CoNNELL v. *(Gbeen
| Decision Date | 04 March 1889 |
| Citation | 32 W.Va. 319 |
| Court | West Virginia Supreme Court |
| Parties | CoNNELL v. Connell.*(Gbeen, Judge, absent.) |
Where a deed is delivered by the grantor to a third person to be held in escrow until the grantee shall have paid a specified debt, and the deed is delivered before the debt is fully paid, but it is subsequently paid, held: the delivery will be operative, and the deed valid, at least from the time the debt is fully paid.
Where those to be effected by the improper delivery and recordation of a deed were fully acquainted with the facts, and acquiesced therein for an unreasonable time, and until the rights of third parties have intervened, they will not be permitted to avoid such deed.
A case in which the trustee and cestui que trust are held to be purchasers for value without notice under the evidence and special facts and circumstances proven.
To charge a bona fide purchaser with notice, either express or implied, the notice must be something more than a vague statement that the vendor's title is subject to an equity.
Statement of the case by Snyder, President:
John H. Connell on October 7, 1886, filed his bill in the Circuit Court of Kanawha county against Daniel F. Connell, Roman Pickens and W. S. Laidley, trustee, in which he avers, that in the year 1865 he contracted to purchase from Davis H. Estill a house and lot on Quarrier street in the city of Charleston at the price of $2,000.00, of which sum he paid about $500.00 and, in order to ge; the title from Estill, his father, J. S. Connell, raised a balance the $1,500.00 by borrowing the same from D. F. Connell, to whom he gave his note therefor dated April 1, 1865; and that there- upon Estill conveyed the lot to said J. S, Council upon the agreement between the said J. S., Daniel and the plaintiff, that said J. 8., the father of Daniel and the plaintiff, was to hold the legal title to said house and lot as security to Daniel for said $1,500.00 until paid, but in trust for the plaintiff" for any surplus in case of a sale to pay said $1,500.00. The plaintiff went into possession of the property about that time and has resided upon it ever since. A year or two before the death of his father the said D. P. Connell requested, that the said house and lot be deeded to him with the same trust and understanding, that he should hold the title as security for said $1,500.00, and with this understanding the father executed and acknowledged a deed to Daniel for the property and delivered it to his daughter, Sarah, to keep until a full settlement of accounts was had between him, Daniel, and the plaintiff. The father died leaving the deed in the possession of his daughter; and five or six weeks thereafter Daniel got it from her and had it recorded, but still admitting, that he held the property as security for the money loaned, or any balance there might be due him on settlement, and such has always been the understanding; and that on such settlement and the payment to Daniel of any balance found due him the property was to be conveyed to the plaintiff free from any claim of Daniel. No such settlement has ever been made, though efforts to do so have been made without effect. Plaintiff believes that upon a fair settlement between him and Daniel there will be due to him a sum sufficient to pay any balance that may be due to Daniel on said $1,500.00; ' that said Daniel is not therefore the true owner of said house and lot, but onl\y the holder of the legal title in trust as aforesaid. The plaintiff further avers, that D. P. Connell by deed dated August 29, 1884, conveyed said house and lot and another lot of nine acres of land worth $2,800.00 to W. S. Laidley, trustree, to secure to Roman Pickens the payment of a note of $8,000.00 which is now due, and said Laidley has advertised the property for sale under said trustdeed; that said house and lot are worth $5,000.00 and, if sold as advertised, would be sacrificed; that the Ruffner Bros., as agents of Pickens, loaned said $3,000.00 to IX F. Connell for Pickens, and the plaintiff gave them notice, that said D F. Connell did not own said property.
The bill prays that W. S. Laidley, trustee, be enjoined from selling said house and lot; that all proper accounts be ordered and taken; and that said D. F. Connell be required to surrender such title as he holds to said house and lot, and convey the same to the plaintiff etc: The injunction was awarded as prayed in said bill.
The defendant Pickens answered denying the allegations of the bill, and especially denying, that Ruffner Bros, had ever been his agents, or that they had made the loan to I). F. Connell for him; or that the deed from J. S. Connell to D. F. Connell had never been delivered; or that the said house and lot had been conveyed to D. F. Connell upon any trust secret or otherwise; or that, if such trust existed, he had any notice of it; and averring, that he was a purchaser for value without notice; and he also denied all the other material allegations of the bill.
Subsequently the plaintiff filed an amended bill, the time of filing which is not disclosed by the record, but, as it appears to have been sworn to on July 2, 1387, it was probably filed after the depositions had been taker and filed. In this amended bill the plaintiff avers by way of supplement, that W. S. Laidley, trustee, before the trust-deed to him was executed, had notice and was advised of the equities of the plaintiff in said house and lot; and he was informed that D. F. Connell was not the true owner thereof; and also that since the filing of his original bill the plaintiff has been informed and now distinctly charges, that the legal title to said house and lot never vested in D. Connell; that the deed thereto from J. S. Connell was never delivered either by said J. S. Connell during his life, or by any one authorized to do so after his death; but that after the death of said J. S. the said D. F. Connell wrongfully obtained the possession thereof from his sister, Sarah E. Connell and improperly had the same recorded; that the said deed is null and void, and the legal title to said property is vested in the heirs of said J. S. Connell, deceased, for the use of the plaintiff as the real and true owner subject to a charge in favor of D. F. Connell for any balance due on the purchase-money advanced by him after a full settlement between him and the plaintiff. There is no prayer to this bill.
Pickens answered this bill also; and all the other defendants filed their separate answers to the plaintiff's bill and amended bill. D. P. Connell after detailing the transactions and state of accounts and settlements between himself and the plaintiff and exhibiting papers signed by the plaintiff, which show, that the plaintiff is largely indebted to him over and above the $1,500.00 advanced for the purchase of the house and lot, avers, that in the year 1868, after the plaintiff had sold apart of the afbrosaid lot for $450.00 the said J. S. Connell offered to convey the residue thereof to the respondent upon the surrender to him of the note held by respondent for the purchase-money, amounting then to $1,790.00. Respondent accepted this offer and delivered to his father the said note, and his father agreed to convey to him said lot. Not longafter this his father died, and shortly thereafter the said deed was delivered to him by a member of the family, and he with the full knowledge and consent of the plaintiff and the other heirs of his father had it recorded, and he has ever since claimed and owned said property thereunder without notice or knowledge of any adverse claim until after the execution of the aforesaid trust-deed to W. S. Laidley, trustee; and he positively denies, that the plaintiff has any right or title to said house and lot either legal or equitable.
The defendent, W. S. Laidley, in his answer, which is sworn to by him, says: He further says he sold the nine acres of land mentioned in the trust-deed on October 9, 1886, for $1,165.00.
All the answers were replied to generally. On April 9, 1886, the cause was finally heard on the bill, and amended bill, the demurrer thereto, the answers of all the defendants, replications, exhibits and depositions; and thereupon the court entered a decree dissolving the injunction and dismissing the bill, at the plaintiff's costs.
From this decree the plaintiff' has appealed.
E. B. Knight and J. II. Connell for appellant.
Brown $ Jackson and W. A. MeCorkle for appellees.
Snyder, President:
If the deed from J. S. to D. F. Connell vested in the latter the legal title to the house and lot, and the appellees Roman Pickens, and W. S. Laidley, trustee;, are purchasers of the property without notice of any equity or right thereto in the plaintiff, then it is wholly irrelevant to inquire in this cause as to the equities between the plaintiff and I). F. Connell in respect to said property, or as to the state of accounts between them. I shall therefore address myself to the following questions: 1. Was D. F. Connell vested with the legal title to said house and lot by the deed to him from J. S. Connell, or otherwise? 2. Were the appellees Pickens and Laidley purchasers without notice of any equity in the plaintiff in respect to said property?
1. The record shows that this property was in the year 1865 conveyed by D. II. Estill to J. S. Connell. On July 9, 1868, J. S. Connell and wife had a deed prepared, absolute on itsface conveying said property with covenant of general warranty to D. F. Connell...
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