Goldsmith v. Goldsmith

• Decision Date: 15 April 1899
• Citation: Goldsmith v. Goldsmith, 46 W.Va. 426, 33 S.E. 266 (W. Va. 1899)
• Parties: GOLDSMITH et ux. v. GOLDSMITH.
• Court: West Virginia Supreme Court

33 S.E. 266

46 W.Va. 426

GOLDSMITH et ux. v. GOLDSMITH.

Supreme Court of Appeals of West Virginia.

April 15, 1899

Submitted January 30, 1899

Syllabus by the Court.

1. Repugnant words must yield to the purpose of the grant, where such purpose is clearly ascertained from the premises of the deed, though such words stand first in the grant.

2. A deed made in consideration of maintenance, where there has been a failure to furnish maintenance, will be set aside,--more especially where it has a clause of forfeiture for such failure.

3. To defeat a grantor in the cancellation of a deed because it was made with intent to defraud creditors, there must be a liability chargeable to the grantor at its date.

4. Depositions proving a matter not in the pleadings when taken cannot be read to support an answer afterwards filed, setting such matter up, if objected to.

5. An amended answer should not be allowed, raising new issues where it appears the party knew the facts when he filed his first answer, and is thus guilty of negligence.

Appeal from circuit court, Harrison county; J. M. Hagans, Judge.

Suit by Jacob Goldsmith and wife against Grant Goldsmith. Decree for plaintiffs, and defendant appeals. Affirmed.

John Bassel, for appellant.

Lewis C. Lawson, for appellees.

BRANNON J.

This is a chancery case in the circuit court of Harrison, brought by Jacob Goldsmith and wife against Grant Goldsmith to cancel a deed, resulting in a decree of cancellation, and an appeal by Grant Goldsmith.

By a deed bearing the date of 15th October, 1885, Jacob Goldsmith and wife conveyed to Grant Goldsmith a tract of 46 acres of land, in consideration of maintenance; and the plaintiffs brought their suit in September, 1897, for its cancellation on the claim that such maintenance had not been furnished them. The counsel for defendant contends that even if defendant did not furnish his father and mother a full and sufficient support, but from limited means was unable to do so, and did anything towards it, "to the best of his ability," or perhaps nothing, that satisfies the call of the deed, and it cannot be canceled. We would say at once without analysis of the deed, that it is wholly unlikely that a man of 70 years, and his wife, a few years younger, would convey their little home, all they had for roof or bread, to obtain their support, and make it entirely dependent on the changing pecuniary ability of the grantee. Let us see if these old people, though unlettered and unskilled in writing papers, have committed this blunder, or whether the draftsman would make their deed do what they could not have meant to do. The deed reads thus: "Witnesseth, that Jacob Goldsmith and Susana Goldsmith, for the sum of one dollar to them in hand paid by second party, the receipt whereof is hereby acknowledged, and for their lifetime maintenance, doth grant unto second party, with covenants of general warranty, all of a certain piece or parcel of land situate ***. The conditions of this deed are such that whereas, the above-named party of the second part has agreed to furnish his father and mother, parties first above, a comfortable maintenance during the remainder of their natural lives, and should second party fail so to do, from any cause, then the land herein conveyed shall revert to any son or daughter of first parties, to be chosen by first parties, if both are then living; if not both living, then the one living to make the choice. But so long as second party is living, and endeavoring to perform his part of the stipulations herein named, [he] the said second party is not to be molested or dispossessed, but shall have and hold the above-named real estate free from any and all incumbrance, together with all its appurtenances belonging." How can it be said that this does not provide for the full and adequate support of the grantors? The words are ample to do so, and of the intent there is no doubt. So specific was the intent to guaranty a support, that the deed declares a forfeiture on its failure. But the word "endeavor" is the sole basis of the position of counsel. It is said to mean "to use efforts," "to attempt," "to try," "to strive," and so on. Generally it means that, but that depends on the place, context, and circumstances under which it is found. Shall we use it to destroy the prime intent of the grantors, so plainly twice declared, and take from then the bread of life, or reduce it to a small, dry crust? Would that be a fair or just construction? The law is that a clause first in order in a deed shall stand, and a later repugnant clause fail. If necessary to give meaning to the word "endeavor," as used in this deed, I should say it was used to emphasize the duty already put on the defendant,--to call upon him to fulfill, and demand full compliance, and not to destroy, lessen, and fritter away the main purpose of the deed on the grantors' part. We must give it, if possible, a construction to comport with that main object, and we can do this; but, if we could not, we would eliminate it. "Repugnant words must yield to the purpose of the grant, where such purpose is clearly ascertained from the premises of the deed, though such words stand first in the grant." Flagg v. Eames, 94 Am. Dec. 363.

Now as to the merits: It was the conviction that defendant had not furnished his father and mother the support required by them that impelled his counsel to use the word "endeavor" as above stated. On some evidence to show that defendant had furnished some coal and some other inconsiderable help, and upon the admission that the defendant was poor, without property, dependent upon day labor as a coal miner, counsel argue that this met the demand of the deed, in view of that word "endeavor." Taken at the most, giving to the defendant's evidence its fair weight, he furnished but a poor fraction of support for these aged people, unless we take his broad statement that he did which is without specification. Save his own evidence, there is little or no evidence to show any compliance with his obligations under the deed. Nine witnesses show, clearly, fully, overwhelmingly, the utter failure of the defendant to support his father and mother; and he is virtually the only witness to the contrary, as other evidence only tends to show some coal, a pair of pants, a cheap suit, and some other trivial articles, at different times during years, falling absolutely short of a support,--nothing approximating it. This defendant was about 21 when the deed was made. Instead of staying at home and working the farm for the support of his parents, he roamed here and there over the country, went to Ohio for a year, went to Monongah and to Tucker county, and other points, working in coal mines, and even calling on his mother for money while in Tucker, remaining long away,--in fact, all the time,--and then married and lived with his family elsewhere. He was addicted to drink. Fortunately, a daughter of the old man, Sarah, and two young grandchildren, Edward and Mandana Goldsmith, lived with him and took care of the old people,--Edward Goldsmith, though a boy, working the little farm; and the evidence shows that but for them the old people could not have subsisted. He says he paid the doctor's bill, but the doctor and receipts show that he paid $20, and the father the rest. He did not pay taxes on the land, though he so claimed; for his mother produced receipts for taxes, even on his own head, for years 1886 to 1896. He wrote letters from Tucker county in January, 1893, asking (I should say, imploring) his mother to send him $30 to buy out a man who, he said, had everything necessary for him (the defendant) to go to housekeeping on. The mother sent the money. Again he wrote his father and mother, and in a postscript said, "So sarah you can send me some goosery and I can use them and al the molasses to I will take every thing you gave me and be glad to get it for i am very hungry now." In another letter to his sister, January, 1893, he wrote and asked some one ("Kit") to send a balance, whatever she thought right, "i bound to have the money to go to housekeeping," and said, "i dont no weather I ever come home eny more." This is...