Cochran v. Den

• Decision Date: 16 June 1921
• Citation: 107 S.E. 708
• Parties: COCHRAN et al. v. HI DEN et al.
• Court: Virginia Supreme Court

107 S.E. 708

COCHRAN et al.

v.HI DEN et al.

Supreme Court of Appeals of Virginia.

June 16, 1921.

[COPYRIGHT MATERIAL OMITTED.]

Appeal from Circuit Court, Culpeper County.

Suit by Benjamin C. Cochran and another against J. G. Hiden and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

This is a suit in equity, instituted by the appellants to set up and establish the equitable ownership in them of a certain tract of 50 acres of land, and an implied or resulting trust in, or an equitable lien upon, another and adjacent tract of 121 acres of land, all located in Culpeper county, Va.; the trust or lien asserted being to the extent of about §2, 000 of a trust fund at one time belonging to appellants in remainder, which sum was many years ago invested in the purchase of such 121-acre tract.

There was a demurrer to the bill by J. G. Hiden, one of appellees, on several grounds, among which is the ground that the claims and demands of the appellants are barred by the statute of limitations. The decree under review sustained the demurrer to the bill on that ground, and dismissed the bill.

The material facts, as they appear from the allegations of the bill, are as follows:

By deed dated July 11, 1871, and duly recorded August 12, 1877, Benjamin Crawford, a grandfather of appellants, in consideration of the natural love and affection which the said Benjamin Crawford bore to his daughter, Nannie Cochran (elsewhere in the record called "Nannie S. Cochran"), the wife of James Cochran (the two last named being the mother and father of appellants, who were their only children), conveyed to the said James Cochran a certain tract of 200 acres of land, which included the 50-acre tract above mentioned, upon the following trust as set out in such deed, namely:

"To have and to hold the said tract or parcel of land * * * unto him the said James Cochran, in trust, for the joint use of him, the said James Cochran and Nannie, his wife, during their joint lives, free and clear of and from all manner of charge and incumbrance of him the said James Cochran, and for the joint use of the survivor of them and the children of the said Nannie Cochran during the life of said survivor, and at the death of said survivor that the same shall pass in fee simple to the ——at law of the said Nannie Cochran. Full power and authority is hereby invested in said trustee by and with the consent of said Nannie Cochran, evidenced by her uniting with him by privy examination in the deed conveying the same, to sell and convey the said property, but the proceeds of sale shall be held and invested upon like trust as hereinbefore set forth with continuing power to change the investment upon the same terms; and the said Benjamin Crawford doth hereby declare that this conveyance is not made from any want of confidence in his said son-in-law, James Cochran, but that it is made with his full consent and at his request, in order that a sure and permanent home and support may be provided for his wife and children, beyond the contingency of his personal success or failure in business."

By deed dated March 20, 1879, and duly recorded April 12, 1879, James Cochran and his said wife (the latter uniting therein by privy examination per certificate of a notary public), for the consideration of $0,000 purchase money, conveyed away to R. T. Barton, trustee, 150 acres of said 200 acres of land, leaving the 50-acre tract which is first above mentioned.

At or about the time of the deed last mentioned the said James Cochran, at the price of about $5,850, purchased from one James Crawford and wife the 121-acre tract of land above mentioned, and used about $2,000 of the purchase money derived from the sale of the 150-acre parcel of land aforesaid in making the cash payment for such 121-acre tract, leaving about $3,850 unpaid purchase money therefor owing to the said Crawford and wife.

James Cochran died on August 17, 1883, before any further purchase money was paid for said 121-acre tract of land, and up to his death no conveyance thereof had been made by Crawford and wife.

By deed dated May 28, 1S84, and duly recorded July 24, 1884, the said Crawford and wife and the said Nannie Cochran united in a conveyance to one James F. Robertson of both the said 121-acre and 50-acre tracts of land. This deed recites that the said Crawford and wife "did sell" the said 121 acres of land "to the said Nannie S. Cochran, but never made her a deed for the same, and there remains due to the said Crawford and wife on the said land the sum of $3,850." It also appears from the recitals in such deed that the said Nannie Cochran sold to the said James F. Robertson both the said 121-acre, and 50-acre tracts of laud, making 171 acres of land, at the price of $40 per acre, aggregating $6,840, subject to a survey thereafter to be made, $2,2S0 of which purchase money was paid cash by said Robertson; he giving his three bonds for the residue, bearing interest. It also appears from the recitals in this deed that the 50-acre parcel of land included in the larger tract of 200 acres above mentioned "was conveyed by said Benjamin Crawford to James Cochran, trustee, by deed of 11th July, 1871." By the deed of May 28, 1884, also, a vendor's lien was "reserved to the said Nannie S. Cochran on the said land to secure the payment of the three bonds of said Robertson before mentioned." The deed, however, purports to convey both the said 121-acre and 50-acre tracts of land to the said Robertson in fee simple, "with general warranty of title."

James F. Robertson took actual possession of said 121-acre and 50-acre tracts of land upon the execution of the. last-named deed to him, and continued in such possession until April, 1890, claiming title to all of such land in fee simple under such deed. He on the last-named date conveyed the same land as in fee simple to his wife, who continued such possession and claim of title until November 10, 1890, when she, by deed in which her husband united, conveyed the same land as in fee simple to F. A. Dangerfield and R. J. Gray, who continued such possession and claim of title until they conveyed it. The property was conveyed as in fee simple by the said Dangerfield and Gray, and by various other mesne conveyances of the same character, down to one E. P. Duncan, who by deed dated October 24, 1911, conveyed the same as in fee simple to the said J. G. Hiden, one of appellees, who has ever since held actual possession thereof under claim of title under the last-named deed and under the various deeds in his chain of title aforesaid. All of the deeds in said chain of title from said James F. Robertson down to and including the deed to J. G. Hiden, aforesaid, were duly recorded.

The bill contains the following express allegation on the subject of adverse possession of said 50-acre and 121-acre tracts of land, to wit:

"* * * That said J. G. Hiden and his predecessors in title, for more than 15 years, have held uninterrupted possession of said property, claiming to own the same in fee Simple under all of said deeds, back to and including said Exhibit No. 1 [the deed of July 11, 1871, from Benjamin Crawford to James Cochran, trustee, aforesaid], but without ever in any way putting complainants on notice, or upon inquiry, that the same was being held adversely to complainants."

It appears from the bill: That appellant Benjamin C. Cochran was born September 11, 1868, and hence became 21 years of age on September 11, 1889. That appellant Patsy C. Graves was born on August 17, 1870, and so became 21 years of age on August 17, 1891. The latter married some time after she became 21 years of age.

The said Nannie Cochran, the mother of appellants, died in Bristol, Va., on March 24, 1902.

Appellant Benjamin C. Cochran left Culpeper in the year 1887, and after a few years located in Bristol, Va., where he has resided the greater part of his time since he left Culpeper.

Appellant Patsy C. Graves and her mother moved from Culpeper to Bristol on or about April 2, 1894, where the former afterwards married, and where she has resided ever since.

The said Nannie Cochran was an invalid all the time after she moved to Bristol, and for some years prior to that time. She nev er had any business experience and understood business transactions very imperfectly.

The part of the purchase money for the 121-acre and 50-acre tracts of land sold and conveyed to James F. Robertson as aforesaid, after payment to Crawford and wife of the balance of purchase money for the 121-acre tract of land, with interest, owing to them, as aforesaid, was never reinvested in accordance with the trust and limitations with which the same was charged by the deed of July 11, 1871.

There is filed with the bill, as Exhibit No. 4, the following letter from Messrs. Hiden & Bickers, attorneys for the said J, G. Hiden:

"Exhibit No. 4.

"J. G. Hiden.

"R. A. Bickers.

"Hiden & Bickers,

"Attorneys and Counselors at Law,

"Culpeper, Virginia, July 23, 1918.

"Mr. Benjamin Cochran, Druggist, Bristol, Virginia—Dear Mr. Cochran: We are writing you at the request of Mr. J. G. Hiden, the present owner of the 'Belle Pare Farm, ' near this town, which was formerly owned by your mother, Nannie S. Cochran.

"It appears from the records of Culpeper county that in 1871 Benjamin Crawford conveyed to James Cochran, as trustee, 200 acres of land, a part of the 'Belle Pare Farm, ' to be held for the use and benefit of James Cochran and Nannie S. Cochran during their natural lives, and then to the survivor, and at the death of the survivor to the heirs at law of Nannie S. Cochran, with authority to the trustee to sell 'upon Nannie S. Cochran signing and acknowledging the deed according to law.'

"It further appears that James Cochran, trustee, and Nannie S. Cochran, conveyed 150 acres of the above 200 acres to R. T. Barton, trustee, in 1879, leaving 50 acres in the name of James Cochran, trustee, for the benefit of Nannie S. Cochran, etc.

"It further...