Heiskell v. Powell et at.

• Decision Date: 10 September 1888
• Citation: 23 W.Va. 717
• Court: West Virginia Supreme Court
• Parties: Heiskell v. Powell et at.

23 W.Va. 717

Heiskell

v.Powell et at.

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1888-Decided March 20, 1884.

1. Where P. enters into an executory contract for the purchase of land, and at the time or afterwards, before the title is conveyed to him, or any part of the purchase-money is paid, by P.'s agreement, H. for F. W. H. pays one third of the purchase-money, and P. & H. pay the residue, and the legal title is subsequently conveyed to P., such payment by H. for F. W. H. creates a resulting trust, in favor of said F. W. H. and such conveyance of the legal title to P. makes him trustee for F. W. H. as to one third of said land. (p. 721.)

2. When the relation of trustee, and cestui que trust: s once established, no subsequent dealing with the trust-property by the trustee can relieve the property of the trust as between the trustee and cestui que trust, (p. 723."'

3. The bar of the statute of limitations will not be applied in equity to the enforcement of a claim, of which equity alone has cognizance, (p. 723.)

Johnson, President, furnishes the following statement of the case:

In July, 1880, F. W. lleiskell instituted a suit in equity in the circuit court of Hampshire county, against J. H. Powell and J. 0. lleiskell. The bill was filed at October rules, 1880. The bill alleges that plaintiff and Powell made a verbal arrangement to buy two certain tracts of land in said county of a special commissioner, who had been appointed by the court; that it was agreed that they were to have each an equal interest in the same, and that Powell was to be represented as the purchaser, and the deed was to be held by him alone for their mutual benefit; that said purchase was made with a view to and for the purpose of a re-sale, and the deed was made to Powell as a matter of convenience and in accordance with their mutual agreement; that the purchase was made, and the commissioner made the deed to Powell; that Powell very soon after the purchase contracted to sell the said tracts of land to J. B. Hoyt & Co., and on March 14, 1871, conveyed them to said Hoyt & Co.; that subsequent to the contract of sale to Hoyt & Co. it was discovered that a Mrs. Peyton had the title to a moiety of said land, and that Hoyt & Co. agreed to pay an additional sum of five hundred dollars for the said title, which sum was by them paid to said Powell for that purpose; that J. C. lleiskell having become the owner of said moiety it was agreed by Powell that said lleiskell should become an equal owner of said lands with the plaintiff and said Powell, and should have his equal share of the profits arising from the sale to Hoyt & Co., in which arrangement the plaintiff acquiesced, and the purchasemoney agreed to be paid to the special commissioner was paid out of the proceeds of the sale to Hoyt k Co.; and after paying the same and all other expenses a large sum was left as profits of the transactions to be divided between the plaintiff, said J. C. lleiskell, and the said Powell; that in the year 187-the said Powell and J no. C. lleiskell had a settlement of said matters between themselves, in which J. C. Heiskell received between live hundred dollars and six hundred dollars as his one third of the profits of said business; that*plaintiff was not a party to said settlement and did not know that such a settlement had been made, until a longtime after it was so made, and is in no wise bound thereby; that plaintiff has received none of the profits arising out ot said sale, and claims one third of the said profits with interest thereon; that Powell denies that plaintiff had any interest in said land, and refuses to make a settlement with him.

Plaintiff further alleges that under the agreement, Powell field the legal title to the land as trustee for himself, John C. Heiskell and the plaintiff, and that after the sale he held the money in trust for the benefit of the said parties, and in refusing to pay the plaintiff his share thereof has violated his trust; and the plaintifl prays for proper relief against the said Powell as such trustee. He also prays, that the defendants be required in their answers to disclose fully the amounts received by them and each of them, and the times when received, the expenses paid by them, and the net amount of the profits of the said land, that proper settlements be made, and the amount due to the plaintiff be decreed to be paid him; ami for general relief.

The plaintiff filed an amended bill, in which he alleged, that in order to complete the purchase according to the agreement, he and said Powell employed John C. Heiskell to make the purchase for them in the name of Powell alone, and authorized him to do all for them that was necessary, in order to speedily and certainly secure for them the said lands. That in pursuance of said authority and instructions the said Heiskell as agent for the plaintiff and said Powell maele the said purchase and paid to the commissioner two hundred and forty-eight dollars ami thirty cents ot the purchase-money, which was paid by said Heiskell tor the saiel plaintiff and said Powell; and that soon afterwards said Powell paid for himself and the plaintiff one; hundred dollars, the residue of the purchase-money; that it was before the sale to Hoyt k Co. that John 0. Heiskell became entitled to a one third interest, and this was before the defect in the title was discovered; that the allegations of the original bill are incorrect as to these matters; that the saiel outstanding title was purchased at the request of and for the benefit of the purchasers Hoyt & Co., and after the sale to them, &c.

John C. Heiskell answers the bill, and in his answer-he insists, that no decree should be rendered against him, as lie only got his one third interest, to which he was entitled, after he had had a settlement with said Powell.

James H. Powell answered the bill, and in his answer he denies, that said K. W. Heiskell paid any part of the purchase-money on said purchase, or that he had any interest whatever in said purchase. He says that he alone requested J. C. Heiskell to purchase for him these lands from the commissioner. He says lie entered into a written obligation with the commissioner to pay him two hundred dollars on the confirmation of the sale and the residue in six, twelve and eighteen months; that no part of the purchase-money was paid at the time the obligation was executed, nor had any been paid prior to that time; that subsequently in consideration of services rendered in negotiating the purchase lie agreed to give-John C. Heiskell a third interest in said land, but he denies that plaintiff was ever consulted by John C. Heiskell or respondent in reference to the interest of J. C. Heiskell in said land; that after respondent's obligation was given to the commissioner, Heiskell settled with the commissioner for respondent alone, a portion of the purchase-money wholly or principally for taxes due for several years on said lands; that after the sale to Hoyt & Co. it was discovered, that the title to a moiety of the land was in Mrs. Peyton, and Hoyt k. Co. refused to complete the purchase or take any part of the land, until the Peyton title could be obtained and conveyed to them; that the title was obtained...