Gilchrist v. Beswick
| Decision Date | 09 November 1889 |
| Citation | 33 W.Va. 168 |
| Court | West Virginia Supreme Court |
| Parties | Gilchrist et al. v. Beswick et al.*(Green, Judge, Absent.,) |
It is competent to prove by parol evidence that a deed absolute on its face is in fact a mortgage.
Where the parol evidence leaves the question doubtful whether the conveyance should be considered an absolute deed or a mortgage, a court of equity will incline to hold it a mortgage.
The following facts and circumstances have great weight in leading to the conclusion that such conveyance is a mortgage, and not an absolute deed: first, that the grantor was hard pressed for money;second, that the conveyance was preceded by negotiations for a loan by the grantee to the grantor; third, that the parties did not apparently consider either the quantity or the value of the land conveyed; fourth, that the price was grossly inadequate; and, fifth, that the possession remained with the grantor after the conveyance.
One co-tenant or joint owner of land can not clandestinely, or without fair notice to his co-tenants, stipulate with third persons for any private or selfish advantage and benefit to himself in respect to the joint property; and, if he does so, a court of equity will, at the option of his co-owners, compel him to divide such benefits.
All purchases or sales made of or in respect to the common property of such joint owners by one of them, though made for his own benefit, will, at the option of his co-owners, be declared by a court of equity to be for the common benefit of all the owners.
When several parties, as tenants in common, own lands subject to a mortgage, and they enter into an arrangement by which one of such owners, with other parties, agrees to pay off the mortgage or buy in the land, and hold it subject to redemption by the other owners, and such arrangement is not fully complied with, but one of the owners, without explicit notice to the others that he is not acting under said arrangement, buys in the land for his own benefit for the balance due on the mortgage debt, which is less than one tenth of the value of the lands, a court of equity will hold that the purchase was for the benefit of all the owners.
W. P. Hubbard for appellants. A. B. Parsons for appellees. Snyder, President:
George W. Dobbin, being the owner of three tracts of land containing 26, 000, 420, and 768 acres, respectively, situate on the waters of the Black Fork of Cheat river, in Tucker county, by deed dated April 12, 1864, conveyed the undivided one half of said lands to Addison Childs, and the remaining undivided one half of said 23, 000, 420, and 768 acres of land the said Dobbins sold, and by deed dated December 16, 1873, conveyed to David Gilchrist, James N. Loughery, Joseph N". McCartney, Samuel Gress, and James McGee at the price of $25,000.00, of which the said purchasers paid down $5,000.00, and gave their four promissory notes for the balance, as follows: One note for $2,000.00, payable April 20, 1874, and three for $6,000.00 each, payble, respectively, at one, two, and three years from December 20, 1873, with interest thereon from the latter date. To secure said notes the said purchasers executed a trust-deed on their moiety of said lands to Robert A. Dobbin, trustee. The trust-deed provided that, in case of any default in the payment of any of said notes at maturity, the said trustee should sell the said lands "at public sale at the Exchange sale rooms, in the city of Baltimore, after having given at least thirty days' notice of the time, place, and terms of sale in two daily newspapers published in the city of Baltimore, which terms shall be one third cash, and the balance in equal payments in one and two years, or all cash, at the option of the purchasers."
On December 9, 1875, the said Joseph N. McCartney, sold and conveyed to Charles Beswick the undivided one twentieth of said lands; and about September 20, 1877, the said David Gilchrist sold and conveyed the undivided one twentieth of said lands to John F. Gilchrist. Afterwards, about January 13, 1876, the said David Gilchrist and John N". Loughery each conveyed to said John F. Gilchrist an undivided one twentieth of said lands upon certain considerations, which the grantors claim have failed, and thus leaving in them equitable interests in said two twentieths of said lands. The vendees paid all of said purchase-money notes as they became due, except the last one of $6,000.00, and its interest, and, being unable to pay this note, Robert A. Dobbin, trustee, advertised the lands to be sold in July, 1878. Under an arrangement made by the said vendees and others, the said Charles Beswick and others went to the city of Baltimore on the day fixed for the sale, and by paying to the trustee $2,400.00, and agreeing to pay the residue of said last note in certain payments, the trustee abandoned the said sale and accepted said agreement. In compliance with this agreement the said Beswick and others paid the whole of said last note except about $2,000.00; and, upon the failure to pay this balance, the said trustee again advertised the said lands to be sold on December 21, 1878, and on said day he sold the whole of the trust lands, and the said Charles Beswick, II. D. Jones, J. B. Eisaman, and Michael Seanor became the purchasers thereof at the price of $2,100.00 in cash, being the balance due on said trust debt.
On the same day of the said sale the trustee conveyed the said undivided one half of said 26, 000, 420, and 768 acres of land to the purchasers. Soon after the said sale the said purchasers sold, and by quitclaim deed dated March 31, 1879, conveyed to Peter Whitehead, the undivided one sixteenth of said lands, in consideration of $1,030.00 paid in cash. Subsequently, in consideration of $6,337.50 in cash, the said purchasers and Whitehead sold, and, by deed, with general warranty, dated January 12, 1883, conveyed to Henry G. Davis, Thomas B. Davis, and Stephen B. Elkins, their undivided one half of said 420-acre tract, and 425 acres, part of said 26, 000-acre tract. Before the sale of December 21, 1878, by the trustee, Dobbin, as aforesaid, the said Joseph N". McCartney and Samuel Gress departed this life; the former leaving a widow and three infant children as his heirs at law, and the latter leaving a son, Gilmore Gress, his sole heir at law.
At the March rales, 1884, the said David Gilchrist, James N. Loughery, James McGee, and the widow and children of the said Joseph N. McCartney, deceased, exhibited their bill in the circuit court of Tucker county against the other persons before mentioned, in which, after stating the facts aforesaid, the plaintiffs aver that the sale of said lands made on December 21, 1878, by Dobbin, trustee, to Beswick and others, is invalid First, because the price was grossly inadequate, being less than one twentieth of the value of the land at that time; and, second, because the trustee did not duly advertise said land and post notices of the sale as required by law.
The plaintiffs further aver that should said sale be held valid, the purchasers at said sale are simply mortgagees, and hold the said lands in trust for the plaintiffs and others. In support of this averment they allege that when the trustee, Dobbin, advertised said lands for sale, the owners, David Gilchrist and others, made an arrangement with said purchasers, Charles Beswick, II. D. Jones, J. B. Eisaman, and Michael Seanor, whereby the latter agreed to attend the sale and purchase the land at such price as would be sufficient to pay the balance of the purchase-money due thereon, together with the costs of sale, and that said purchasers were to give said owners two years in which to redeem the lands by repaying to said purchasers the price paid by them, with proper interest thereon and their reasonable expenses; that in accordance with this arrangement the said purchasers attended the sale and represented to the trustee that they were representing the owners, and thereupon the sale to them was merely formal, at the price of $2,100.00, the balance due on the trust debt; that after said sale the purchasers refused to give the owners any writing showing the terms under which they purchased said lands, and that finally, after they made the sale of part of said lands to Henry G. Davis and others as aforesaid, they wholly and flatly denied that the plaintiffs had any right to or interest in said lands, and positively refused to admit or in any manner recognize the arrangement under which the said purchase was made all of which the plaintiffs aver is in fraud of their rights, and was a part of the original scheme and purpose of said pur- chasers, concocted by them to secure said lands at a nominal price.
The plaintiffs aver that the defendant Whitehead, at the time he made the purchase of the one sixteenth of the lands as aforesaid, and at the time he received a deed therefore, had full knowledge of the rights of the plaintiffs, and the fraud of said purchasers, and that he is not, therefore, entitled to be protected as an innocent purchaser; but, if it should be held that he is an innocent purchaser, then they aver that said purchasers should account to them for the $1,030.00 of purchase-money paid by him for the land so purchased. In respect to the lands purchased by Henry G. Davis and others, the plaintiffs admit that the said Davis and his associates were innocent purchasers, and that being so, they claim that the defendants Beswick and his copurchasers at the trust sale should account for the $6,337.50 received by them for said lands.
The defendants Beswick, Eisaman, Jones, and Seanor, in their joint answer to said bill, say that in June, 1878, Beswick informed the said McCartney that he would be one of three persons to pay off the balance, then about...
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