Blagg v. Sickle S.

• Decision Date: 21 February 1922
• Court: West Virginia Supreme Court
• Parties: B.. H. Blagg v. Gilbert Van Sickle et als.

90 W.Va. 351

B.. H. Blagg

v.Gilbert Van Sickle et als.

Supreme Court of Appeals of West Virginia.

Submitted February 14, 1922.

Decided February 21, 1922.

1. Frauds, Statute of One Admitting Contract for Sale of Real Estate Must Plead Statute.

Where one, who seeks to avoid the effect of a contract for the sale of real estate, admits by his pleading that such contract was made, he cannot have the benefit of the Statute of Frauds, unless he pleads and relies upon the same. (p. 356).

2. Same Executed Written Contract of Sale, Held for Future Delivery, or Delivered in Escrow, Held to Save Bar of Statute.

A contract in writing for the sale or transfer of real estate, or an interest in real estate, executed by the grantor, and held by him for future delivery, or delivered in escrow, is a sufficient memorandum in writing to save the same from the bar of the Statute of Frauds. (p. 356).

Appeal from Circuit Court, Mason County.

Action by B. H. Blagg, as administrator of the estate of Zachariah Van Sickle, deceased, against Gibert Van Sickle and others, in which the court decreed a conveyance to Robert Young and wife of a part of the real estate but denied them relief as to the remainder, and they appeal.

Reversed and, decree for appellants.

Wiley & Poling, for appellants.

Ritz, Judge:

This suit was instituted by the administrator of Zachariah Van Sickle for the purpose of converting his real estate into assets for the payment of debts. It resulted in cross pleadings between the heirs-at-law of Van Sickle and the defendants Robert Young and wife, by which the former sought to cancel a contract made by Zachariah Van Sickle in his lifetime for the transfer of his real estate to the latter, and by which the latter attempted to have said contract specifically executed, and the real estate conveyed to them. The court below decreed the conveyance to Young and his wife of a part of the real estate, but denied them relief as to the remainder, and they prosecute this appeal.

The plaintiff alleged in his bill that he had been duly appointed administrator of the estate of Zachariah Van Sickle; that said estate was largely indebted, and that there was not sufficient personal property with which to discharge such indebtedness; that Van Sickle died seized of a tract of about 31 acres of land situate in Mason county which he asked to have sold in order that assets might be provided for the payment of the debts. It was averred in the bill that the defendant Robert Young was making some claim to the land, for which reason he was made a defendant. The other defendants to the bill are the heirs-at-law of Zachariah Van Sickle. These heirs-at-law filed an answer to the bill in which they admit that the plaintiff was the duly qualified administrator of their ancestor's estate. They deny, however, that he was greatly indebted, and also deny that the personal property was insufficient to pay the debths, but assert that the same was not only sufficient, but was very largely in excess of any debts which their ancestor owed. After making this answer to the bill they made certain allegations against the defendants Robert M. Young and his wife, Lizzie Young, upon which they ask affirmative relief. They averred that Zachariah Van Sickle was possessed of 31 acres of land at the time of his death, but that during his lifetime the Youngs had procured a paper writing from him purporting to be a deed by which he conveyed to them about 21 acres of this land; that said paper writing has been duly recorded in the office of the clerk of the county court of Mason county, but they deny that the same is sufficient as a deed to convey the legal title. They further aver that in adddition to this contract in writing the Youngs claim to have another contract with their deceased ancestor by which they are holding the balance of the tract of land, as well as claiming the personal property of which he died seized. They allege that the Youngs contend that in consideration of their moving into the house with Zachariah Van Sickle sometime before his death, and taking care of him and providing for him, he agreed to convey to them at that time the 21 acres of land referred to in the paper writing, and at his death to give them the remainder of the land and all his personal property. The cross bill answer of the heirs-at-law avers that such contract was procured by undue influence upon the part of the Youngs, and further that the consideration which the Youngs agreed to give entirely failed; that they never took care of and provided for Zachariah Van Sickle as provided in the contract, for which reason it should be cancelled; and prays that the said contract in writing be cancelled and set aside, and that the other contract relied upon by the Youngs be declared to be void for the reasons aforesaid, and the Youngs precluded from setting up any claim whatever to the remainder of the land or to the personal property.

The Youngs answered the bill in this case, as well as the cross bill answer above referred to. They deny that the estate was indebted in any amount of money except funeral expenses, and that ample personal property went into the hands of the administrator to pay these funeral expenses. They deny the allegation in the cross bill of the heirs-at-law above referred to that they procured the contract by undue influence or fraud, and they assert emphatically that they fully carried out and performed all of the conditions upon their part to be performed, except that they were to pay the funeral expenses of Zachariah Van Sickle, but had not yet done so, owing to the fact that the administrator had seized the personal property which prevented them from securing funds to complete the payment of the same. They assert that the paper writing referred to in the cross bill, if not sufficient as a deed, is good as an executory contract, and ask that the same be specifically enforced, and that their contract with Zachariah Van Sickle, by which he agreed to give them all of his property at his death, in consideration of their taking care of him, be likewise specifi- cally enforced, and the title to the real estate conveyed to them, and all of the personal property turned over to them.

Upon the issue thus made the court referred the cause to a commissioner for the purpose of taking an account instead of first determining the rights of the parties under the pleadings. Considerable evidence was taken. No effort was made upon the part of the heirs-at-law of Zachariah Van Sickle to prove that any undue influence upon the part of the Youngs was exercised over their ancestor, and a very feeble effort was made to prove that the consideration for the contract set up and relied upon by the Youngs had failed. It is shown...