Averett v. Lipscombe

• Decision Date: 13 April 1882
• Citation: 76 Va. 404
• Parties: AVERETT, TRUSTEE, AND ALS. v. LIPSCOMBE.
• Court: Virginia Supreme Court

76 Va. 404

AVERETT, TRUSTEE, AND ALS. v. LIPSCOMBE.

Supreme Court of Appeals of Virginia.

April 13, 1882

Appeal from decree of hustings court of Danville in suit of Lelia Gray, Robert F. Gray, her husband, and W. P. Averett, her trustee, against John P. Lipscombe, to enforce specific performance of a purchase by him of the female plaintiff's real estate, made at auction on printed advertisement, signed by herself, husband and trustee. Court below dismissed the bill, and the plaintiffs appealed to this court. The facts and the grounds of defence are fully set forth in the opinion of the court.

Green & Miller and W. W. Henry, for appellants.

E E. Bouldin, for appellees.

OPINION

BURKS J.

This is the case of a bill filed by a married woman in conjunction with her husband and her trustee to enforce specific performance of a contract for the sale of her separate real estate. One of the grounds on which the purchaser resisted the execution of the contract was, that neither the wife, nor husband, nor trustee, nor any nor all of them combined, could make a good title to the property contracted to be sold; in other words, that the property was settled to the separate use of the wife without the power of alienation. The court below sustained that view, and upon that ground, and that only, as shown by the recitals of the decree and the opinion filed with it, dismissed the bill.

We have no doubt whatever that Mrs. Gray, in conjunction with her husband, had full power to sell and convey the property to the purchaser. A conveyance from them would transfer a good equitable title, and operate as an imperative direction to the trustee to hold the estate to the use of the purchaser and convey it as such purchaser might direct and appoint. " The true theory of her (the wife's) alienation," says Lord Chancellor Westbury, in the leading case of Taylor v. Meads, 34 Law Journal (U. S.), 203, " is, that any instrument, be it deed or writing, when signed by her, operates as a direction to the trustees to convey or hold the estate according to the new trust which is created by such direction. This is sufficient to convey the feme covert's equitable interest. When the trust thus created is clothed with the legal estate, the alienation is complete both at law and in equity."

The fourteenth paragraph of the will under which Mrs. Gray derives title, directs the property given and devised to her to be held by a guardian or trustee to be appointed by the court until she arrives at the age of twenty-one years or marries, and upon her marriage to be settled to her separate use, and that the trustee named in the will shall execute and declare for record such trust in reference to the property given as may be necessary to carry out the wishes of the testator in the premises. The directions as to the appointment of the trustee by the court and the declaration of trust on record were duly complied with.

Now this paragraph is the only part of the will relating to the trust, and it very plainly gives a separate estate without restriction on the power of alienation. It is conceded that negative words are not indispensable to impose restraint on the power. The intention to limit it may be implied, but, as has been often said, it must be clear. There is absolutely nothing in the paragraph referred to, or in the context, or indeed in any part of the will, from which such intention can be deduced. In the creation of the use, the operative words are, " shall be settled to the separate use of said girl so marrying, so that neither said property, or its proceeds, nor profits, shall be liable for the contracts or debts of her husband." The first branch of the sentence alone was sufficient to create a separate alienable estate. In Tullett v. Armstrong, 1 Beavan 1, so often cited with approbation by this court, Lord Langdale lays down the following as one of the rules deduced from the authorities: " If the gift be made for her [the wife's] sole and separate use, without more, she has, during the coverture, an alienable estate independent of her husband." It is very common, however, to add some such words as are found in the latter branch of the sentence, " so that neither said property, or its proceeds, nor profits, shall be liable for the contracts or debts of the husband." They are added ex abundanti cautela to exclude in terms the rights of the husband, not to limit the powers of the wife. As said by Lord Eldon, in Parkes v. White, 11 Ves. 222, in...