61 W. Va. 157 | W. Va. | 1906
A decree enforcing specific performance of an alleged con
The original bill seems to treat it as the property of Matilda Belcher. It having been discovered, after the filing of the bill, that, as to her, the contract is void for want of an acknowledgment, the plaintiff had the contract admitted to record, upon proof, before the clerk of the county court, by two witnesses, of its execution. He then, by an amended bill, set up a resulting trust in Andrew J. Belcher as to the tract of land in controversy, the basis of which is the allegation that the purchase money of the land was paid out of funds belonging to him. This land is a portion of three tracts, making in the aggregate 1,082 acres, which was sold, by John W. McCreary, special commissioner, under a decree in a certain chancery cause, to R. M. Wyatt for the sum of $205.00. By direction of Wyatt, the commissioner conveyed it to Matilda Belcher. The purchase money seems to have been paid, notwithstanding the denial of Matilda Belcher, out of the proceeds of a tract of land which had descended to her husband and his brothers and sisters from their father, Peter Belche'r. Prior to the bringing of this suit, Matilda Belcher had conveyed, to all the heirs of Peter Belcher, except her husband and his' imbecile brother, James Belcher-, portions of said land, pursuant to a verbal agreement of partition. James Belcher was supported and cared for by his brother Andrew J., and it seems that in consideration of this it was intended by all the parties that Andrew J. should take the share of James in the event of his death, which occurred prior to the bringing of this suit, and those two shares were accordingly laid off together and the title was allowed to stand in the name of Matilda Belcher.
If the wife has the equitable as well as the legal title, the decree is clearly wrong. A married woman cannot divest herself of title by even a written contract, unless it has been acknowledged by her in the manner prescribed by law; nor can she bind herself by an executory contract of sale, without duly acknowledging it. On this point it is only necessary to cite the decisions of this Court. Amick v. Ellis, 53 W. Va. 421; Rosenour v. Rosenour, 47 W. Va. 554; Moore v. Ligon, 30 W. Va. 146; Moore v. Ligon, 22 W. Va. 292. The reasons assigned, in these decisions, for the rule they declare, make it manifest that section 2 of chapter 13 of the Code, providing for ' recordation of deeds and other instruments upon proof of the execution thereof by two witnesses before the clerk of a county court, does not, in the case of a married woman, dispense with the necessity of a formal acknowledgment before an officer duly authorized to take the same. That section concerns recordation only. Sections 4 and 6 of .said chapter provide specially for acknowledgment by married women, and the decisions just cited declare the necessity therefor, not merely for the purpose of recordation, but for the purpose of passing title —a thing entire^ separate and distinct from the matter of recordation. In such case, acknowledgment is a requisite of a valid deed or contract for the conveyance of land.
As has been stated, the evidence seems to sustain the allegation that the land was paid for with money belonging to Andrew J. Belcher and his brothers and sisters, and partition has been made. Hence, it may be that the portion still
In their answers, tl>e appellants asked, by way of affirmative relief, that the contract be declared null and void and canceled and the possession of the land restored ,to them. This relief cannot be granted for the reason that, for the recovery of possession, they have an adequate remedy at law, and, being out of possession, they cannot maintain a bill for the removal of a cloud upon the title, if this void contract can be regarded as constituting a cloud. It would not be a defense to an action of ejectment. An equitable defense, to defeat an action at law, under the provisions of sections 20 and 21 of chapter 90 of the Code, must be such
The mere statement of these principles makes the error of the decree and the impossibility of granting the relief prayed for clearly apparent. The decree must be reversed, the bill dismissed and a decree entered here in favor of the appel lants for their costs in the court below, as well as their costs in this Court, but without prejudice to any right of action the appellee may have to recover the purchase money paid by him.
Reversed. .Bill Dismissed.