Hicks v. Wynn

Citation119 S.E. 133
PartiesHICKS . v. WYNN et al.
Decision Date20 September 1923
CourtSupreme Court of Virginia

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Misrepresentation.]

Appeal from Circuit Court, Lee County.

Suit by H. Ketta Wynn and husband against Lillie C. Hicks and husband. From a decree for plaintiffs as against named defendant, the named defendant appeals. Amended and affirmed.

Pennington & Pennington, of Pennington Gap, for appellant.

Pennington & Cridlin, of Jonesville, for appellees.

BURKS, J. Dr. James G. Browning had two daughters, Caladonia C. A. and H. Retta. By deed dated February 19, 1870, he conveyed to Caladonia C. A. for life, with remainder to her heirs, a tract of about 130 acres of land in Lee county, Va. A few years thereafter Caladonia C. A. intermarried with Robert V. Vandeventer,. by whom she had one child, Lillie C, and died when the child was about 11 months old, leaving the said Lillie C. as her sole heir. H. Retta intermarried with John C. Wynn, and she and her husband continued to live with herfather until January, 1896, when both her father and mother died. They had five children. Dr. Browning left a will, made the day before his death, by which he undertook to dispose of all of, his real and personal estate. The parties differ as to the proper interpretation of this will, which is set forth in the margin.1 Mrs. Wynn claimed that, by the deed to Caladonia, her father intended to give her all she was to have of his estate, and that the will gave to her and her children all of the real and personal estate owned by him at the time of his death. Lillie C, the appellant, claimed that the deed to her mother was a mere advancement and that the will "at the most only creates a trust estate out of his properties, the rents, income, and profits of which to be applied, used, and expended "in the interest of my beloved daughter, H. Retta Wynn and her children, '" and that there was an undisposed-of estate after the completion of the trust created by the will in which she had an interest.

Dr. Browning died in January, 1S96, and Lillie C. became of age in May, 1896. On the 17th day of November, 1896, Lillie C. and Mrs. Wynn and her husband entered into a contract, deed, or agreement under seal, whereby, in consideration of certain designated items of tangible personal property and the sum of $300, the said Lillie C. did—

"give, grant, bargain, sell, release and convey unto the said H. Retta Wynn and her heirs any and all interest which she may have or claim, whether legal or equitable, absolute or contingent, vested or hereafter to accrue, in and to any and all of the real and personal estate of the said James G. Browning, deceased, either in Lee county, Virginia, or in Harlan county, Kentucky."

This deed was acknowledged and admitted to record as to all of the parties in Lee county. Va., on the day of its date, but has never been admitted to record in Kentucky. Dr. Browning owned a tract of 800 or 1, 000 acres of mountain land in Kentucky, valuable chiefly for the timber thereon. This land the Wynns recently contracted to sell to a purchaser, who declined to complete the sale until the deed aforesaid from Lillie C. was recorded in Kentucky. They offered the original deed from Lillie C. for record in Kentucky, but recordation was refused, because the acknowledgment thereof did not conform to the laws of Kentucky. Lillie C. had in the meantime intermarried with W. F. Hicks, and a new deed was prepared, uniting the husband, and tendered to W. F. Hicks and Lillie C., his wife, and they were asked to sign and acknowledge the same, but declined to do so. Thereupon this suit was brought by H. Retta Wynn and her husband, John C. Wynn, against Lillie C. Hicks and her husband, W. F. Hicks, setting forth complainant's views of the facts, and praying, amongst other things, that a decree be entered—

"requiring said Lillie C. Hicks and W. F. Hicks to make, execute, acknowledge, and deliver to the complainant H. Retta Wynn a deed conveying to her the real estate owned by James G. Browning, deceased, at the time of his death, situated in Harlan county, Kentucky, or such interest therein as they may have, as stated and set out in said original contract and deed, and, in case of their failure to do so, that the court appoint a commissioner to make such conveyance on their behalf."

The case was dismissed on demurrer as to the defendant W. F. Hicks, but, upon afull hearing on the merits, the relief prayed for was granted against Lillie C. Hicks, and from the decree granting such relief she appeals.

The chief defenses set up by Mrs. Hicks, by answer and cross-bill, were that (1) the deed of November 17, 1S96, was obtained by false representations and fraud, in telling her (a) that the deed to her mother in 1870 was intended by Dr. Browning as her full share of his estate, and (b) that Dr. Browning had by his will given all his estate to Mrs. Wynn and her children; and (2) that she had done all she had ever contracted to do, when she signed and delivered the deed; that she had never contracted to acknowledge the deed, so that it could be recorded in Kentucky; and that, the deed having been accepted, the complainants cannot, after this great lapse of time, about 24 years, compel her to make another deed, or acknowledge the old deed, so as to conform to the recording acts of the State of Kentucky. Respondent also relied upon the inadequacy of the consideration for the deed of November 17, 1896, and declared that even the whole of that had not been paid.

Mrs. Wynn and her husband, in their answer to the cross-bill, admit that, at or about the time the deed and contract of November 17, 1896, was executed, they did represent to the said Lillie C. that her grandfather intended the land conveyed to her mother in 1870, as her full share in his estate, and that he had by his will given all of his real and personal estate to the said H. Retta Wynn, but they deny that these were false representations, and assert that such were the facts. These representations are also set forth in the deed and contract of November 17. 1896, 2 but that document also declares that the said Lillie C. "is now claiming and threatening to put up a claim to a further part of the said estate of the said James G. Browning, deceased, and a claim for the rents from said Farley land, " which was the land conveyed to her mother, and the rents of which it was claimed the said James G. had collected for several years before his death. Mrs. Wynn and her husband did not admit the validity of these claims, but wished to settle the question, and to this end agreed to deliver to the said Lillie C. certain articles of personal property and to pay her $300, and she, in consideration thereof, did release her claims, and executed, acknowledged, and delivered the said deed and contract of November 17, 1896. The $300 was paid and all of the said personal property delivered to the said Lillie C., except a few insignificant articles of household furniture, which Wynn and his wife say were never called for, and which they are ready and willing to deliver at any time.

A misrepresentation, which will avoid a deed or a contract for the sale of real estate, must be a statement of a fact, and not merely an opinion. It must have been made for the purpose of inducing the deed or the contract, and relied upon as a fact by the party complaining, and must have been material and untrue. An expression of a mere opinion is not sufficient to avoid a contract, especially an opinion upon the interpretation of a written instrument which was equallyaccessible to both parties, and even the positive misrepresentation of a fact is not sufficient, if it appears that it was not relied on, and that the party alleged to have been defrauded thereby made an independent investigation of his own in order to ascertain the facts. Max Meadows L. & I. Co. v. Brady, 92 Va. 77, 22 S. E. 845; Watkins v. West Wytheville L. Co., 92 Va. 1, 22 S. E. 554; Dudley v. Minor, 100 Va. 728, 42 S. E. 870; West End Co. v. Claiborne, 97 Va. 734, 34 S. E. 900; Hawkins v. Edwards, 117 Va. 311, 84 S. E. 654.

Men are ordinarily honest in their dealings with each other. Hence fraud will not be presumed, but must be distinctly alleged and clearly proved by him who relies upon it as a ground of action or defense. Hutcheson v. Savings Bank, 129 Va. 281, 105 S. E. 677; Cyphers v. Dingus, 130 Va. 721, 108 S. E. 565.

The allegation that the conveyance by Dr. Browning to Lillie C.'s mother was intended as her full share in her father's estate was not the representation of a fact, but a mere expression of opinion. It was not a representation that Dr. Browning had stated that it was to be in full of her share of his estate, but that such was the effect of his deed. If, however, it had been represented as a fact, it is supported by the testimony of both Wynn and his wife, who testify that Dr. Browning had repeatedly so stated to them. This testimony is opposed only by the testimony of Lillie C. that Dr. Browning had told her that he intended that she should have the mill, which is a part of the home tract, and was not given to her by the will. The will itself is a contradiction of the claim.

As to the representation that Dr. Browning had by his will given all of his real and personal estate to Mrs. Wynn and her children, it is manifest that this was their interpretation of the language of the will, and that the representation was made in perfect good faith, both orally and in writing. It was an expression of opinion on the legal effect of a document that was open to the inspection of the said Lillie C. Moreover, if it be construed to be a representation of a fact, the representation was not relied on. The father of Lillie C, testifying in her behalf, states that he consulted a lawyer of distinction as to the will, and that he said the will "was not worth the paper it was written on"; that he so advised his...

To continue reading

Request your trial
18 cases
  • Holly Sugar Corporation v. Fritzler
    • United States
    • Wyoming Supreme Court
    • February 16, 1931
    ... ... Parrish, 89 S.E. 381; Tinsley v. Gullet Gin Co., ... (Ga.) 94 S.E. 892-894; Hoshaw v. Cosgriff, (8th ... Cir.) 247 F. 22-27; Hicks v. Wynn, (Va.) 119 ... S.E. 133-136; Colt and Co. v. Thompson, 242 P. 1030; ... Green, et al. v. Cox Machinery Co., (Okla.) 244 P ... 414; ... ...
  • Cave v. Wells Fargo Bank, N.A.
    • United States
    • U.S. District Court — Western District of Virginia
    • December 6, 2019
    ...matters than the Defendants, the law is understood to be "equally within the knowledge of all parties" in Virginia. Hicks v. Wyn, 119 S.E. 133, 137 (Va. 1923). And yet, Plaintiff's filings make clear that he was relying on Defendants' representations as to the legal effect of the discharge ......
  • Cars Unlimited II, Inc. v. National Motor Co.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • January 19, 2007
    ...statement, is a misrepresentations of law, not fact, and therefore, it cannot form the basis for a fraud claim. See Hicks v. Wynn, 137 Va. 186, 196, 119 S.E. 133, 137 (1923) (recognizing that misrepresentations of law cannot constitute fraud because "[t]he truth or falsehood of such a repre......
  • Harris v. Dunham
    • United States
    • Virginia Supreme Court
    • August 31, 1962
    ...show that he has relied upon the acts and statements of the other. Costello v. Larsen, 182 Va. 567, 571, 29 S.E.2d 856; Hicks v. Wynn, 137 Va. 186, 193, 119 S.E. 133. And he must be held not to have so relied when it appears that he has made his own investigation, whether complete or not, i......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT