory decree; but the appellants contended that it was final. When the cause was remanded to the court below, supplementary proceedings were taken against certain new parties, not including the party who had been served with process before the cause was first heard, but who was not named in the bill. He presented what he called an answer, but the court refused to let him file it, because the decree by default against him had been affirmed by the Court of Appeals, and because his reason for not having-filed his answer sooner were deemed by'the chancellor insufficient. Judge Tucker, in delivering the opinion of the Court, says: a There is no error in the refusal to permit him to file his answer in this cause. No person has a right to file an answer in a suit in which he is not a party.” He then examines the question whether41 he was a party, and reaches the conclusion that he was not. The opinion concludes thus : “ It is a solecism to speak of answering a bill in which he is not named, and in which he does not, even by inference, appear to have any interest or concern. The Court is of opinion, therefore, that the order refusing to permit him to file an answer be affirmed, stating, however, as the grounds of affirmance, that he was not a party to the suit, and not bound by the decree, and therefore was under no necessity to answer the bill, and had no right to insist on filing his answer.”
So here, Annie Hawkenbury and Felinda Satterfield, half-sisters of Alpheus A. I). Fetty, and co-heirs of him with the
For these reasons, T am of opinion that the decree of the court below, rendered on July 1,1886, must be set aside, reversed, and annulled at the cost of the plaintiff below, and a decree entered sustaining the demurrer to the bill, and giving the plaintiff below no leave to amend her bill, as it cannot be amended without making it multifarious; and the bill must be dismissed at the cost of the plaintiff below, but without prejudice to her instituting another suit to set aside and annul the deed from Alpheus A. D. Fetty to his wife, Ruth A. Fetty, dated, December 26,1882, or another suit to set up and establish the resulting trust claimed by her in her bill, or any other suit which she may be advised to bring.
REVERSED.