Boggs v. Boggs
| Decision Date | 11 May 1943 |
| Docket Number | 9429. |
| Citation | 25 S.E.2d 631,125 W.Va. 600 |
| Parties | BOGGS et al. v. BOGGS et al. |
| Court | West Virginia Supreme Court |
Van B. Hall, of Sutton, Eakle & Eakle, of Clay, and Blue, Dayton & Campbell, of Charleston, for appellants.
Hines & Davis, of Sutton, and Henry McLane, of Clay, for appellees.
RILEY President.
Plaintiffs Ed. L., J. B., Fred, Guy, A. S., C. A., and E. A. Boggs Sabina C. Mealy, Mary S. Hyer, Katie Ball and Ella Pembroke children and heirs at law of James M. Boggs, deceased, and Russell Y. Boggs and Earle L. Boggs, Trustees, filed their bill of complaint in the Circuit Court of Braxton County against Harry M. Boggs, son of said James M. Boggs, and Della Boggs, wife of Harry M. Boggs, for the purpose of impressing a trust upon the legal title to the surface of two tracts of land containing 761 acres and 50 acres, respectively, situate in Braxton County, in favor of all of the children of said decedent. Plaintiffs complain of a decree which dismissed their bill.
The land in controversy was the subject of a deed of conveyance dated February 2, 1933, wherein J. M. Boggs and Lidie B. Boggs, his wife, by deed of conveyance granted, with covenants of general warranty, the surface of the aforementioned tracts of land to his son, Harry M. Boggs. The conveyance was "in consideration of Two Thousand Dollars to be paid to said first parties within three years from this date, with interest,
payment to be made within said date or as fast as the land is disposed of by said second party." The grantors reserved a vendor's lien to secure the payment of the purchase money and interest on any unpaid part thereof.
J. M. Boggs died intestate in March, 1934; and plaintiffs, admitting that the deed upon its face appears to be absolute, contend that the facts and circumstances surrounding the execution and delivery of said deed and the admissible declarations of both J. M. Boggs, the grantor, and Harry M. Boggs, the grantee, establish by a clear preponderance of the evidence that the conveyance was in trust. Defendant, Harry M. Boggs, disputes such contention and avers in his answer that J. M. Boggs during his lifetime made advances both in money and real estate to his various children, and by way of advancement he gave defendant a farm, situate near the mouth of Big Otter Creek, which was not of a value equal to that in property and advancements given to the other children of J. M. Boggs, and that though the deed stated the consideration of two thousand dollars, it was the intention of the grantor in that conveyance to give defendant an amount sufficient to make defendant "even with the advancements theretofore made by him to his other children". Defendant asserts in his answer that he is bound and obligated to pay the purchase price of two thousand dollars, together with interest thereon.
The record discloses that James M. Boggs, whose age at the time of his death was ninety-two years, had been an unusually active man; that during his lifetime he had acquired and disposed of sundry parcels of real estate; and while, according to the facts adduced, on February 2, 1933, approximately one year before his death, he was in a weakened condition and his eyesight dim, he nevertheless prepared in his own handwriting the deed from himself and wife to his son, Harry M. Boggs. There is no dispute by plaintiffs of the grantee's testimony that he knew nothing of his father's intention to convey to him the parcels of land in question, until on February 12, 1933, when Harry M. Boggs, in response to a letter received by him from his father asking him to come to his home, did so, at which time his father delivered to him the deed for the property in controversy. According to the grantee, "Father had never said anything to me about what to do with this land more than to sell, and the deed said to sell and pay for it, he hadn't talked to me about the land neither before he deeded it or after".
C. A. Boggs, Ella Pembroke, Sabina Mealy, Katie Ball, and her husband, George W. Ball, testified that Harry M. Boggs had said the land had been conveyed to him in order to make sale of the land "for him to sell it for him", while defendant denies any such disclaimer. He relies upon the deed itself in assertion of his title thereto.
Russell Boggs, son of J. B. Boggs, testified that in a conversation between himself and Harry M. Boggs, the latter stated, in addition, that the land was deeded to him to sell, that J. M. Boggs was to give him one hundred acres on Coon Creek for selling the land described in said deed, and that when Harry told his father that he would rather have the camp (the fifty-acre tract described in said deed), J. M. Boggs responded, "You don't need a deed, you have already got a deed". Defendant's explanation of this testimony is that a portion of his farm had been taken for road purposes, occasioning severe damages to his property, for which, according to his opinion, he had not been amply compensated, and that by reason thereof defendant's father proposed to give him the sum of five hundred dollars, and in lieu thereof had proposed turning over to him the hundred acres of land. Defendant related that he told his father he would rather have the "fifty-acres where the camp was", than the larger tract of one hundred acres, and upon that occasion his father replied, "You have already got a deed for that". He denies that he told anyone that he was to have the one hundred acres for making sale of the land in controversy.
Plaintiffs introduced a letter from grantor to his daughter, Sabina C. Mealy, dated May 7, 1933, wherein he said in part: "I don't want you to worry about the Braxton lands I am managing those lands the best possible way to get the taxes cut down I put the upper Rock camp lands 811 acres in Harry Boggs hands to sell for me in order to get the assessment cut down to not more than $2,000.00." Plaintiffs likewise point to a lease dated September 1, 1933, whereby a portion of the land in controversy was leased to J. A. Williams, by written instrument prepared by J. M. Boggs, and executed by J. M. Boggs, together with Harry Boggs, and it is Williams' testimony that he paid the rent to J. M. Boggs "as long as he was living", and after his death he paid it to the son Harry. In support of his assertion that the land belongs to him, defendant likewise introduced a letter dated March 8, 1933, written by his father to him, in which the former writes about the sale of some land to one A. D. Hughes, and therein says in part: "He might take 100 acres of the hill land including the piece between Sherman Carr and Jennings Stewart if it takes your place on Rock camp to make the 100 acres ***", while in another portion of the letter he says, "He don't say where he wants the land you might sell him 100 acres taking 50 you get at mouth of Rock camp joining Stewart". In a second letter written by his father to defendant, dated March 19, 1933, he says, "Since you told me the land I sold you don't take any of this fine land on the hill I am of the opinion I had better not sell to Hughes ***."
Defendant admits that he proposed to the other heirs of J. M. Boggs his willingness to meet with the heirs and "take the deed and what letters and things I had, and go over this altogether, and then, after them hearing my side of it and all, if the majority of them--I even left it up to the majority of them--the majority of them wanted me to deed it back, I would do it".
There appears in the record a letter, dated January 13, 1941 directed to defendant, and signed by all of the heirs other than defendant, requesting that defendant convey to Russell Y. Boggs and Earle L. Boggs, Trustees, the two tracts of land, and stating that "it will be quite inconvenient for us to get together for" the purpose of having the heirs request a reconveyance of the property. Likewise there appears in the record, under date of January 26, 1937, a written demand on defendant, signed by the heirs other than defendant, demanding that he convey by proper deed the two tracts to Katie Ball, Trustee. A. S. Boggs, one of the heirs, testified that he asked Ed. L. Boggs, the administrator why he did not have a meeting and give "Harry an opportunity to show his side of the case that they might all have an understanding of the affair and settle it up amongst ourselves". This witness likewise testified that he told Ed. L. Boggs, when he brought the aforementioned letter of January 13, 1941, to him for his signature, that he said, "I didn't like to sign the letter, but if that is what all the family wanted done, why, I would put my name on the letter". ...
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