Hall v. Linkenauger S.

• Decision Date: 10 April 1928
• Docket Number: (No. 6075)
• Citation: 105 W.Va. 385
• Court: West Virginia Supreme Court
• Parties: Mildred Hall v. W. Edward Linkenauger et als.

105 W.Va. 385

Mildred Hall

v.W. Edward Linkenauger et als.

(No. 6075)

Supreme Court of Appeals of West Virginia.

Submitted March 14, 1928.

Decided April 10, 1928.

1. Trusts In Suit to Enforce Parol Trust, Parol Evidence That Consideration Named in Deed Did Not Pass is Admissible.

Parol evidence is admissible to show that the consideration named in a deed did not in fact pass, where the suit is to enforce an alleged parol trust in the land deeded, (p. 389.)

(Trusts, 39 Cyc. p. 81.)

2. Witnesses In Suit to Assert Parol Trust in Deceased's Land, Evidence of Personal Transactions With Her Concerning Land by Plaintiffs, or Other Interested Persons is Inadmissible; if Tenant by Curtsey, Sued to Establish Trust in Wife's Land, Testifies Concerning Personal Transactions With Wife, Adversary's Testimony Relating Thereto is Admissible; "Survivor" (Code, c. 130, §23).

A tenant by curtesy is a survivor within the meaning of sec. 23, chap. 130, Code, and, in a suit against his deceased wife's heirs and himself as such tenant to assert a parol trust in land deeded to her, evidence of personal transactions with her concerning the land, by plaintiffs or other persons interested in the event thereof, is inadmissible; but if the tenant by the curtesy shall give evidence concerning such personal transactions involved in the suit, the bar of the statute is removed, and the testimony of his adversary taken either before or after the teistimony of the tenant by the curtesy becomes admissible, (p. 390.)

(Witnesses, 40 Cyc. pp. 2302, 2342.)

3. Fraudulent CONVEYANCES Defendants Have Burden to Prove Existence of Bona Fide Creditor and Execution of Deed to Defraud Creditors as Defense to Suit to Establish Parol Trust; in Suit to Establish Parol Trust, Defendants' Evidence Held Not to Establish Defense of Conveyance to Defraud Creditors.

Where, in a suit to enforce a parol trust in land deeded in fee to the alleged trustee, the defense, relied upon to defeat the reconveyance of the land in accordance with the trust, is that the grantor made the deed with intent to hinder, delay and defraud a creditor, the burden is upon defendants to prove that there was in fact a bona fide creditor, or one standing in that relation, and that the deed was made with such fraudulent intent. A case where such burden has not been clearly borne, (p. 391.)

(Fraudulent Conveyances, 27 C. J. § 432.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Kanawha County.

Suit by Mildred Hall against W. Edward Linkenauger and others to establish a trust in land. Prom an adverse decree, plaintiff appeals.

Decree reversed; remanded, with directions.

F. B. Shannon and Poffenharger & Poffenbarger, for appellant,

H. D. Rummel, D. 0. Blagg, Arthur Cf. Stone and II. R. Anderson, for appellees.

Lively, Judge:

On September 28, 1923, Robert L. Hall and wife, Mildred, deeded in fee about four acres of land on Ferry Branch, Kanawha County, valued at about $15,000.00, to Martha Linkenauger, who died intestate on September 15, 1925, from the effects of an automobile accident, leaving surviving her, W. Edward Linkenauger, her husband, and five infant children, all defendants in this suit. After her death, Mildred Hall, the mother of Martha Linkenauger, deceased, and wife of Robert L. Hall, grantor in the deed, demanded of W. Edward Linkenauger a deed for his interest in the land claiming that Martha held title thereto from Robert L. Hall in trust with the understanding and agreement that she should convey the land to her, Mildred Hall, the true owner, whenever she was requested by her mother or Robert L. Hall. Linkenauger refused, and this suit was instituted to December Rules 1925. Plaintiff sets up the above facts in her bill, and charges that the deed made to Martha was without consideration, and upon the promise and agreement of Martha to hold the title in trust for plaintiff and convey the legal title to her whenever requested by plaintiff or her husband, Robert L. Hall; and that at all times since the making of the deed she and her husband have resided on the land with full and complete possession and control thereof as if no deed had been made, and paid the taxes and improved the property at great expense. The prayer is that the trust be enforced, and the title be conveyed to plaintiff. The infants answered formally by guardian ad litem. W. Edward Linkenauger demurred and answered admitting that plaintiff and her family had always retained possession and enjoyment of the property, and paid taxes thereon, but averred that such possession and enjoyment was merely permissive. The answer says that respondent is informed and believes that the deed to his deceased wife was for valuable consideration, and denies the alleged trust and agreement to reconvey whenever requested. The answer further says that if there was no consideration paid, and even if there was an agreement to reconvey, the deed was made with intent to hinder, delay and defraud existing and future creditors of Robert L. Hail. It says that one J. W. Howard from 1919 to 1923 had kept and maintained three infant children of Robert Hall, and in June, 1923, had sued Robert on that claim for $3,050.00, which suit was pending at the time the deed in question was executed September 28, 1923, and that it was the intention of Robert in making the deed to hinder, delay and defraud Howard in the collection of his claim, which fact defeats the bill for reconveyance of the title to plaintiff who joined in the deed.

Robert L. Hall was permitted to "reply specially" to Linkenauger 's answer in which he denies that any consideration was paid, and avers the trust as set up by his wife in her bill. He denies that he owed Howard any money, and says that the suit by Howard for $3,050.00 against him was tried on October 16, 1923, and a judgment of nil capiat entered in his favor; and denies that the deed was made for the purpose of hindering, delaying and defrauding anyone. The issues raised are: (1) Was the deed made to Martha Linkenauger with or without payment of consideration, and upon her parol agreement to deed the land to her mother, the plaintiff? (2) Did Robert L. Hall and his wife, the plaintiff, execute and deliver the deed with intent to hinder, delay and defraud a claim in suit pending? (3) And if made with that intention, what effect would the defeat of that claim have upon the prayer of plaintiff for conveyance of the land to her? The decree does not disclose on what issue or issues the cause was decided; it simply dismissed plaintiff's bill at her costs. It appears that Robert L. Hall was the father of seven children all living with him, ranging in age from five to eighteen years by his first wife, and his second and present wife Mildred (plaintiff), on the property in suit.. Mildred had several children by a former husband, and Martha Linkenauger to whom the deed was made on September 28, 1923, was one of them, and the mother of the five infant defendants,

The suit is by the mother against her son-in-law, Linkenauger, and her grandchildren to extract title to the land held by them under a parol trust in favor of plaintiff which existed between her and her dead daughter. The land in controversy is valued at from $15,000.00 to $18,000.00, and including three dwelling houses upon it. Plaintiff and her husband and his seven infant children have always been in possession of the property using it as their own, renting two of the houses and using the rents and paying the taxes, and it appears that a short time before the death of Martha Linkenauger, had improved and repaired one of the houses at an expense of about $400.00. R. L. Hall, who had title to the land when he and plaintiff, his wife, conveyed it to Martha in 1923 under the alleged trust agreement, is a carpenter and builder, and did the labor on the improved house. Defendant Linkenauger is also a carpenter and in years past owned a small house which he sold, and for many years has lived in rented premises. At the time of the deed, September 28, 1923, a suit at law was pending in the circuit court against R. L. Hall instituted by a Mr. Howard to May or June Rules for the alleged support of R. L. Hall's children. This suit was tried by a jury on October 16, 1923, and a verdict rendered in favor of Hall, and judgment entered thereon. It appears that the deed was prepared in some attorney's office, and acknowledged and recorded on September 28, 1923, all at the expense of R. L. Hall. Two years later, September 25, 1925, Martha met sudden death in an automobile collision, the title at that time remaining in her; and upon the refusal of Edward Linkenauger to have the alleged trust executed, this suit was begun. These are the facts about which there is little or no controversy, and form a background on which to consider the conflicting evidence concerning the alleged trust, the purpose of the deed, and the intention of the parties to it.

What consideration, if any, did Martha give for the land? The expressed consideration is $1,000.00. Her financial condition, buttressed by her subsequent declarations, impel the conclusion that she paid nothing. The property was worth from $15,000.00 to $18,000.00, and it is scarcely reasonable that the owners would sell it for $1,000.00. There is no documentary evidence of payment of any sum whatever, except the recitation in the deed. "The entire weight of authority tends to show that the acknowledgment of payment in a deed is open to unlimited explanation in every direction." Goodspeed v. Fuller, 46 Me. 141. "The cases uniformly hold that, although a deed acknowledges the receipt of a consideration, parol evidence is admissible to show that it has not, in fact, been received, if the purpose of the party seeking to introduce the evidence is not to invalidate the deed as a conveyance." Bade v. Levy, 43 Colo. 482; note in 25 L. R. A. (N. S.) 1197. In accord: Wilfong v. Johnson, 41 W....