Sponaugle v. Warner
| Citation | 127 S.E. 403,98 W.Va. 532 |
| Decision Date | 24 March 1925 |
| Docket Number | 5169. |
| Parties | SPONAUGLE ET AL. v. WARNER ET AL. |
| Court | Supreme Court of West Virginia |
Submitted March 3, 1925.
Syllabus by the Court.
Points 2 and 3 of the syllabus of Farrar v. Goodwin et al., 126 S.E. 922, decided at this term, approved and applied.
Equity will enforce specific performance of a parol gift of land where made by a putative father for the benefit of his illegitimate children, and the donees have been put in possession of the land and improved it.
Appeal from Circuit Court, Pendleton County.
Suit by Ph be E. Sponaugle and others against Ellen Warner and others. From a decree dismissing plaintiffs' bill and dissolving a temporary injunction, they appeal. Reversed and remanded.
M. S Hodges, of Franklin, and L. J. Forman, of Petersburg, for appellants.
H. M Calhoun, of Franklin, and R. M. Hiner, of Moorefield, for appellees.
Ph be E. Sponaugle and eleven children instituted this suit in chancery in the circuit court of Pendleton county, setting up an equitable title to certain lands, and also title by virtue of being put in possession and placing certain improvements thereon, and asking for a restraining order to prohibit defendants from prosecuting a certain suit in unlawful entry and detainer. They come here on appeal from a decree of the lower court dismissing their bill and dissolving the temporary injunction.
John W Warner, during his lifetime, lived with his wife and family on a farm in Bland Hills, Pendleton county. Some 20 years ago he came into possession of a farm on the Hunting Ground, some miles distant. Shortly thereafter he moved Ph be E. Sponaugle, a woman by whom he had had several illegitimate children, and said children, upon the last-named farm, and practically gave them the complete use and control over the same. Four other illegitimate children were born to him by this woman after she was moved on the farm in question. Warner repeatedly made declarations to various of the plaintiffs, as well as other parties, that he intended to give the farm to the plaintiffs. Relying on these declarations the plaintiffs worked on the farm, remodelled the house thereon, redeemed much of the land from stones and brush, so that about five-sixths of this 62 1/2-acre tract is now in meadow, pasture, or under cultivation. D. A. Landes, a former county surveyor of Pendleton county, testified that several years before Warner's death, and while stopping at the Hunting Ground farm, he heard a conversation between Warner and one of his illegitimate sons concerning the planting of fruit trees on the Hunting Ground farm, in which Warner told said son "to plant more, and that the land was theirs"; and then, turning to him (Landes), said: "I want you some time to write them a deed for it." Soon after this Warner, having discovered a mistake in the calls of the deed under which he held, went to Landes, and asked him to make the correction, and to write a deed for the Hunting Ground farm to Ph be E. Sponaugle for life, and then in fee to her children. He put his deed to the farm in the hands of the surveyor for this purpose. At that time it was understood that the correction in the calls of the deed could be made from the field notes of the surveyor, who had made a survey of the land theretofore. However, on examination, it was found that the field notes did not contain the necessary information, and the surveyor, in conveying this information later to Warner, informed him that it would have to be resurveyed. Not having a compass at the time to do the work, his having been lost in a fire, the matter was delayed, and the work never completed. The old deed was still in Landes' possession at Warner's death in February, 1922. W. D. Simmons states that he heard Warner ask Landes at one time if he had made the deed "for the boys up there," and that Landes replied that he had not done so, for the reason that he had been unable to get the surveying done. This same witness states that in 1919 he proposed selling his farm to Warner, and that Warner replied, in effect:
"I will talk to the boys up on the mountain [plaintiffs], and, if they will agree to sell this [Hunting Ground] farm, we will sell it and buy this one [[Simmons' farm]."
And this witness further states that Warner at different times told him that he intended the plaintiffs to have the land; and at one time, when he asked Warner to have a telephone installed in the Hunting Ground farm home, that Warner replied that he would not, and that "the boys" would have to do that, as it belonged to them (plaintiffs).
John W. Warner, being well advanced in years, and also subject to "smothering spells," and the plaintiffs desiring something in writing as evidence that the land was theirs, Ezra T. Warner, one of them, went to his father, and talked the matter over, with the result that the following agreement was signed and delivered to said plaintiff:
"Article of agreement between John W. Warner and Ezra T. Warner in case of a accident to me.
John W. Warner at Bland Hills this agreement is to stand in law I want Phebie E. Sponaugle to have the Place Lying about five miles West of Circleville W.Va. and county of Pendleton on hunting Ground.
Which is now her home Place She is to hold this land as long as she lives and then it is to go to her heirs this day of Oct. 1, 1921. I set my hand and Seal to the above Statement.
J. W. Warner. [ Seal.]"
The validity of this instrument becomes material. It is admitted that the body of the agreement was written by Ezra T. Warner. The genuineness of the signature is challenged by the defendants. Sweeping aside the testimony of the lawful children, as well as the testimony of the illegitimate children, on this point, over which there is question raised as to its admissibility under section 23, chapter 130, Code, concerning transactions and communications with deceased persons, let the matter be determined by disinterested witnesses. Four experienced bank officials, who had many opportunities over a period of 10 to 20 years to become familiar with the writing and signature of John W. Warner, pronounced it genuine. A neighbor of Warner's, who had been postmaster and kept a grocery store for several years near the home of Warner, and had had opportunity to become acquainted with his handwriting, testified to like effect. William N. Nelson, an acquaintance of long standing, stated that in November, 1921, Warner made some reference to having disposed of the Hunting Ground farm to the Sponaugle heirs. This conversation so closely following the execution of the contested paper writing, is a circumstance tending to show that such a paper had in fact been executed. This evidence as to the signature, read in the light of the oft-repeated declarations of Warner to divers persons, heretofore referred to in this opinion, that he was going to give the Hunting Ground to the plaintiffs, and that he had given it to them, together with the undisputed fact that the said family was put in possession of said farm and allowed to remain thereon for a period of 20 years, is sufficient to establish the authenticity of the paper and signature. We are not unmindful, however, of the attempt made by the defendants to show that Ezra T. Warner was not at the home of John W. Warner on the date that the paper was executed. As to this fact there is conflicting testimony. Taking the testimony offered in support of the fact of his presence at the Warner home, and considering it in connection with that sustaining the execution of the contested paper, we are of opinion that the cont ention of the defendants is clearly overborne.
Before considering the effect of the written agreement and the questions raised in regard thereto, let us examine some of the controverted facts. The defendants, while admitting the relationship existing between Warner and the mother of his illegitimate children, and that she and her said children were placed in possession of the Hunting Ground farm, deny both that the possession was absolute, or that it was a gift. Declarations of Warner, implying ownership in himself, after he had placed the mother and children in possession thereof, are in the record. In Farrar v. Goodwin, 126 S.E. 922, decided by this court at the present term, the court said:
"While declarations of a donor after the fact against his own interest or title are ordinarily admissible in evidence against his heirs and devisees, his declarations in his own favor, inconsistent with the previous alleged gift, are incompetent as self-serving and therefore should be excluded." Depue v. Steber, 89 W.Va. 78, 108 S.E. 590; Jefferson v. Simpson, 83 W.Va. 274, 98 S.E. 212; Crothers v. Crothers, 40 W.Va. 169, 20 S.E. 927; Albright v. Albright, 153 Iowa 397, 133 N.W. 737.
They claim that the improvements made on the farm by the plaintiffs were of negligible value. In the case of Poullain v. Poullain, 76 Ga. 420, 4 S.E. 92, it is said that improvements made by the donee under an alleged parol gift of lands, although of slight value, are...
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