Connell v. Connell
| Decision Date | 09 March 1948 |
| Docket Number | 9955. |
| Citation | 46 S.E.2d 724,131 W.Va. 209 |
| Parties | CONNELL v. CONNELL et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
As between the immediate parties to the transaction under consideration, and their voluntary successors in interest, an equitable lien upon real estate will be decreed when the dominant equities of the circumstances plainly shown by the proof so require, and there is a memorandum signed by the parties to be charged in compliance with Code, 36-1-3.
Okey P. Keadle, of Huntington, for appellants.
Duncan W. Daugherty, of Huntington, for appellee.
This proceeding in chancery was brought in the Circuit Court of Cabell County by Harry A. Connell, alleging ownership in fee subject to a life estate in his father, William J. Connell against Edward T. Connell, Josephine A. Ney, William J Connell, H. L. Johnson and McDaniel Purcell, Trustee, for the purpose of setting aside a deed dated the 28th day of October, 1944, executed by Anne P. Connell as attorney in fact for Harry A. Connell and Evelyn Mann Connell, his wife conveying to H. L. Johnson a house and lot in the City of Huntington, here called for convenience 1504 Sixth Avenue; a deed dated November 3, 1944, conveying the same property from H. L. Johnson and wife to William J Connell and Anne P. Connell; and a trust deed of the same date and for the same property from William J. Connell and Anne P. Connell, his wife, to McDaniel Purcell, Trustee. Anne P. Connell died in January, 1946. The bill of complaint prayed for, and the court granted, an ancillary injunction inhibiting sale under the deed of trust attacked.
The answer of Edward P. Connell and Josephine A. Ney, in substance, alleges that the deed under which the plaintiff, Harry A. Connell, claims title was made by William J. Connell and Anne P. Connell and was executed with the understanding that the grantors at any time they saw fit to do so would have the right to dispose of the property conveyed and to use the proceeds for their maintenance and support; that the power of attorney was executed in order that that understanding might be readily carried into effect; that the power of attorney is a valid and binding paper as are the instruments under attack in this proceeding. It also alleges facts that sufficiently show their right to an equitable lien upon the property involved.
The answer of McDaniel Purcell, Trustee, asserts the validity of the power of attorney, the conveyance executed pursuant thereto by Anne P. Connell, the conveyance by Hugh L. Johnson to William J. and Anne P. Connell, and the trust deed from Mr. and Mrs. Connell to him as trustee.
Upon final submission after the taking of testimony the relief prayed for was granted in so far as setting aside the named conveyances is concerned. The trial chancellor further undertook to determine the equitable interest of the parties involved in 1504 Sixth Avenue by allowing Edward P. Connell and Josephine A. Ney a first lien upon the property involved for $2,561.00 with $341.89 interest and the additional sum of $1,395.88 as payment of the plaintiff's portion of the actual cost of maintenance of his father and mother advanced by the defendants named prior to the bringing of this proceeding. The allowance of $1,395.88 having been made under Code, 9-11-6, the defendants in error cross assign, asking that that allowance be set aside. The effect of the circuit court's decree having been to vest in the plaintiff, Harry P. Connell, the fee simple of the property in controversy, subject to his father's life estate, the decree ordered him to pay the named defendants the amounts adjudicated as constituting a lien within thirty days of the entry of the decree or, upon failure, that the property be sold by a named special commissioner. This appeal was granted upon the petition of Edward P. Connell and Josephine A. Ney, the trust deed creditors the enforcement of whose asserted lien was enjoined.
In the early nineteen thirties William J. Connell, at the time of submission a retired general contractor, aged eighty-seven, and his wife who died in January, 1946, immediately prior to the institution of this suit, at the age of eighty-five, owned a home near the City of Huntington on Russell Creek. This property was their sole possession of value. Their only children were the plaintiff, Harry A. Connell, a pharmacist employed in Philippi, the defendant Edward P. Connell, whose home is in Wheeling, where he is employed by the Harris Calorific Sales Company of Cleveland, Ohio, a corporation in which he is a minority stockholder, and Carl H. Connell, who lives in Warren, Ohio, and whose employment does not appear. Until the period covered by this controversy, or until the early part of the year 1944, when their mother's last illness was determined to be cancer of the rectum, the three sons may be said to have contributed to the support of their parents in proportion to their means, their father having then reached the age of eighty-six, Edward's income and resources apparently exceeding those of Harry and Carl, respectively.
In 1943 the father and mother sold their Russell Creek property and with the entire net proceeds of that sale purchased 1504 Sixth Avenue. As a part of the transaction they arranged to have the deed of trust securing Hugh L. Johnson in the amount of $2,000.00 transferred to the property they were buying and, in addition, in order to clear the title upon the property they were selling borrowed $500.00 more from Johnson, executing a deed of trust to secure him in the amount of $2500.00. Less than a year thereafter Mrs. Connell's distressingly lingering last illness was discovered, with the encumbered piece of real estate the only property of either her or her husband.
After the disease from which Mrs. Connell was suffering had been correctly diagnosed and after she had undergone the first of two surgical operations performed before her death, at her suggestion the property at 1504 Sixth Avenue was conveyed by her husband and her to Harry A. Connell for a nominal consideration and the assumption by him of the lien standing of record against it, the grantors reserving joint and several life estates, coupled with a verbal understanding that they could dispose of the property as they saw fit. It is the contention of the plaintiff that this transfer was made as an unrestricted gift of the entire interest of his parents in the property to him, Harry, subject to the life estates reserved, while the defendants contend that it was made because Mr. and Mrs. Connell were troubled and disturbed by the intention of their son, Edward, to seek a divorce which would likely occur after their death and which would possibly result in a controversy over the beneficial ownership of the only property they owned. Edward Connell testified that he was the plaintiff in a pending divorce proceeding to be disposed of by an uncontested decree. Defendants further contend that it is extremely unlikely that a couple of the ages of their father and mother would give away their only resource when Mrs. Connell's illness had become, and would continue, a financial burden far in excess of their ordinary living expenses paid by others.
On the 31st day of August, 1944, Harry A. Connell and wife executed and acknowledged a power of attorney giving to Anne P Connell, his mother, the unlimited power to dispose of 1504 Sixth Avenue. The plaintiff's position is that this power of attorney was executed merely as a matter of convenience, his home being in Philippi and that of the named attorney in fact in Huntington. On the other hand, the defendants say that, in spite of the fact that the father and mother occupied and owned a life estate in 1504 Sixth Avenue, they became greatly disturbed by constant reports that it was the purpose of Harry Connell to remodel the dwelling so that the ground floor could be...
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