Floyd v. Duffy.
| Decision Date | 28 June 1910 |
| Citation | 68 W.Va. 339 |
| Court | West Virginia Supreme Court |
| Parties | Floyd v. Duffy. |
Land.
Creations and declarations of trusts in lands may be made and proved in this state as they could be in England, before the English Statute of Frauds, the seventh section of that statute, requiring the proof of such creations and declarations to be in writing, never having been in force in this state.
of Land.
Though no contract for the sale of land is enforcible either at law or in equity, unless it be in writing, and no estate in land for more than five years can pass except by deed or will, there are many instances in which courts of equity except transactions, relating to land, from the operation of these provisions, on the ground that they stand upon equities independent of the contracts attending them, and establish constructive trusts in favor of grantors as well as persons not mentioned in the deed.
A conveyance of the legal title to land, obtained by the grantee in pursuance of a verbal agreement between himself and a third party, prior in date to the deed or contemporaneous therewith, for their common benefit, no purchase money having been paid by either of them, and it having been the intention and agreement of the parties to sell the land in small portions and pay for the same out of the proceeds thereof, as sold, and reccnvey all that should remain unsold after a certain date, is not within the statute of frauds; and, by virtue thereof, the grantee took the legal title in trust for himself, the grantor and such third party.
If, in pursuance of a prior or contemporaneous agreement of copartnership to purchase and sell land for profit, one of the parties obtain a conveyance of the land to himself, proof of such agreement and conveyance, pursuant thereto, establishes a trust in the lands in favor of the other partner, not inhibited by the statute of frauds.
While, in equity, the allegata and probata must correspond, the rules for the enforcement of this principle in courts of equity are more liberal than those applied in actions at law, and an agreement in matters of substance only is required; it being sufficient that the cause of action made out by the bill and the evidence is substantially the same.
ed Bill.
If, on appeal, it appears that the original bill is broad enough to admit the evidence and sustain the decree pronounced, the decree will not be reversed for failure to mature an amended bin, unnecessarily filed.
The trial court may properly allow an amended bill to be filed, after the evidence taken has developed a state of facts, variant from those set up in the original bill, but not constituting a departure, as defined by the courts, nor a new cause of action.
The' exercise of the discretion of the trial court, in permitting an amended bill to be filed, will not be disturbed by an appellate court, except in cases of abuse of such discretion.
Appeal from Circuit Court, Kanawha County.
Action by John B. Floyd against J. B. Duffy, administrator of Patrick Duffy, and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
Linn & Byrne and Mollohan, McClintic & Mathews, for appellants.
J. W. Kennedy and E. B. Dyer, for appellee.
pofeenbarger, judge:
The object of the bill in this cause was an accounting by the estate of Patrick F. Duffy, deceased, for one-half of the proceeds of the sale of a large number of town lots, and partition of a few lots remaining unsold out of the property, all of which the bill alleges, 'was conveyed to Duffy to hold in trust for himself and the plaintiff, John B. Floyd. The plaintiff proceeds upon the theory of a purchase of 137 lots, constituting what is known as the McClung Addition to the City of Charleston, at the price of $30,000.00, none of which was paid or intended to be paid at the date of the conveyance, but all to be paid out of the proceeds of the sale of the lots, at prices per lot agreed upon between McClung, the grantor in the deed to Duffy, on the one hand, and Duffy and Floyd on the other, if the lots could be sold within a specified time, and, if not, the balance to be paid or settled by a re-conveyance of the unsold lots at the prices agreed upon in the collateral agreement. While the deed from McClung to Duffy recites the payment of $6,000.00 in cash and the execution of three promissory notes for $8,000.00 each, the contention of the plaintiff is that no money was paid nor any notes executed at the inception of the transaction and that no interest on the purchase money was contemplated or paid for a period of three years after the date of the deed, at which time all purchase money was to be paid out of the sales of lots and by re-conveyances of the unsold lots, if any. The deed from [Dec. 1910.
McClung to Duffy bears date May 7, 1890. Lots were conveyed by Duffy as early as July, 1890, and be continued to make conveyances for a number of years, but having later become financially embarrassed, and his creditors having acquired liens on the property, he was unable to proceed further with the enterprise. Two of the lots were judicially sold, at the instance of his creditors. About the year 1901, a friend of his purchased a number of the judgments and allowed him to make private sales of sufficient property, through an attorney in fact, appointed for the purpose, to pay off all, or practically all, of his debts. In this way, all of the McClung properly, except about 33 lots, was sold, and the proceeds went into the hands of Duffy or to his creditors. In March, 1905, Duffy died. At and immediately before the conveyance to Duffy, and from that time until he became financially embarrassed, Floyd undoubtedly had relations with him respecting the property. He was active in effecting sales of the lots. He seems to have incurred some expense in cutting a ditch for the benefit of the property and otherwise interested himself in the promotion of the enterprise. W. E. E. Byrne, the attorney in fact, and Duffy's heirs deny all knowledge of any claim on the part of Floyd to any interest in the property until after the death of P. F. Duffy, and say they understood from the latter that Floyd was selling the lots on a commission. Declarations of P. F. Duffy to this effect are put in evidence by witnesses. A large amount of testimony was taken on both sides and the circuit court of Kanawha county rendered a decree, declaring that Duffy took title to the lots in trust for himself and the plaintiff, and referred the cause to a commissioner to state an account between the parties as a basis for a decree giving the relief prayed for in the bill. Pending the suit, the lots remaining unsold at the institution thereof were conveyed by Duffy's heirs to Isaac Loewenstein, in consideration of $27,000.00, the purchaser paying $7,000.00 in cash and executing notes for the residue.
As the trust alleged in the bill is predicated on parol evidence, it becomes necessary to determine, in the first instance, whether it can be so established. Assuming the agreement between Floyd and Duffy to have been made, before the deed was executed and delivered to the latter, it nevertheless remains that no money was paid on the purchase price by the plaintiff, nor, indeed, anything more than a nominal sum by Duffy. All that was ever paid on the property seems to have been paid after the delivery of the deed. There was no agreement to pay anything otherwise than out of the proceeds of the sale of lots, as such sales should be made, Duffy and Floyd taking the excess of purchase money over the prices named in the collateral agreement, as their profit. Counsel for the appellee frankly admit that the trust is not in writing. They assert it is not a resulting trust, nor a constructive trust, but is an express trust which the law permits without writing. At common law no particular form of creation or declaration of a trust or use was required. It could be by deed, or will, or writing not under seal, or by mere word of mouth. Uses and trusts were simply averred and proved like any other facts and writing was not required. Currence v. Ward, 43 W. Va. 370; 28 A. & E. Enc. Law 869; Saunders on Uses and Trusts 152, m. p. 210; Perry on Trusts, section 75. In 1676, the English statute of frauds was passed, the' seventh section of which required all declarations or creations of trusts or confidences in any land, tenements or hereditaments to be proved in some writing signed by the party, enabled to declare such trust, or by his last will in writing. Saund. Uses & Trusts, Id,; Perry on Trusts, Id, Not being made expressly applicable to the Colonies, this statute was never in effect in Virginia, 28 A. & E. Enc. Law 873, but, in 1787, Virginia enacted a statute of frauds, the same, in many respects, as that of England, but omitting said seventh section, relating to declarations of trust. Nor has it ever been incorporated in the statutes of this state. Hence, trusts in land may be declared in this state as at common law. Currence V. Ward, cited. However, every contract relating to land is not a declaration or creation of a trust. There is no pretense that Floyd obtained the legal title to the land. The utmost that he could have had was an equitable title, based upon his parol contract. If he had paid money, his right would have rested, not upon the agreement, but upon the payment, upon a fact of which the agreement was a mere attendant. Under the principles declared in Currence v. Ward, it suffices that the payment be made at or before the vesting...
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