64 W. Va. 30 | W. Va. | 1908
Claiming the equitable title to a portion of his father’s estate in Logan county, under an alleged parol gift thereof, pursuant to which he had held possession of it for many years, and made improvements thereon, A.B. White has appealed from a decree, denying his alleged equitable title and appointing commissioners to make partition of the land, entered in a suit brought by other heirs of his ancestor. L. C. White, one of his brothers, was denied right of participation in the division, on the ground of an alleged advancement to him out of the ancestor’s land by a conveyance to him of a certain portion thereof, and he also appealed.
In consideration of $2,500.00, Anthony Lawson and wife, on the 16th day of April, 1879, conveyed to James H. White, the ancestor of the parties to this suit, several tracts of land in the county of Logan, possession of which the grantee seems to have had long prior to that date, under a very general description, by which’ they were located on Buffalo Creek, and retained a vendor’s lien to secure the payment of purchase money. On this land, the grantee reared a family of four sons and three daughters, A. B. White, Lewis C. White, J. N. White, F. M. White, Mary H. White, Minerva White, and Sarah White. Mary H. married L. A. Browning, Minerva married Oliver Riffe and Sarah married John Riffe.
The argument in support of the decree is predicated, for the most part, upon failure of proof of a parol gift and possession and expenditure of money under the same sufficient to take the case out of the statute of frauds; the contention being that the declarations of the ancestor to which the witnesses testify are too loose, indefinite and equivocal, viewed in the light of the situation of the parties, to indicate intention on his part to divest himself of the title; that the possession of himself and his son, A. B. White, was joint, and therefore in law, the possession of him who had the legal title; and that the improvements made upon the land, though valuable, were compensated by property and profits derived from the land.
The declarations relied upon are substantially as follows: J. M. Vance says J. M. White told him about the year 1872-73, while he resided with him as an employe, that he had given the home place to his son Becket (A. B. White,) and again, about the year 1880, when he visited him. Shortly before this last conversation, James M. White had married a second time. A. B. Burgess, about the year 1896, not long before the death of James M. White, went to purchase one hundred trees on the home place and was referred to A. B. White as the owner of the land, and a contract was executed between them under which he took the timber and presumably paid the purchase price to the son. C. L. Brown says he had more than one conversation with James M. White in which the latter told him he had given the land to his son. S. E. Ellis says he was.referred to A. B. White as the owner of the land when he called upon him to buy some of it, but he did not purchase for the reason that subsequently he obtained another piece of land from a different person. Floyd Mul-' len testifies to another similar transaction about two years before the death of James M. White, in the course of which he says White said: “There is Becket, whatever he does is all right.” John P. Vance says he heard White say at different times he intended to give his son, A. B. White, the home
The principles governing cases of this class have been well
Generally the significance of language, verbal or written, depends upon the situation of the parties, their prior and subsequent conduct, the nature of the subject matter, the purposes they had in view and all the surrounding facts and circumstances. It sometimes means more and sometimes less than the words employed signify in their usual and ordinary acceptation. If nothing is found in the surrounding circumstances, disclosing a different intention, words are carried into effect in the sense in which they are generally understood, but variation in meaning is frequently seen in the language of written instruments; and, in cases of parol contracts, the attendant facts and circumstances and the conduct of the parties are almost always given in evidence along with the express language, to aid in determining what it means, and this, whether the terms employed are technical or non-technical.
All the declarations of the ancestor, to which the witnesses in this cause have testified, are susceptible of a qualified meaning. Though he did say to one witness he had given the land to his son, to another, the land belonged to his son, to another, it no longer belonged to him, and, to another, he was making his home with his son, he may not have meant or intended all these expressions literally import. In seeking his intention, it is not only permissible, but necessary, to inquire whether the literal import of the words harmonizes with the intent reflected by the conduct of the parties, their actual relative status and the purposes indicated by their acts. The ancestor had not given the land in the full sense of the terms. If he had made a gift at all it was an incomplete, unexecuted gift. By the promise of a gift, he had merely induced his-,son to so alter his position and circum
In view of all this, the uncertain and equivocal character of those declarations, as well as that of the motive which led to the possession and improvement of the land, is manifest. The evidence falls far short of clear proof of intention, on the part of the father, to part with the title, and, on the part of the son,to acquire it. The possession of the latter and all improvements made by him', are consistent and accordant with an hypothesis entirely different from that of equitable title to the land, and the case falls clearly within the principles and reasoning of Holsberry v. Harris, 56 W. Va. 320, Miller v. Lorentz, 39 W. Va. 160, Gallagher v. Gallagher,
Under some of these decisions, lack of exclusive possession of the land claimed constitutes an insuperable obstacle to the establishment of title on the theory of part performance of a parol contract, taking the case out of the statute of frauds. Another serious difficulty arises, respecting the identity of the land. No line was ever run, in the lifetime of the ancestor, between the part of the land claimed by A. B. White and the portion given to his sister, Mrs. Browning, according to his contention, for which reason there is an element of uncertainty as to the quantity of land alleged to have been given. Miller v. Lorentz, cited.
The deed to L. C. White recites no consideration, moving to the grantor, and none has been proven. It was made at about the same time others were executed for the purpose of effecting advancements out of the estate, and we are of the opinion that the court did not err in holding the conveyance to have been an advancement and denying said White’s right of participation in the division. Conceding that he paid his brother for the land, the legal title was in the father. No conveyance had been made to the former, and no gift thereof to him is proven, except by the most remote and uncertain evidence. We are unable to see that he had an equitable title to dispose of. Besides this conveyance to L. C. White was practically contemporaneous with others, made to other •children confessedly by way of advancement.
It is insisted that the demurrer should have- been sustained because the bill alleges the death of two of the daughters after the death of the ancestor, and does not make the relicts of these women parties, since, under such circumstances, they would be entitled to estates by the curtesy in portions of the land. But the proof shows they died before their father did and so did not inherit any portion of his estate. We must assume that the court below would have allowed an amendment of the bill in this respect, on the hearing, if this variance had been brought to its attention, since such a simple amendment would plainly have wrought furtherance of substantial justice; and this Court may, in such a plain case, treat it as having been made. It may yet be made. It does not necessitate the bringing in of new parties
Perceiving no error in the decree, we affirm it, and remand the cause for further proceedings.
Affirmed. Remanded.