Bobbitt v. Bobbitt
| Decision Date | 13 May 1947 |
| Docket Number | C. C. No. 721. |
| Parties | BOBBITT et al. v. BOBBITT et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. A grantor in a deed, absolute on its face, executed prior to the effective date of the Code of 1931, conveying land, and reciting a cash consideration which was not paid, cannot establish for his benefit a parol trust in such land. Nor can such trust be established after his death for the benefit of those who claim under him.
2. Allegations in a bill of complaint, seeking to set up a parol trust in lands conveyed by a decedent that alleged trustees have paid to the heirs at law and distributees of decedent, after his death, certain sums of money, derived from the lands conveyed, the number of payments and the dates thereof not being alleged, are insufficient to establish a parol trust and create a substantive right which otherwise does not exist, though such payments may have a probative value on a hearing of the cause.
FOX President, dissenting.
Wysong & Wysong, of Webster Springs, for plaintiffs.
A N. Breckinridge and Ben P. Brown, Jr., both of Summersville for defendants.
The Circuit Court of Nicholas County, having sustained a demurrer to plaintiffs' bill of complaint, on its own motion certified the ruling to this Court.
This suit was instituted by W. C. Bobbitt, Mrs. W. D. Rollyson Mrs. William Rogers, E. F. Bobbitt, Mrs. Glen Fortney, Mrs. Harold G. Smith, children, heirs at law and distributees of A. W. Bobbitt, and W. C. Bobbitt, administrator of the estate of A. W. Bobbitt, who died intestate in April, 1943, plaintiffs, against L. O. Bobbitt and L. H. Bobbitt, defendants. L. H. Bobbitt is a brother of A. W. Bobbitt, and L. O. Bobbitt is a relative but the degree of relationship is not alleged.
On account of advanced age and disability, A. W. Bobbitt, who spent a portion of his time at the home of L. H. Bobbitt, could not attend to his business affairs, and, being indebted, conceived the idea of conveying certain portions of his real estate to defendants in trust for purposes to be hereinafter stated. Pursuant to that plan, he conveyed to defendants five tracts of land, aggregating two hundred eighty-one acres, more or less, and an undivided one-half interest in another tract of land of seventy-three acres, more or less, situate in Nicholas County, West Virginia. Certain reservations relative to coal, oil and gas were made by the grantor, but for the purposes of this opinion it is unnecessary to state the same in detail.
The above conveyance was dated, acknowledged and recorded on September 6, 1928, and recites a cash consideration of two thousand dollars, 'and for other valuable and valid considerations to be hereafter paid to the said party of the first part.' But plaintiffs allege that no cash consideration was, in fact, paid by defendants, and that the true consideration was an oral agreement by the terms of which L. H. Bobbitt and L. O. Bobbitt were to take and hold the legal title to the lands conveyed to them by A. W. Bobbitt in trust for A. W. Bobbitt; to make profitable sales of the land and pay the income from said sales to A. W. Bobbitt, as he needed or might demand the same; to pay the debts of A. W. Bobbitt; and to hold any unsold land in trust for the heirs of A. W. Bobbitt or for the benefit of his estate.
The deed of conveyance is absolute on its face, and there is no indication in the deed that the lands conveyed thereby were impressed with a trust, unless the 'other valuable and valid considerations' be considered as indicative thereof. Plaintiffs allege that the agreement created an oral trust, was fully understood and agreed to by defendants, and that such trust was the only consideration for the conveyance made by A. W. Bobbitt.
Defendants have made sales of timber standing on the land conveyed to them by A. W. Bobbitt, and have granted certain easements, rights and privileges located on and affecting said land, and have sold and conveyed various portions of such land, receiving as consideration for said sales and the grants of easements, rights and privileges above mentioned the aggregate sum of approximately $9,670. The allegations of the bill of complaint with reference to the consideration for a conveyance made by defendants to the Holcombs are somewhat obscure, but it is fairly clear that the consideration of four thousand dollars for that conveyance is correct, and such amount is incorporated in the foregoing aggregate sum.
Defendants, under the provisions of a grant or conveyance to Ralph H. Ely Lumber Company, were to receive as part of the consideration for said grant all ashes deposited on the land by the said company, manure from a barn operated by the lumber company, a mill-shed, as well as all other buildings, structures, dwelling houses, barns and shops erected on said land by said company, which were to be left on the land and become the property of defendants.
A. W. Bobbitt joined with defendants and their wives in making the first conveyance under date of September 1, 1929, but thereafter he did not join in any conveyance affecting the land he had conveyed to defendants.
Defendants now hold approximately thirty-five acres of land conveyed to them by A. W. Bobbitt, on which three tenant houses are located, and the rents therefrom are paid to defendants.
It is alleged that defendants have partially caried out the purposes of the trust and acted under the agreement made by them with A. W. Bobbitt 'in that they have paid to plaintiffs, as realized from sales subsequently made of said land and as hereinafter set forth, several payments of $100.00 each, * * *'. Plaintiffs aver that defendants have acknowledged the existence of a trust by the payments made by them, and that they are now estopped to deny that a trust was, in fact, created, as alleged in their bill.
Plaintiffs allege that the deed of conveyance made by A. W. Bobbitt was, in fact, a mortgage; that the land was held in trust by the defendants for the use and benefit of A. W. Bobbitt and his estate, as hereinabove stated; and that they are now entitled to an accounting for all the moneys paid to defendants as the purchase price of the lands and easements sold by them, for the value of the ashes and manure left on the land; for the value of the buildings, structures, dwelling houses, barns, shops and mill-shed erected on said land by the Ralph H. Ely Lumber Company; for all rents, issues, profits and royalties derived from said land while held by defendants, with interest on any sums owed to them by defendants. Plaintiffs further assert that they are entitled to a conveyance of the thirty-five-acre residue now held by defendants in trust.
W. C. Bobbitt, administrator, alleges that he cannot properly administer the estate of his deceased father until there is an accounting by defendants of their trusteeship.
The sufficiency of the bill is challenged and numerous reasons in support of the joint and separate demurrer thereto are assigned, but the trial chancellor certified certain controlling questions only, which may be stated as follows: Are the facts alleged in the bill of complaint sufficient: (a) To justify a decree holding that the deed from A. W. Bobbitt to defendants was a mortgage; (b) to support a decree declaring the land conveyed by A. W. Bobbitt to defendants to be impressed with a trust in favor of the grantor; (c) to permit the introduction of parol or other evidence establishing a trust as to said lands in favor of the heirs at law, distributees and the administrator of A. W. Bobbitt; and (d) to establish estoppel so that defendants by reason of their partial performance may not deny the existence of the trust?
It is a rule of general application that courts of equity will go far in allowing a deed, absolute on its face, conveying land, to be established as a mortgage; but this rule has its limitations, one of which is that there must be a debt owed by the grantor to the grantee which is not satisfied or extinguished by the conveyance. Ross v. Midelburg, W.Va., 42 S.E.2d 185; Gibson v. Hopkins, 80 W.Va. 756, 93 S.E. 826; Hursey v. Hursey, 56 W.Va. 148, 49 S.E. 367. Other circumstances and facts which must be proved to establish such a mortgage were discussed in detail by this Court in Vangilder v. Hoffman, et al., 22 W.Va. 1, and Gilchrist v. Beswick, 33 W.Va. 168, 10 S.E. 371. Although in the Vangilder and Gilchrist cases the Court had under consideration the question of proof, allegations and proof are so interrelated that the opinions in those cases are at least instructive as to what facts must be alleged in a bill of complaint to establish a mortgage, as is attempted in the instant case.
The bill of complaint in this case fails to disclose that A. W. Bobbitt owed L. H. Bobbitt and L. O. Bobbitt any debt; nor are any facts alleged therein from which the relationship of debtor and creditor may be inferred. None of the facts alluded to in the Vangilder and Gilchrist cases are alleged in the bill of complaint herein. We therefore conclude that the allegations of the bill of complaint herein are insufficient to warrant a holding that the deed of conveyance from A. W. Bobbitt to defendants was, in fact, a mortgage.
Since the adoption of the Code of 1931, a grantor making a conveyance of land, which is not fraudulent, may enforce a trust for his benefit with respect to said land, though the trust is not disclosed on the face of the conveyance, nor evidenced by any writing. Code, 36-1-4; Winfree v Dearth, 118 W.Va. 71, 188 S.E. 880. But this deed was executed on September 6, 1928, and Code, 36-1-4, is inapplicable. Hall v. Burns, 113 W.Va. 820, 169 S.E. 522. This leads to an inquiry into the law...
To continue reading
Request your trial