Frame v. Frame. *(Brannon

• Decision Date: 26 June 1889
• Citation: 32 W.Va. 463
• Court: West Virginia Supreme Court
• Parties: Frame v. Frame.*(Brannon, JuDGtE, Absent.)

32 W.Va. 463

Frame

v.Frame.

*(Brannon, JuDGtE, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1889.

Decided June 26, 1889.

1. Specific Performance Parol Contract Gift.

A court of equity will enforce a verbal promise made by a father to a son in consideration of love and affection to give him land and to make him a deed therefor, if the son induced by such promise has taken possession of the land and expended on it labor and money in improvements. (p. 475.)

2. Specific Performance Condition Precedent.

But if, when such gift was made, the father required the son in a given time to put specified improvements on the land, such requirement would be regarded as a condition precedent to the right of the son to demand a deed; and the son, before he could acquire such deed, would have to prove that he put on the land in the time specified the specified improvements. (p. 483.)

3. Specific Performance Condition Precedent Trusts and

Trestees Notice.

When the donor (the father) has put the donee (the son) in possession of the land, and the donee has fulfilled the conditions precedent attached to his gift and by improvements on the land acquired the equitable title thereto, a court of equity will regard the donor as trustee for the donee, and the possession of the donee of itself conveys notice to the world of his equitable title, and of his right to the legal title. (p. 477.)

4. Specific Performance－--Laches.

But if the donor sells this land, and the legal title passes into the hands of persons, who are purchasers for valuable consideration without any actual notice of the donee's equity, and if the donee knowing that the donor has parted with his legal title, instead of promptly asserting his right to demand the legal title to the land delays the assertion of such demand for nineteen years and until after the death of the donor and of all others present, when the verbal gift was made, a court of equity will not enforce the making of the legal title to such land to such donee because of his laches, (p. 481.)

5. Specific Performance Laches.

In such case, even if the rights of a third person had not intervened, a court of equity, if a suit to compel the donor to convey the legal title to the donee was not instituted for thirty one years, would not grant relief, if there was any trouble about the terms of the agreement or the conditions, on which the deed was to be made by the father to the son. (p. 482.)

Statement of the case by Green, Judge:

This was a chancery suit brought September 12, 1887, in the Circuit Court of Braxton county. The bill was filed at October rules, 1887, and it alleged, that the plaintiff, L. M. Frame, was the son of William B. Frame, deceased, who was a former resident in said county; that the plaintiff lived with his father and worked aided and assisted him on his farm till the plaintiff married on May 1, 1885; that the said father owned seven or eight different tracts of lands in said county, and being desirous of compensating the plaintiff for his services and of starting him in life proposed to him, if he would go upon a certain tract of land containing 100 acres situated on the south side of Elk river about one mile from Frame's mill in said county, and cultivate and improve the same, that he would give him said land and make him a deed therefor; that that tract was granted to said William B. Frame by the commonwealth of Virginia by patent dated September 30, 1846, a copy of which is filed with the bill showing the metes and bounds of the tract; that the plaintiff accepted the proposition and on or about May 12, 1855, moved upon said tract of land and has ever since lived upon said land claiming, as the bill says, and holding the same adversely to all the world openly, notoriously and exclusively from that day to;his, a period over thirty two years, and that he still owns, possesses and claims the same; that some years after the plaintiff moved upon said tract of land, his father became the surety of one A. W. Wilson on a constable's bond in the month of May, 1868, and being apprehensive, that he might be made liable by reason of such suretyship for the default of said Wilson, he determined to convey all of his lands to his two sons, John W. Frame and Thomas J. Frame, and accordingly by deed bearing date the 26th of May, 1868, a copy of which was filed with the bill, he conveyed to his said two sons seven different tracts of land, one of the said tracts being the same tract, which thirteen years previously he had granted to the plaintiff and placed him in possession of; that the plaintiff is not advised why his father included tli3 plaintiff's land in said conveyance; that "Certain it is, that it was never intended by his father or by his brothers to deprive him of the ownership or possession of said tract of land, even if they could legally have done so. His said brothers well knew all the facts in relation to the agreement under which he went into possession of said land; well knew his long possession, improvement, and culthation of the same, and well knew he was entitled to a deed therefor. In fact, they never disputed the plaintiff's right to said land, never attempted to oust him from the possession thereof, never set up any claim thereto, nor did any act in the least tending to assert a claim thereto, except as hereinafter stated. The character of said conveyance was well understood by the said William B. Frame and his said two sons, the said William B. Frame remaining in possession of said lands, except the tract sold to the plaintiff, until his death, and paying taxes thereon, except the tract owned by the plaintiff, the taxes upon which were paid by the said plaintiff. It was not until July, 1886, that either of said brothers did any act which in the slight- est asserted any claim to the plaintiffs land. On the 1st day of July, 1886, John II. Frame, by deed of that date, conveyed an undivided half of five of said tracts of land, including the tract owned by the plaintiff, to George Goad, trustee, to secure to Jelenko & Bro. the sum of $482.54, evidenced by a negotiable note of that date and payable six months after date, also to secure to Jelenko & Loeb the sum of $536.54, evidenced by note of that date, payable six months after date, with provision that upon default of payment of said notes or either of them said trustee should, upon request of the holder of said notes or either of them, sell the said undivided half of said land according to law for cash. A copy of said deed is here filed as part hereof, marked ' Exhibit No. 3.' The firm of Jelenko & Bro. is composed of the defendants Jacob Jelenko and Gustavus Jelenko, and the firm of Jelenko & Loeb is composed of the defendants William Jelenko and Charles Loeb. At the time of the conveyance by John II. Frame to said George Goad, trustee, the plaintiff was still in the open, notorious and exclusive possession of said 100 acres of land, and by law the said George Goad and Jacob Jelenko and Gustavus Jelenko and William Jelenko and Charles Loeb had constructive notice of the rights of the plaintiff to said 100 acres of land and his ownership thereof, and, in addition thereto, had actual notice of such right and ownership. That on the 22d day of August, 1877, the said John II. Frame having made default in the payment of said notes, the said George Goad, as trustee, sold the said undivided one half of said five tracts of land, including the plaintiff's tract of 100 acres, at public auction to the highest bidder, at which sale the said defendant Charles Loeb became the purchaser of said undivided one half of said five tracts of land, including the land of plaintiff, at the price of $700.00. That the said George Goad is about to convey the same to the said Loeb by a deed as such trustee. The plaintiff says that the said deed from William B. Frame to his sons Thomas J. and John II. Frame, and the trust-deed from the said John H. Frame to the said Goad, constitute a cloud upon the title of the plaintiff to said 100 acres of land; and the deed from Goad to Loeb, when made, will still further cloud his title. He is advised that he has a right to have said clouds removed, and to have specific execution of his said contract, made with his said father, and the legal title to said land conveyed to him. he therefore asks that said contract be specifically executed; that the said George Goad be restrained and enjoined from conveying the undivided one half of said 100 acres to the said Charles Loeb; that the said John II. Frame, Thomas J. Frame, George Goad, and the parties secured by said deed of trust, be held to have no interest in said 100 acres of land; that the clouds arising from the conveyance hereinbefore set out be removed by this honorable court; that the said John H. Frame, Thomas J. Frame, and George Goad be required to unite in a deed conveying said 100 acres of land to the plaintiff, and that he have such other, further, and general relief as the court may see fit to grant."

The parties defendant to this bill were the plaintiff's said two brothers and the trustee, George Goad, and said two firms secured by said deed of trust and Charles Loeb, the purchaser of this tract of land at the public sale under the deed of trust. The exhibits referred to in the bill were all filed with it. The following is the answer of Thomas J. Frame filed December 5, 1887:

"To the Hon. Henry Brannon, etc. Defendant, for answer to said bill, says that he does not desire to controvert the right of the said L. M. Frame to have specific execution of his contract, as set out in said bill, and he here tenders a deed for all his right, title, and interest in the said 100 acre tract of land, and, having answered, asks to be hence dismissed, with his costs. Thomas J. Frame."

The deed referred to in this answer was filed with the answer; and thereupon the following order was made:

"Thomas J. Frame this day filed his anwer to plaintiff's bill...