Troll v. Carter

15 W. Va. 567 | W. Va. | 1879

Gree^, President,

delivered the opinion of the Court:

The questions presented by the record in this case are, first — whether the plaintiff can prove by parol evidence that the deed made by Edward G. Steenrod to his father Daniel Steenrod, which on its face was an absolute conveyance for a valuable consideration of the Carrol farm, was in reality by a verbal agreement to be regarded as a deed conveying this land in trust for the use of the grantor for life and remainder in fee simple to his children ; and whether if such verbal trust is satisfactorily proven it would be enforced ; and secondly — if such parol evidence can be received for such a purpose; what must be its character in point of strength and clearness to justify a court in enforcing a trust of this sort, if it would be justified in any case in so doing.

It is a general rule of evidence, that parol testimony Syllabus i. cannot be admitted to vary or add to a written contract, and especially a contract or deed conveying lands. See Towner v. Lucas, ex’r, 13 Gratt. 705; Broughton v. Coffer, 18 Gratt. 184; Spindle et al. v. Hayworth et al., 18 Gratt. 392; Hurst v. Hurst, 7 W. Va. 298; Stevens v. Cooper, 1 Johns. Ch. 425; Flint v. Shelden, 13 Mass. 343; Holmes v. Simmons, 3 Desau (S. C.) 149; Little Kanawha Navigation Company v. Rice, 9 W. Va. 636. There are some Syllabus 2. cases which are sometimes called exceptions to this general rule, but which are really not exceptions, they being cases to whicb the rule is not properly applicable. Thus a party, wbo is apparently the absolute owner of a tract of land by a deed so conveying it to him, may be held by a court of equity a trustee of the land for the use of others, when it is shown that in taking the deed for the trust in his own name he committed a fraud on such others. This fraud may be proven by parol, yet this parol evidence cannot be regarded as admitted to vary, explain or contradict the deed, but simpty to charge the conscience of the grantee, and to enforce him to perform a trust which the facts so proven show was binding on him in equity and conscience. So too, where land has been purchased with the funds of A., and the deed taken in the name of B., a court of equity holds that B. shall be regarded as a trustee for the use of A., and the fact that the land was purchased with the funds of A. may be proven by parol, but such cannot be regarded to vary or add to the deed, but as establishing a state of facts independent of the deed, which facts so proven affect the conscience of the grantee and in the view of a court of equity make him a trustee for A. whose funds have been so invested in the purchase of the land. So too, if the scrivener has made a mistake in drawing the deed, such a mistake may be corrected by parol evidence. Such evidence is admitted not to vary the contract, but simply to enable the court to enforce the real contract of the parties, which by accident or mistake has not been written down as the parties agreed it should be written. So too a deed absolute on its face may be shown by parol evidence to have been given as security for a loan, or as security for the payment of an antecedent debt. The real office of the parol evidence in such a case is not to vary the contract in writing, but to establish the existence of a collateral fact, which when established controls the deed. Many authorities have been cited by the appellant’s counsel to sustain these positions, which I regard as so elementary as not to require the citation of authorities to sustain them. So too, if a party obtained a deed or a devise without any consideration, upon a parol assurance by the grantee or devisee that he will make a particular disposition of it, a court of equity will enforce the specific performance of such an agreement, even though the deed recites that it was made for a valuable consideration, if in point of fact no consideration was really paid by the grantee. See Onson v. Cown, 22 Wis. 329; Miller v. Pearce, 6 Watts & S. 97; Hoge v. Hoge, 1 Watts 163; Thompson et ux. v. White, 1 Dall. 447; Kennedy’s heirs and ex’rs v. Kennedy’s heirs, 2 Ala. 571. In such case the deed or will is not added to or altered by the parol evidence; but this evidence fastens on the individual who has got the title without consideration the personal obligation of fulfilling his agreement whereby he procured the title, as without its enforcement by a court of equity the grantee or devisee would be allowed to avail himself of a fraud in so obtaining the deed or devise. But it the land be conveyed by a deed of bargain Syllabus 3. and sale for a merely nominal consideration, the courts of equity would not receive parol evidence to prove that the grantee agreed to hold the land for the grantor’s use, as the deed in such a case must have been made for the express purpose of divesting the grantor of his title and vesting the same in the grantee. Such parol evidence, if admitted, would defeat the very purposes for which the deed was made and must be regarded as contradicting the deed, and the general rule we have laid down requires in such a ease its rejection. Philbrook v. Delano, 29 Me. 410; Rathburn v. Rathburn, 6 Barb. 98; Graves v. Graves, 9 Foster (29 N. H.) 129; Blodgett v. Hildreth, 103 Mass. 484.

In the case of Porter v. Hayfield, 9 Harris (21 Pa. St. 214, the Court say: “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 can not be heard to change a title absolute on its face into a trust.”

It was however held in Lingelfelter 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. Syllabus 3. 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 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 establishes a new and consistent relation,” is by no means so obvious.

The 7th section of the English statute of frauds Syllabus 29 Car. II, ch. 3, enacts that all declarations and creations of trust or confidences in any lands, tenements or hereditaments, “shall be manifested and proved by some writing signed by the party who is by law to declare such trust, or by his last will in writing,” This section, or a section very similar thereto, has been enacted in many States, as in Alabama, Arkansas, California, Georgia, Illinois, Iowa, Maryland, Massachusetts,'Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, Vermont and Wisconsin; and though this section had not been enacted in Pennsylvania when the case of Porter v. Hayfield, 21 Pa. St. 264, was decided, yet shortly thereafter, in 1856, it was substantially enacted there. This-seventh section would seem obviously directly opposed to the views in this Pennsylvania case on which we are now commenting. In some States however there has been a failure to re-enact this 7th section. So far as I am at present informed, it has not been re-enacted in Connecticut, Delaware, Kentucky, Indiana, North Carolina, Ohio, Tennessee, Texas, Virginia, and West Virginia.

It has been a question whether uses at common law could be raised by parol. The conclusion reached by Lord Chief Justice Baron Gilbert shows probably the correct views on this point. His conclusion is that a use might be raised at common law by parol upon any conveyance which operated by way of transmutation of possession as a feoffment; since the estate itself might by the common law pass by a parol feoffment; and therefore by the same reason a use of the estate might be declared by parol. But where a deed was requisite for the passing,of the estate itself, then the declaration of a use could not be by parol. See 2 Story Eq. Juris. §971. If this be correct, the omission of the 7th section of the English statute of frauds in some of the States is immaterial, as by the common law a declaration of trust in any lands “must be manifested or proved by some writing signed by the party who is by law to declare such trust/’ when the conveyance of the land itself can not be verbal, as it now never can be. But nevertheless in some of the States, where the ,7th section of the English statute of frauds has not been enacted, it has been held that trusts in land can be proven by parol. See Dunham v. Chatham, 21 Texas 231; Bailey v. Harris, 19 Texas 110; Hall v. Taylor, 16 Texas 278; Foy v. Foy, 2 Hayw, 131 (N. C. R. by Battle 296); Biggs v. Swann, 6 Jones Eq. 118; Shelton v. Shelton, 5 Jones Eq. 292; Haywood et al. v. Ensley & Haywood, 8 Humph. 466. But the decisions of the courts in States where the 7th sections of the English statute of frauds has n.o,t been re-enacted have not been uniform. Thus it is held in Ken-' tucky, where the 7th section of the English statute of frauds has not been re-enacted, that a parol declaration of a trust in land can not be set up. See Childs v. Woodson, 2 Bibb 72; Parker’ heir’s v. Bodley, 4 Bibb 102.

In the case of the Bank of the United States v. Carrington et al, 7 Leigh 566, the Court of Appeals of Virginia comment on the omission of the 7th section of the English statute of frauds from our statutes, and they appear to attach some importance to the omission. But as the Court say the case before them was a resulting trust, and even had this 7th section been in our statute, upon the English authorities their decision would have been the same as it was, and what was said by the judges in that case about this 7th section and its effect was confessedly obiter dicta. The same remarks may be applied to the case of Walraven v. Lock et al. 2 Patton & H. 547.

In the case of Sprindle et al. v. Hayworth et al., 26 Gratt. 392, Judge Moncure, in delivering the opinion of the court, after holding that a certain parol declaration of a trust was inadmissible says: “ We do not mean to admit, however, that there is any difference in effect between the English statutes of frauds and ours arising from the omission in the latter of the 7th and 8th sections of the former.”

In Hardman v. Orr et ux., 5 W. Va. 71, the father of a natural daughter purchased land- ..and a had it conveyed to a. natural son,- with. the agreement on his part that at a future time it would be conveyed to the natural daughter of the purchaser. It was held that this trust could be proven by parol and would be enforced against the grantee. It will • be observed that so far as the grantee was concerned the conveyance was voluntary, he having furnished no part of the purchase-money; and according to the views heretofore expressed a parol trust would be enforced against him; for to permit, him to retain the land, w.hen he had paid nothing for it.and had obtained the deed by a promise to convey the land another, would be to permit him to avail himself of his fraud. In such a case his conscience is affected ; and a court of equity properly regards him as a trustee. This, we have seen, would be the case alike in States where the 7th section of the English statute of frauds had been re-enacted and in States where it had not. Strong reasons may be assigned, independent of this 7th section of the statute of frauds, why as a general rule parol evidence ought not to be received to establish a trust in lands.

This question is considered in the notes to White & Tudor’s Leading Cases in the notes on Dyer v. Dyer, see vol. 1 Pt. 1, p. 354; and the conclusion reached is: Syllabus 5. “That a grant cannot be affected with an oral trust for a third person merely on the ground of contract, nor unless the evidence goes far enough to establish fraud.” This conclusion is supported by highly respectable authority ; but, as we have seen, there is perhaps equally respectable authority which would lead to a contrary conclusion. In this case it-is unnecessary to decide whether it-is law or not; as in the view I take of this case it may be decided on a point on which the authorities are all Syllabus 7. agreed, that if the statute of frauds in any case be inapplicable, and a trust of land be permitted to be established by parol evidence, to establish such a trust the evidence must be full, clear and satisfactory. Phelps v. Seeley, 22 Gratt. 589; Snavely v. Piekle, 29 Gratt. 31; Bank of the United States v. Carrington, 1 Leigh 576; Currey v. Dupree, 21 Texas 211; Boyd v. McLean et ux., 1 Johns., Ch. 562; Gascoigne v. Thwing, 1 Vern. 366; Fowler v. Fowler, 4 De. G. & J. 265; Tesson v. The Atlantic Mutual Insurance Co., 40. Mo. 33, 36; Kilpin v. Kilpin, 1 Myl. & K. 520; Harrison v. McMennomy, 2 Edw. Ch. 251; Slocum et ux. v. Marchall et al., 1 Wash. C. C. 398. So too all the authorities agree that an equitable claim of any sort, and especially one which depends on parol testimony only, will not be recognized after great lapse' of time, during which timeit has been ignored, where no satisfactory reason can be assigned for not setting up the claim sooner. And that this is more especially true when the equitable claim is of a character which required clear and explicit evidence to sustain it; such lapse of time Syllabus 8. itself rendering the evidence, which might otherwise have been regarded as sufficiently clear and explicit, unsatisfactory. See Benjamin v. Clarke, 20 Gratt. 544; Phelps v. Seeley, 22 Gratt. 589; Clarke v. Boorman’s ex’r, 18 Wall. 509; Sullivan v. R. R. Co., 4 Otto 811; Western Mining and Manufacturing Co v. Peytona Cannel Coal Co. 8 W. Va. 442; Marquis Cholmondelley v. Lord Clinton, 2 J. & W. 138, 156; Bechford et al. v. Wade, 17 Ves. 88; Decouche et al. v. Savetier et al., 3 Johns. Ch. 190; Prevost v. Grantz, 6 Wheat. 481; Hughes v. Edward, 9 Wheat. 483; Piatt v. Vatier et al., 9 Pet. 416.

There is but little difficulty in applying the principles of law I have laid down to the facts in this case. It is neither alleged nor proven that Daniel Steenrod, the grantee, in the deed of March 20, 1832, fraudulently procured this deed to be made to himself and not to the plaintiffs, or that the Carroll farm was purchased and paid for by the plaintiffs, or that this deed was executed to secure a loan or precedent debt due the grantor. In the argument of this case it has been to some extent treated, as if the object of the suit was to correct a mistake made by the scrivener of this deed, and to make it conform to what the parties to the deed designed to have inserted in it. I do not understand this to have been the object of the suit; in the bill there is no allegation that the writer of this deed had made a mistake in drawing it, and no proof that any mistake was made in drawing it.

The allegation of the bill is that some time prior to the execution of this deed it was agreed that Edward G. Steenrod should convey to his father this farm absolutely, as I understand the bill, and it being so conveyed to him, he should hold the same for the grantor for his life, and after his death for the use of his children, and that a negro woman and her children were to be conveyed in the same manner, 'and when so conveyed were to be held by the grantee on the like trusts: for more than twenty years the grantee admitted that he held this property on these trusts and then he made his will and disposed of this land as his own. The bill also states that this deed and bill of sale were both voluntary deeds on the part of the grantor, no consideration being paid by the grantee for said property.

The authorities we have cited show that, if this suit had been instituted in a reasonable time after the making of this deed and bill of sale, and it had been clearly and distinctly proven that the grantee paid no consideration for this land, and that he expressly agreed to- hold the same for the use of the grantor for life and the remainder in fee for the use of the grantor’s children, the court would not enforce this trust in favor of the grantor, but would enfoi’ce it in favor of the third parties, the children of the grantor. But the evidence of such parol trust, even had the suit been instituted promptly, must have beeD clear and explicit. Is this case thus proven by clear and explicit evidence? This deed on its face states that the consideration paid by the grantee for this Carroll farm was §3,000.00. It was signed by the grantor, E. G. Steenrod; and it amounts to a solemn admission made by him at the time that he had received of his father, the grantee, full value for this Carroll farm. The only evi-denco introduced to show the contrary is the evidence of the widow of the grantor. This deed when it was drawn was evidently drawn to be signed by her and her husband, as her name is inserted in the body of the deed and two seals attached to it, opposite to one of which is her husband’s name. Buc she never executed this deed; and from this and her own statement it is obvious she was not present when it was executed. Her deposition was not taken for some thirty-two years afterwards. She says : “ Not a dime in the way of consideration was paid to him ” for this land. And when asked, she says she knows this, “ because none was asked and none offered.' He did it for the sole purpose of saving the land for his children.” As she was not present when this deed was executed, she could only have leárned that no consideration was paid from what she heard, it may be from both parties. We will assume she did so learn it, and that in point of fact the $3,000.00, the consideration named in the deed, or any part thereof, was not paid by the father to the son at the time the deed was executed. But does it follow from this that the deed was a voluntary deed made without consideration? If the son was then indebted to his father in that or a larger amount, may not his indebtedness have been the consideration ? And in the face of the fact that this sum is recited to be the consideration ought we not to assume that this indebtedness was the consideration ?

Now the evidence shows that the grantor in this deed was á thriftless man, and his father, the grantee, largely aided in the support of him and his family, and that this very farm was paid for in part, when it was deeded to the son, by two lots in Wheeling which had belonged to to the father. The son then was indebted to the father for aid furnished to him, unless this assistance was understood by the parties to be gratuitous. There is no evidence it was so understood. Is it unreasonble to suppose that it was not so understood, when the parties state on the face of the deed that the conveyance, made by by the son to the father was a valuable consideration ? Is it not rather reasonable to suppose that it was understood that the son was indebted to the father the full value of this land, and that this was the real consideration for this deed ? Then the recital in the deed, that the consideration of the deed was $3,000.00, is consistent with the statement that no cash was paid by the father to the son for this farm.

I have given to the widow’s testimony more weight than it is reasonably entitled to, and have considered her statement, as though she had been present when the deed 'was executed, and had said that no money was then paid to her husband. But it seems to me it is not entitled to so much weight. She is speaking of transactions occurring thirty-two years before, in which time we may well suppose they had faded from her memory. In speaking of the bill of sale of the negroes and two children, which occurred about the same time, and which from the bill we may fairly infer really constitute a part of the same transaction, and about which she originally knew just as much, in all probability, as about the sale of land, she appears now to be very ignorant. This bill of sale, the bill says, was also voluntary; andthe.se negroes too, like the land, were to be held for the use of the grantor for life, remainder for his children. Yet she says she does not know what consideration was paid by the father for these ne-groes, and that if any thing was paid for them it went into the coal banks; nor does she prove the alleged trust, so far as the negroes are concerned. I think therefore that there is a failure to prove clearly and satisfactorily that this deed of March 20,1832, was made without any consideration. It ought not to be so regarded on this evidence given thirty-two years after the transaction, and in face of the fact that the deed recites that it was in consideration of |3,000.00.

It may be said however, that it is not absolutely necessary for the plaintiffs to prove that this deed was not made for a valuable consideration, and that though it was made for a valuable consideration, still if it can be shown distinctly that it was made on an express agreement between the grantor and grantee that the land should be held for the use of the grantor for life, remainder in fee for his children, this trust could, though proven by parol, be enforced in favor of the children, though not in favor of the grantor. We have seen there are authorities to sustain this position; but, as I have before shown, it is controverted by authorities equally respectable. I have considered it unnecessary in this case to decide which of these authorities should be followed, because in my judgment the evidence fails to establish clearly and explicitly that there was such a distinct agreement between the grantor and grantee ; and even if it had been much more clearly established that there was such an agreement, the lapse of time and conduct of the parties would in this case forbid the enforcement of such a parol trust, could it have been otherwise enforced. There is no witness who testifies to any such agreement. No witness is examined who was present when the deed was made, or when any agreement of any sort was made between the grantor or grantee, or who testifies to any conversation between them. The widow, it is true, testifies thirty-two years after the occurrence that she had often talked to her husband’s father about securing this farm for her children, and that he thought it best to have it deeded to him, and he could hold it for the children, and that the family could have the use of it, and shortly after such a conversation the deed was made. But if he paid a full consideration for the land, as the deed states he did, it would hardly be contended that this promise made to the wife, to hold it for her children, would be enforced by a court of equity. The utmost extent to which any court has ever gone has been, chat in such a case, if there was proven clearly to be an explicit contract between the grantor and grantee that it should be held for the use of third persons, such a trust would be enforced. It is very questionable whether even then it ought to be enforced.

But surely this evidence fails to establish clearly that there was any such distinct contract between the grantor and grantee. An effort was made to strengthen it by proof of loose conversations held long afterwards by the grantee with other parties. The substance of this evidence is set forth in the statement of the case which precedes this opinion. It is exceedingly unsatisfactory in its character, and taken altogether tends rather to prove that there was no agreement between the grantor and the grantee that the property should be held by the grantee ^01' the use °f the children of the grantor, but that he claimed to hold it as his own property, and that at one time he intended to devise it to the grantor’s children generally; that he afterwards changed his mind and intended to devise it to the son of the grantor, excluding all his other children, and finally concluded to devise it to a third party. And when this evidence is taken in connection with the fact that the grantee held this land for more than thirty years, that he leased it to third parties for long terms of years, collected the rents and never accounted for them and was never called upon to account for them, that he put improvements on the property, and in all respects acted during this long period of time as though he was the absolute owner of this farm, the conclusion seems irresistable that it would be contrary to all precedent to enforce a parol trust after such a lapse of time, unexplained, and when the evidence to sustain it was so slight and unsatisfactory.

The circuit judge who decided this case files with the papers this note: “The evidence relied upon by the complainants is scarcely sufficient, in my judgment, to warrant the court in holding in favor of their equitable claim and against the letter of the deed which they assail. The evidence to produce that result should be clear and unquestionable, not consisting of vague declarations of the grantor, testified by witnesses who can notin the nature of things give the exact language and all the circumstances under which it was used, and which comport with, an intention to make a particular disposition by devise rather than with a holding in trust for the benefit of given parties. I think the testimony here is too vague and indefinite, including that of Mrs. Steenrod, to warrant a decree for complainants. Phelps v. Seeley, 22 Gratt. 573. But however this may be, the lapse of time is a bar to the remedy sought. Considering the character of the evidence adduced, and the inability resulting from the death of the original parties and other witnesses to get at the true inwardness of the original transactions, and the consequent danger of injustice, I am constrained to hold that the claims of the complainants should not in this proceeding be enforced. Benjamin v. Clarke, 20 Gratt. 553.”

In these views I concur; and for the reasons I have assigned the decree of the circuit court of August 10, 1878, dismissing the bill oí the complainants at then-costs must be affirmed; and the appellees must recover oí the appellants their costs in this Court expended and $30.00 damages.

The Other Judges Concurred.

Decree Affirmed.