Annon v. Lucas

• Decision Date: 06 December 1971
• Docket Number: No. 12980,12980
• Citation: 155 W.Va. 368,185 S.E.2d 343
• Court: West Virginia Supreme Court
• Parties: Woodrow W. ANNON v. David F. LUCAS, Sheriff, etc., et al.

Page 343

185 S.E.2d 343

155 W.Va. 368

Woodrow W. ANNON v. David F. LUCAS, Sheriff, etc., et al.

No. 12980.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1971.

Decided Nov. 9, 1971.

Dissenting Opinion Dec. 6, 1971.

Syllabus by the Court

1. The general rule in cases of anticipatory breach of contract is that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue any of three remedies: he may treat the contract as rescinded and recover on quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times ready and able to perform, and at the end of the time specified in the contract for performance, sue and recover under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized, if he had not been prevented from performing.

2. When an action is brought after the time fixed by an executory contract for the beginning of performance by a party who has committed an anticipatory breach, the period of limitations runs not from the time of such breach but from the time fixed for performance by the defaulting party.

3. 'A party whose property has been appropriated by another may in equity follow and secure such property, either in its original or in any changed or different form, and this right to so follow and secure it extends to the property either in its original or any altered form in the hands of a third party, where it appears that such third party took it with notice of the fact that it had been improperly appropriated.' Point 1, syllabus, Williams v. McCarty, 82 W.Va. 158 (95 S.E. 638).

4. 'Where a person appropriates or improperly employs for his own use the property of another, he may be dealt with as a trustee for such other. A constructive trust is imposed by equity as a means of effecting an equitable adjustment.' Point 1, syllabus, Carleton Mining & Power Company v. West Virginia Northern Railroad Company, 113 W.Va. 20 (166 S.E. 536).

5. 'It is a fundamental rule of the common law that no man shall be permitted to profit by his own wrong, and it is a settled expedient of equity to impress a constructive trust on whoever acquires property rights by the commission of a wrong to hold the same as a trustee for the one equitably entitled thereto.' Point 2, syllabus, State v. Phoenix Mutual Life Insurance Company, 114 W.Va. 109 (170 S.E. 909).

6. A promisor in a written agreement for the sale and conveyance of land who holds money representing the purchase price of the land conveyed by him to a person other than the promisee in violation of the agreement in which the promisor agreed to sell and convey the land to the promisee in consideration of a home and the necessaries of life to be furnished by the promisee during the remainder of the life of the promisor, holds the money as a trustee for the benefit of the promisee and such money in the hands of the promisor or his personal representative, heir or beneficiary of his estate, not being a purchaser for value without notice, is subject to a constructive trust in favor of the promisee which may be enforced by him in an action for that purpose; and such action instituted within one year and six months from the death of the promisor and within three days of the death of his personal representative, is not barred by laches.

Steptoe & Johnson, Ernest C. Swiger, Patrick D. Deem, Clarksburg, for appellant.

Herschel Rose, Dominick J. Romino, Roderick A. Devison, Fairmont, for appellees.

HAYMOND, Judge.

This is a civil action instituted in the Circuit Court of Taylor County, April 22, 1967, in which the plaintiff, Woodrow W. Annon, seeks a recovery from the defendants, David F. Lucas, Sheriff of Taylor County, West Virginia, administrator de bonis non, cum testamento annexo of the estate of James M. Annon, deceased, and Silas Kirk, executor of the estate of Walter H. Annon, deceased, for breach of a written agreement dated May 13, 1949 for the sale and conveyance to the plaintiff by James M. Annon of a certain farm of 131 1/2 acres owned by him in Bethlehem Township, Coshocton County, Ohio, in consideration of the promise of the plaintiff to furnish to James M. Annon a home and the necessaries of life from March 31, 1949 until the death of James M. Annon which occurred November 30, 1965; to cancel and set aside the will of James M. Annon; and to impress a constructive trust upon the proceeds of sale of the 131 1/2 acre farm made by James M. Annon to an unnamed third party, October 27, 1952 which, less some expenditures of unnamed amounts, were at the time of the institution of this action in an account in a bank in Coshocton, Ohio, in the name of Walter H. Annon personally assessts to be administered by the defendant Kirk, as Executor of the estate of Walter H. Annon.

The plaintiff filed an original complaint, an amended complaint and a second amended complaint. The defendant, David F. Lucas, Sheriff, administrator de bonis non, cum testamento annexo of the estate of James M. Annon, has made no appearance and offered no defense in the action, but the defendants, Silas Kirk, executor of the estate of Walter H. Annon, and Gladys Stanley, sometimes referred to as the defendants, filed separate answers to the second amended complaint and in each answer moved to dismiss the action for failure to state a claim upon which relief can be granted in this action.

Upon the foregoing pleadings, the circuit court sustained the motion to dismiss and by final judgment rendered September 15, 1969, dismissed the action at the cost of the plaintiff on the stated grounds that the plaintiff had an adequate remedy at law and that the claim of the plaintiff was barred by laches. Upon the application of the plaintiff this Court granted this appeal July 6, 1970, and on September 21, 1971, the case was submitted for decision upon the record, the printed briefs, and the oral arguments of the attorney for the plaintiff and the attorneys for the defendants, Silas Kirk, executor of the estate of Walter H. Annon, and Gladys Stanley.

The second amended complaint alleges, and the answers of the last named defendants admit, these facts. The plaintiff is the son of Walter H. Annon, deceased. On October 27, 1952, James M. Annon sold to a person other than the plaintiff the 131 1/2 acre farm in Bethlehem Township, Coshocton County, Ohio, and collected from the purchaser the money paid for the farm. By his will, dated April 14, 1950 and admitted to probate January 14, 1966 in the County Court of Taylor County, West Virginia, James M. Annon bequeathed and devised his property to Walter H. Annon and his wife, Irene H. Annon. Irene H. Annon died intestate leaving surviving her Gladys Stanley, her daughter and only heir and distributee. Walter H. Annon qualified as the executor of the estate of James M. Annon on January 19, 1966, and as executor paid funeral bills, medical bills, taxes and other debts of James M. Annon. On April 19, 1967, Walter H. Annon died and Silas Kirk was duly appointed Executor of his estate. On June 26, 1969, David F. Lucas, Sheriff of Taylor County, was appointed administrator de bonis non, cum testamento annexo of the estate of James M. Annon in the place and stead of Walter H. Annon as executor of the estate of James M. Annon.

It also appears from the allegations of the second amended complaint, which on motion to dismiss, as on demurrer, are taken to be true not only as to the facts expressly stated but also as to all facts that can be implied from those alleged by reasonable or fair intendment, that the plaintiff entered into a written agreement with James M. Annon dated May 13, 1949, at Coshocton Ohio, by which James M. Annon, in consideration that the plaintiff furnish to James M. Annon a home and the necessaries of life required by him for the remainder of his life, agreed and did sell, transfer and convey unto the plaintiff a certain farm of 131 1/2 acres, owned by James M. Annon, situate in Bethlehem Township, Coshocton County, Ohio, together with all the stock and equipment on the farm, and that the plaintiff performed the promises set forth in the agreement and furnished to James M. Annon a home and the necessaries of life from March 13, 1949 until the death of James M. Annon which occurred November 30, 1965.

It further appears from the allegations of the second amended complaint that on October 27, 1952, James M. Annon sold and conveyed the 131 1/2 acre farm to a third party and collected the purchase money for the farm and deposited the money in a savings account in the Coshocton National Bank and expended a part of the money during his lifetime; that Walter H. Annon, as executor of the estate of James M. Annon, transferred the purchase money into another account in that bank in his name as the executor of the estate of James M. Annon, and as executor, paid the funeral bills, medical bills and taxes, and other debts of James M. Annon from the money so deposited and subsequently transferred the money in that bank to his personal account. Before final settlement of the estate of James M. Annon, Walter H. Annon died April 19, 1967, and Silas Kirk was appointed executor of the estate of Walter H. Annon, and has received, or will receive, the money deposited in the Coshocton National Bank as an asset of the estate of Walter H. Annon.

The agreement upon which the plaintiff relies and for the breach of which by James M. Annon, in conveying the 131 1/2 acre farm to a person other than the plaintiff and failing and refusing to vest the plaintiff with the ownership and possession of the farm at or before his death, the plaintiff seeks to impress a trust upon the proceeds of the sale of the farm in the possession of Silas Kirk, executor of the estate of Walter H. Annon, deceased, is expressed in these words:

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