Woodward v. Sibert, 82 Va. 441

Woodward v. Sibert

82 Va. 441 | Va. | 1886

Lewis, P.

(after stating the case), delivered the opinion.

The case lies within a narrow compass, and may be briefly disposed of. The question is, whether the defendant, Mary B. Brown, has a beneficial interest in the land decreed to be sold, which is subject to the lien of the plaintiff’s judgment; and we are of opinion that she has.

The appellants contend that although the deed from Koontz conveyed the land to Bernard S. and Mary B. Brown absolutely, yet the land was fully paid for with assets of the estate of their intestate, and,( consequently, was held by them upon a resulting trust for that estate. But this position is not sup*445ported by the proofs in the record. Indeed, the evidence shows the contrary. It shows that when the land was purchased, in 1862, there was a balance due upon it by Koontz to Sibert, which the Browns in a written contract assumed to pay; and this is not disputed. It also shows that for this balance the Browns executed their bond or bonds to Sibert, who thereupon surrendered Koontz’s notes held by him for the debt thus assumed. It appears that the deed from Sibert to Koontz was destroyed during the war, and it does not appear whether a lien for the purchase money was reserved in the deed, or whether other security for its payment was taken or not;- nor is it material to the purposes of the present case. It is certain that a balance was due by Koontz on the land, and that the payment of this balance was assumed by the Browns.

Hence, if the debt thus assumed has not been paid, it follows that to that extent at least the land has not been paid for, and no question as to a resulting trust arises in the case.

The simple question, then, is whether the Sibert debt was the consideration for the note upon which the judgment was obtained. And, so far as the defendant, Mary B. Brown, is concerned, that question is no longer an open one; for in the bill of exceptions taken by her in the progress of the trial of the action at law in which the judgment was recovered, it is certified as one of the facts proven, that such was the consideration upon which the note was founded; and, undoubtedly, she is now concluded by the record in that case. Besides, the fact is established by the proofs in the present case.

The evidence for the plaintiff is positive and unequivocal that the note was given in lieu of a' bond previously executed by the Browns to Sibert for the purchase money due by Koontz, and was made payable to the plaintiff at Sibert’s direction. The testimony of the witness, Mrs. Alpha Hite, is very emphatic on this point. She testifies that she saw and read the bond in *446lieu of which, the note was given, and that the note was delivered to the plaintiff, on the day of its date, by Bernard S. Brown in the presence of John Sibert and herself.

There is an entire absence of proof to show that there was ever any other joint transaction between the Browns and John Sibert, or the plaintiff, Catherine Sibert, than that relating to the debt due by Koontz. And it is not probable that if the note had been given for a consideration other than that debt, the defendants would be unable to prove it.

It is certainly not shown by the evidence in this case, although much testimony was taken by the defendants. And it is hardly necessary to say that the burden is upon them to clearly show the fact if such exists; or, in other words, to establish the resulting trust upon which they rely to defeat the plaintiff’s right to a decree.

The cases uniformly hold that, to establish a resulting trust by parol proof, the facts and circumstances out of which it arises must be proved with great clearness and certainty. Or, as has. been repeatedly declared by this court, “ where the trust does not arise upon the face of the deed, but is raised upon the payment of the purchase money, which creates a trust which is to override the deed, the proof must be very clear, and mere parol evidence ought to be received with great caution.” Bank of United States v. Carrington, 7 Leigh, 566; Miller v. Blose, 30 Gratt. 744; Sinclair v. Sinclair, 79 Va. 40, and cases cited.

The defendants in their proofs have not fulfilled the requirements of this rule. To maintain the issue on their part, they examined, amongst other witnesses, John Koontz, the vendor of the land, Matilda Koontz, his wife, David Sibert, a son of John Sibert, and a step-son of the plaintiff, and Mrs. Kennie Sibert. These witnesses, since the year 1869, residents of Missouri, formerly resided in or near the village of Bridgewater.

*447The first testifies that he knows nothing whatever of the note in question. He also testifies that the Browns paid the balance of the purchase money due by him to Sibert, the payments which they assumed, and says it was paid “in money and good due paper.” But which “paper” he does not say; and for aught he does say, it may have been the bond of the Browns, in lieu of which the note in question was given.

The testimony of Mrs. Koontz is to the same effect.

The witness, David Sibert, who, like his sister, Mr. Koontz, shows in his deposition no partiality for his step-mother, the plaintiff, testifies that, according to the best of his recollection, Koontz himself paid in full the balance of purchase money due by him to John Sibert sometime after he sold the land in 1862. But such was not the fact, as is shown by the evidence on both sides.

Mrs. Kennie Sibert, wife of David Sibert, testifies that on one occasion, in the fall of 1867, a few months prior to his death, she heard John Sibert remark that “hehad received his last payment on the farm ”; which may have been true. For the debt assumed by the Browns amounted to about $3,700, and the note afterwards given by them for the balance due at that time—to wit, $3,390.37—was made payable to the plaintiff. So that, waiving any objection to the evidence on the ground that it is hearsay, the remark is not inconsistent with the plaintiff’s pretensions.

The defendant, Mary A. Brown, now Mrs. Woodward, the female appellant, was examined as a witness, and she testifies in general terms that the land was paid for with assets of her father’s estate. But the -main ground upon which her statement is founded, as given by her, is, that her brother, Bernard S. Brown, said on his death-bed the land was paid for. The remark, however, was not made in the presence of the plaintiff, and is not evidence against her, and if it were, it would fall far short of proving with the requisite certainty that the land *448was paid for with assets of the estafe, notwithstanding the proof is that, independent of their respective interests in the estate, neither Bernard S. nor Mary B. Brown had any means of their own whatever; for non constat, if the land was paid for, the money paid was not derived from another source. The fact is, the witness, at the time of the transaction, was an infant of tender years, and has no personal knowledge on the subject.

There is other evidence in the case, but it is unnecessary to review it, as it does not at all affect the result.

The charge made in the cross-bill that the consideration for the note was a debt due by Phares to Sibert, payment of which had been assumed by Bernard S. Brown, is denied by the plaintiff in her answer to the cross-bill, and is not supported by satisfactory evidence.

Nor is the plaintiff’s right to subject the land affected by the commissioner’s deed conveying it to Mary A. Brown, under a decree in the suit of Brown against Brown’s administratrix et als. The object of that suit was a settlement and partition of the estate of Allen W. Brown, deceased, to which, it is true, all creditors of the estate had a right to become parties. But the plaintiff in the present suit was not a creditor of Allen W. Brown’s estate, nor was she a party to that suit, and the decree under which the deed 'was made was rendered during the pendency of the present suit, and long after the plaintiff in that suit—to wit, the said Mary A. Brown—had been made a defendant in this. So that it is clear the latter took the land subject to the result of the present suit, in which the question as to-the interest of her mother, Mrs. Mary B. Brown, in the land was directly involved.

This sufficiently disposes of the case, and renders it unnecessary to consider other questions discussed by counsel. The decree of the circuit court must, therefore, be affirmed.

Decree affirmed.