Daniel v. Viar

• Court: Virginia Supreme Court
• Writing for the Court: Campbell, J.
• Citation: Daniel v. Viar, 147 Va. 323, 137 S.E. 526 (1927)
• Decision Date: 17 March 1927
• Parties: JOSEPH A. DANIEL v. ELIZA A. VIAR.

Page 323

147 Va. 323

JOSEPH A. DANIEL v. ELIZA A. VIAR.

Supreme Court of Virginia, Richmond.

March 17, 1927.

1. TRUSTS AND TRUSTEES — Parol Trusts — Statute of Frauds. — In the instant case complainant attempted to establish a parol trust in lands in her favor. Defendant contended that such a parol trust was invalidated by clause 6, section 5561, of the Code of 1919, requiring contracts for the sale of land to be in writing.

Held: That the statute of frauds does not forbid the creation of a parol trust in lands.

2. TRUSTS AND TRUSTEES — Parol Trusts. — At common law, before the enactment of the statute of frauds, an express trust in lands could be created by parol; the seventh section of the English statute requires a writing for the proof of an express trust in lands, and the eighth excepts from its operation resulting trusts, but as these sections have never been enacted in Virginia, the matter of parol trusts rests as it did at common law; the omission of these sections was conclusive of the fact that the sixth section did not exclude parol trusts.

3. TRUSTS AND TRUSTEES — Parol Trusts — Parol Evidence Rule. — The admission of oral proof of a parol trust does not violate the parol evidence rule, that parol evidence cannot be admitted to vary, contradict, add to or explain the terms of a written agreement. At common law an express declaration of trust was lawful and the statute of frauds as adopted in this State does not in this respect alter the common law. Therefore, such an express declaration of trust remains lawful. In the nature of things an oral declaration can only be established by oral evidence, and the position cannot be maintained that an oral declaration of trust is sanctioned by our law and the only possible mode of proof is to be excluded; in other words, we cannot maintain a right and exclude the only mode of proof by which that right can be established.

4. TRUSTS AND TRUSTEES — Parol Trusts — Party Contradicting His Own Deed — Husband and Wife — Case at Bar. — In the instant case complainant attempted to establish a parol trust in herfavor in certain lands. Defendant contended that the parol agreement establishing the trust was incapable of proof because the claim of complainant was in contradiction of the conveyance to which she was a party. The trust in question was not created by complainant but by her husband in her favor. She was a grantor only in the sense that it was necessary for her to unite in the deed in order to release her contingent right of dower.

Held: That a contradiction of the deed was not involved in the instant case. The establishment of the trust will not affect the validity of the deed, but will add thereto by making the deed complainant's muniment of title.

5. TRUSTS AND TRUSTEES — Parol Trust in Favor of Wife of Grantor — Case at Bar. — In the instant case, a suit to establish a parol trust in favor of complainant, at the date of the conveyance to the defendant, it was the desire of the grantor that his wife should be provided for in her old age. The only inducing motive for a conveyance of the entire tract, instead of one-half of the tract, to the defendant was to enable the defendant to provide a home for the daughter of the grantor, the wife of defendant, and to enable the defendant to borrow money on the property sufficient to erect a home. This defendant could not do on one-half of the land and, therefore, the grantor agreed to convey the whole tract to the defendant with the understanding that as soon as the debt on the land was sufficiently reduced to get it released, one-half of the land should be conveyed to the wife of the grantor. The rule of law that the declaration must be unequivocal and explicit, and established by clear and convincing testimony, was fully complied with.

Held: That the decision of the trial court, sustaining the contention of the complainant that the land conveyed to the defendant was impressed with an express trust in her favor, should be sustained.

Appeal from a decree of the Circuit Court of Campbell county. Decree for complainant. Defendant appeals.

The opinion states the case.

A. S. Hester, for the appellant.

S. H. Williams, for the appellee.

CAMPBELL, J., delivered the opinion of the court.

Eliza A. Viar, appellee, filed her bill of complaint in the circuit court, alleging, amongst other things, that her husband, William A. Viar, who departed this life in August, 1917, was during his lifetime seized and possessed of a one acre tract of land, situated in Campbell county; that in contemplation of erecting a building on said lot, concrete pillars were erected thereon to be used as a foundation for the proposed house; that in December, 1916, the appellant, who was the son-in-law of the appellee and her husband, offered to assume the indebtedness upon the land, upon condition that William A. Viar would convey to him that portion of the land containing the concrete foundations; that in order to assist their daughter to establish a home, they consented to convey the appellant one-half of the land; that shortly thereafter the appellant reported to the complainant and her husband that he had consulted one William L. Moore, with a view of borrowing from him the money necessary to cover the cost of erecting a house on the property, and was informed that he, the said Moore, would require the cost of the house to be secured upon the entire acre of ground, the one-half being insufficient security for the debt arising out of the cost of the house; that in view of this fact, appellant requested that the entire acre of ground be conveyed to him, and proposed that if this was done, he would reconvey the other half to the complainant, to whom the said William A. Viar desired to give it, as soon as he could reduce the indebtedness sufficiently to get it released from the lien of the debt; that the complainant and her husband consented to this proposition upon the assurance of the appellant that he would comply with this condition, and thereupon, by deed dated January 10, 1917, of record in the clerk's office, they conveyed to the said appellant the entire acre of ground; that this conveyance was made with the express understanding with the said appellant, and upon his assurances that he would reconvey the said half acre to this complainant as soon as he had reduced the indebtedness secured thereon sufficiently to get it released; that though often requested to do so, and though not denying his obligation to do so, appellant failed and refused to convey the said property to this complainant, notwithstanding the fact that the indebtedness secured thereon has been sufficiently reduced to get the said property released.

The bill then charges that the...