Bowie v. Poor School Soc. of Westmoreland County

• Decision Date: 17 February 1881
• Citation: 75 Va. 300
• Parties: BOWIE v. POOR SCHOOL SOCIETY OF WESTMORELAND AND ALS.
• Court: Virginia Supreme Court

75 Va. 300

BOWIE v. POOR SCHOOL SOCIETY OF WESTMORELAND AND ALS.

Supreme Court of Appeals of Virginia.

February 17, 1881

1. A deed of trust is given to secure a debt, which is not evidenced by any instrument under seal, and there is no undertaking to pay the debt in the deed. HELD: That though the remedy at law may be barred by the act of limitations the debt is not thereby extinguished, but the lien of the mortgage continues, and is not affected by any lapse of time short of a period sufficient to raise a presumption of payment.

2. A deed of trust, which is duly recorded, provides for the continued possession of the grantor, and for his taking the rents and profits of the property until the creditor should direct a sale after demand of payment. The possession of the grantor and purchasers from and under him cannot be adversary to the title of the trustee or prejudicial to the rights of the trust creditor unless it becomes actually adverse and hostile by acts of disclaimer open and notorious brought to the knowledge of such creditor or his trustee.

3. A deed of trust to secure a debt is made and recorded in June 1841. There have been repeated sales of the land since, by the grantor and those claiming under him; and the purchasers have had no actual notice of the deed of trust down to 1876. HELD: That the presumption of payment from the lapse of time is repelled by the circumstances proved in the cause.

This was a bill by Walter Bowie, filed in May, 1876, to enjoin the sale of a tract of land called Katon Point, in the county of Westmoreland, under a deed of trust executed the 12th day of June, 1841, and recorded the 24th, by which Robert Murphy and Eliza R., his wife, conveyed to William Hutt the said land in trust to secure the sum of $1,543.34, which the said Murphy had borrowed from the Westmoreland Poor School Society, a body incorporated in 1813. The bill charges that he and those under whom he claims have had actual adversary possession of the said land from the 26th of September, 1843, until the filing of the bill, without actual notice of the deed of trust. That the loan secured by the deed of trust was a simple contract debt; and he prays the benefit of the statute of limitations.

The bill further sets out that Robert Murphy died in April, 1847 and that at a meeting of the board of trustees of the said society on the 18th of April, 1851, on motion of Willoughby Newton, his executor, the estate of Robert Murphy was ordered to be released from $800 of said debt on the condition that Robert H. Chewning should execute a deed of trust to said board, securing the said sum of $800 on real estate; and this was done, and approved and accepted by the board. That at a meeting of said trustees on the 25th of September, 1871, it was ordered, on motion of said Newton, that $386.52, part of the debt due by said Murphy, be transferred to James Templeman, on condition that he execute a deed of trust on real estate purchased of said Newton, as executor of said Murphy, the said Newton agreeing to make said Templeman a good title to said real estate. And further, that one Robert Mayo, Jr., gave his bond to John T. Rice, treasurer of said society, dated January, 1855, for an amount he had undertaken to pay for Newton, as executor to the society; which was in part payment of the balance of the debt due by Murphy's estate to the society.

The prayer of the bill is that the plaintiff may be allowed the benefit of adversary possession by himself and those under whom he claims, and of the statute of limitations, and lapse of time, for an injunction to the sale of the land and for general relief. The injunction was granted.

The Westmoreland Poor School Society answered the bill. They say the loan of the money to Robert Murphy was made as stated in the bill, and that it was made, as therein stated, as a permanent investment; but they deny that the money secured by the said deed has ever been paid, or that there has ever been any revocation or transfer of the debt or any release of said deed of trust. They admit that on the motion of Newton, the executor of Murphy, the said deed was released as to $800, by Robert H. Chewning assuming it and executing a deed to secure it. They say that they did, on the motion of said Newton, order $386.32, part of the said debt, to be transferred to James Templeman, upon the condition that the said Templeman should execute a deed of trust on the real estate purchased by him of Newton as executor of Murphy, the said Newton agreeing to execute a deed to said Templeman for said real estate. But no further steps were taken in the matter. Newton did not convey the said real estate to Templeman, nor cause said Tenpleman to execute the deed of trust in said order mentioned. As to the arrangement between Mayo and Rice, there is no order on their records authorizing it, and Rice had no authority to enter into the arrangement. But they do not believe that Rice ever intended to release any part of the debt of Murphy or to accept in lieu of it the bond of Robert Mayo. His purpose could have been nothing more than to accept payment from Mayo if he paid the money, not to accept him as debtor of the society; which he had no authority to do. They deny all adversary possession of the plaintiff, or those under whom he claims. They say the deed of trust from Murphy was duly recorded, and was notice to said plaintiff and all the world.

The cause came on to be heard on the 15th of October, 1877, when the court dissolved the injunction, and directed the trustee to proceed to sell the land according to the terms of the deed, and report his proceedings, & c. And thereupon Bowie applied to this court for an appeal and supersedeas; which was awarded. The facts are sufficiently stated by Judge Staples in his opinion.

R. L. T. Beale, for the appellant.

George Walker, for the appellee.

STAPLES J.

It appears by the record that Robert Murphy, in the year 1841, conveyed a tract of land known as Katon Point in trust to secure the payment of a debt of $1,543.34 due the Poor School Society of Westmoreland county.

In September, 1843, Robert Murphy executed a deed conveying the same land to John H. Murphy. John H. Murphy sold and conveyed it to Thomas Brown in December, 1855, who conveyed to the appellant in January, 1858. All these deeds were bona fide and for valuable consideration, the purchasers only having such notice of the deed of trust as was furnished by its recordation.

It is averred and not denied that possession of the land was taken and held by these purchasers successively from the year 1843 down to the present time. Upon this state of facts, and others to be presently mentioned, the appellant applied for and obtained an injunction restraining a sale of the property under the deed of trust of June, 1841, for the...