24 W. Va. 299 | W. Va. | 1884
The first error assigned by the appellant is that the circuit court erroneously overruled in its decree of October 31, 1878, the demurrer to the bill filed by the defendant, Jacob Wolf. The whole argument of the appellant’s counsel is based on the assumption, that Jacob Wolf and wife by their deed to the plaintiffs, Lewis Weinrich and Samuel Sinnett, had conveyed without warranty two undivided third parts of this tract of land of one thousand six hundred acres in controversy, which deed was duly recorded; and that subsequently thereto the said Wolf conveyed this tract of land to the heirs of Jacob H. Smith by a deed not recorded, for the purpose of cheating and defrauding the said Weinrich and Sinnett of the two thirds of said tract of land previously conveyed to them. It is argued that such subsequent deed is a mere nullity and can not throw a cloud even on the title of the plaintiff and Samuel Sinnett to said two undivided third parts of this tract of land which, as shown by the bill, had
It is only necessary to glance at the deed, as it is called, of Jacob Wolf and wife to Weinrich and Sinnett to see at once that it is no deed conveying to them the legal title to this land. It is a paper reciting in effect that 'Weinrich and Sin-nett had agreed to pay equal expenses on this tract of land with Wolf; that Wolf agreed to make them a deed for their portion of the land; and Weinrich and Sinnett desiring such deed to be made the said Wolf “makes such deed to the undivided tract of land containing one thousand six hundred acres, of which Jacob Wolf makes said Weinrich and Sin-nett a quit-claim deed for two thirds of this one thousand six hundred acres of land” (describing it.) And then this so called deed closes: “To have and to hold the interest as aforesaid to the said Samuel Sinnett and Lewis Weinrich if not redeemed. As witness our hands and seals.” The hands and seals of Jacob Wolf and wife are appended. It is obvious that no one can convey a tract of land by simply declaring under his hand and seal that he makes a deed to the tract of land. The most that can be made of sucb a paper is that it is an acknowledgment, that the parties, to whom it is thus declared that a deed had been made, have an equitable title
The circuit court did not err in its next decree of May 4, 1880, in which it held “that the deed made by Jacob Wolf to the heirs-at-law of Jacob H. Smith on October 19, 1876, by which said Wolf conveys to the said heirs-at-law all the title he obtained at the tax-sale to the said tract of sixteen hundred acres of land in the bill and proceedings mentioned, is not fraudulent as to the said plaintiff and the said Samuel Sinnett as charged in the bill of complaint in this cause, hut the said deed is bona fide and made in accordance with the terms and provisions, reservations and conditions of the contract between Jacob Wolf, Lewis Weinrich and Samuel Sinnett as already appears by the evidence in this cause, and therefore it is adjudged, ordered and decreed that the said deed of October 18, 1876, by said Jacob Wolf to the said heirs of Jacob H. Smith, deceased, be and the same is declared valid and binding for the purpose of transferring the title which the said Wolf by his tax-deed obtained to said one thousand six hundred acres of laud as in the bill and
The language of the coutract is that all of said parties “do grant unto the children or lawful heirs of Jacob H. Smith the right of redemption of this tract of land provided the same land is redeemed by the lawful heirs of Jacob II. Smith, deceased, as provided by law for the redemption of such tract.” Row it would seem from the writing of this contract that some rights of redemption were understood by all the parties to belong to the heirs of Jacob II. Smith beyond what was conferred on them by the law; for this right of redemption, -whatever it was, is called expressly a grant or favor to these heirs, and of course it could not he so called, if it was only the right, which the law conferred on them. And as the parol proof shows, that according to the contract made by Jacob Wolf with these heirs they were to be allowed an indefinite time, in which to redeem the land, and that it was expressly understood between Jacob Wolf and them, that whenever they chose, they could redeem the land, and as it is further proven that the other parties to this contract, Sinnett and Weinrich, were, when they made it, informed of this agreement with the heirs of Jacob II. Smith, which had been made by Wolf, there can be no doubt, that this was the understanding of all parties and the true meaning of this contract of January 1, 1870. This was obviously the meaning of what is called the deed of September 20, 1876, by Jacob Wolf.and wife to the plaintiff', Wein-
But though the first part of this contract of January 1, 1870, is worded as a contract with the heirs of Jacob H. Smith, yet the parol evidence shows that it was not, and that they never knew of the existence of such contract, till after the deed for this tract of land as redeemed was made to them by Wolf, October 19, 1876, though they are presumed to have had notice of some contract on this subject between these parties after January 29, 1877, as this so-called deed of September 20, 1876, was then recorded, and it shows some agreement to have existed but does not disclose its character. It is clear therefore, as the circuit court held, that the plaintiff, Weinrich, and also Sinnett had notice of the previous equity of the heirs of Smith to redeem this land at any time, and that they made their contract with Wolf subject to this equitable right. But even had it been otherwise, in this case it would make no difference, as the heirs of Jacob H. Smith got from Jacob Wolf a conveyance of this one thousand six hundred acres of land on October 19,1876, in ignorance of any claim to an equitable title to this land in the plaintiff, Weinrich, and in Sinnett. If they were right in saying that their contract gave them an equitable title to this tract of land and even if they had no notice of the previous equitable rights of the heirs of Smith, or if these heirs had no previous equity, still the deed to them would not be set aside, because it was on their part a bona fide deed made to them for a valuable consideration without any notice that the plaintiff, Weinrich, or Sinnett claimed any equitable interest in the land conveyed. The evidence, which we have stated, shows also other reasons, why Weinrich, the plaintiff, could not in equity ask that this deed to the heirs of Jacob II. Smith should be set aside. But it is deemed unnecessary to point them out, as it is clear that the court did not err in refusing to set aside this deed.
The circuit court did not err in its decree of May 4, 1880,
The appellant’s counsel take the position, that any respon
The following cases are referred to by the appellant’s counsel to show, that, if their was any liability on the part of the appellant, Wolf, to the plaintiff by reason of his not having accounted for this redemption-money or settled in any manner with the plaintiff, a court of equity has no jurisdiction: Sarbess, Adm’r, v. McClintic et al., 10 W. Va. 236; Petty v. Fogle, 16 W. Va. 497; Lefevere v. Billmire, 5 W. Va. 33; Starks v. Sikes, 8 Gray 609.
The first of these eases was a case of personal property, which was left in pledge and converted by the pledgee to his own use. The purpose for which it was pledged having ceased to exist, this Court held that a simple action of trust for the improper conversion of this personal property was a full and complete remedy for the wrong, and the pledgeor could not in such a case bring a suit in equity to make the pledgee pay the value of this personal property. This decision was clearly right; but it has no resemblance to the case before us.
The case in 16 W. Va., p. 497, was a casé, where a suit was brought based on a written contract, which could give
The case in 5 W. Va. 33, was a bill brought by a sheriff against his deputy charging a deficiency in the settlement of his accounts; and a demurrer to the bill was sustained. There is no resemblance between that case and the one before us. But the principles laid down in the syllabus in that case were stated in point three of the syllabus in the case in 16 W. Va. as in the general correct. Still this did not embrace all eases as to matters of account, in which equity should or should not take jurisdiction.
The casein 8 Gray 609 was simply that a co-tenant has a right to recover in an action of assumpsit his portion of money received from an insurance company for property on their common lease which was burned.. There was no sort of an account to be settled between the plaintift’ and defendant; and the case throws no light on the case before us.
The cases seem to me to throw but little light on the subject. It seems to me the real ground for the jurisdiction of a court of equity is that in this case Wolf held to the plaintift and Simiett the relation of trustee. It was a case, where by agreement the conveyance was made to one and the consideration was to be paid by them. In such case the one, who- has the legal title, stands as trustee for the others, and because ot his occupying this relation, if by agreement he controls or disposes of the property, can be held to an account by the others or either of them in a court of equity and may there be compelled to settle his account arising solely out of his position as such trustee. This trust, of which Jacob Wolf was trustee, is what is known as an express active trust. In such cases the cestuis que trust have a right in a court of equity to hold their trustee to a settlement of all his transactions; and I see no reason why the express active trust created in this case should be an exception to the general rule.
“State oe West Yieginia,
“Ritchie Oouhty, Township oe Muephy,
“January 7, 1880.
“We, Jacob Wolf, Lewis Weinrich and Samuel Sinuett, has made a generóle settlement of all county and State tax on the Smith estate from the year 1866 to 1869 and the school receipts for the years 1867, 1868 and 1869 which settlement amounts to forty-five dollars and five cents each up to January 7, 1870.”
This is signed by Sinnett and Wolf first and then by Weinrich, with whom it was left, and by whom it was .produced. Sinnett says it was left with him, because he and Wolf had receipts for what they had paid given when paid, and as Lewis Weinrich had paid nothing, and that day paid his share to the other two, so that with what had been paid by them, deducting what they then received, the payment of each of them was made the same as that which Lewis Wein-
To understand the sixth exception to the commissioner’s report wo must clearly comprehend the principles, on which the report is based. In the first place the law, when this sale was made, required the land-owner, when he redeemed the land, to pay at the rate of twenty per cent, per annum, on the moneys Avliich had been paid out by the purchaser at the tax-sale. This remained the law, till the Code of 1868 was passed; and when it took effect, April 1, 1869, the rate was reduced to twelve cent, per annum. If this redemption of the land had been made by Smith’s heirs at this rate, they ought to have paid to Wolf instead of five hundred and fifty dollars the sum of nine lmudred and four dollars and fifty-six cents. (See statement of commissioner’s report.) And if each ot these parties, Sinnett, Weinrich and Wolf, had received his portion of this nine hundred and four dollars and fifty-six cents by each of them receiving this rate on the moneys he had paid, Sinnett would have received two hundred and seventy-nine dollars and seven cents, Weinrich two hundred and twenty-one dollars and fifty-four cents and Wolf four hundred and three dollars and ninety-five cents. It might perhaps have been well insisted, that Wolf ought-not to have made a deed for this land, till he had received from Smith’s heirs nine hundred and four dollars and fifty-six cents, and that Weinrich and Sinnett had aright to charge
If these calculations were made, it would be found that the aggregate amount, which Wolf would have to pay to Weinrich and Sinnett, would exceed by a small amount, what he would have to pay according to the calculation as made by-the commissioner. The principle difference would be not in the aggregate, which Wolf would have to pay, but in the proportion, in which it would be paid to Sinnett and Weinrich. These results are ascertained by making these calculations roughly, and they might have been anticipated without the making of the calculation at all. For if the commissioner allowed to each one of these parties interest exceeding six per cent, and charged each of them with interest to the like extent exceeding six per cent, the result, we might expect, would benefit Wolf, who was charged this large interest on the amount of taxes paid by Weinrich and Sinnett aggregating two hundred and seventy-five dollars and eighty-six cents, and was allowed this large interest on the amount of taxes and expenses amounting to two hundred and sixty-nine dollars and > sixty-eight cents, the difference in the two amounts being only six dollars and eighteen cents against Wolf and this was more than made up by Wolf getting the large rate, twenty per cent, per annum, or a larger amount than the others got this large rate upon. But the result, so far
In the first part of the sixth exception Wolf objects to his being charged interest at the rate of twenty per cent, per annum on the purchase-money of five hundred and fifty dollars; and this complaint is repeated in the eighth exception. There is no ground for this first portion of the sixth exception and this eighth exception; for Wolf is only charged six per cent, on this five hundred and fifty dollars from October 19, 187G, when he received the last of it. lie ought to have been charged six per cent, from the time ho received each part of it, which would have increased the amount he would have been charged with. The second part of the sixth exception based on the commissioner’s allowing this twenty and twelve per cent, on the taxes paid is, as wo have seen, wrong but not prejudicial to Wolf but rather beneficial to him, as he was allowed the same rates on taxes paid, and he paid more than either of the others. The others do not complain of this in this Court; nor could they do so, as they did not except to the report.
The seventh and ninth exceptions were also properly overruled; for Wolf, as we have seen, occupied the position of trustee to Weinrich and Sinnott and was bound to account without any demand being made upon him.
The commissioner’s report having in it no errors prejudicial to Wolf, and he being the only party, who filed any exceptions to it, the court properly overruled his exceptions and confirmed the report; and the decree of June 24, 1881, based upon this report must be affirmed; and the appellees must recover of the appellant their costs in this Court expended and damages according to law.
Affirmed.