Hunt v. Hunt

• Decision Date: 10 October 1922
• Docket Number: No. 4642.,4642.
• Citation: 91 W.Va. 685
• Court: West Virginia Supreme Court
• Parties: Rebecca Hunt v. Henry Hunt, Trustee, et als.

91 W.Va. 685

Rebecca Hunt

v.Henry Hunt, Trustee, et als.

No. 4642.

Supreme Court of Appeals of West Virginia.

Submitted October 3, 1922,

Decided October 10, 1922.

1.Fraud Must be Clearly Proved.

He who alleges fraud must clearly and distinctly prove it, either by circumstantial or direct evidence.It will not be presumed from doubtful evidence, or circumstances of suspicion.The presumption is always in favor of innocence and honesty.(p. 691).

2.Evidence-Parol Evidence Admissible to Show True Considera-

tion in Deed But Not for Invalidation; Recited Consideration in Deed Cannot be Attacked as Between Parties to Show no Consideration.

Parol evidence is admissible to show that the true consideration in a deed is different from that named, or that it has not, in fact, been received, if the purpose is not to invalidate the deed as a conveyance.The recited consideration as between the parties cannot be attacked for the purpose of showing the deed was not founded on valuable consideration.(p. 693).

3.Deeds Manual Delivery Not Essential; Delivery Depends on

Intention; Recording by Grantee Shortly Subsequent to Acknowledgment Prima Facie Evidence of Delivery.Manual delivery of a deed is not always necessary to complete the transaction, delivery being a matter of intention often deduced from the action and words of the grantor and the circumstances surrounding the transaction; and where the deed has been recorded within a few days after its acknowledgment, presumably by the grantee or some one for him, it is prima facie evidence of delivery.(p. 694).

Appeal from Circuit Court, Jackson County.Suit by Ilebecca Hunt against Henry Hunt, trustee, and others.From a decree for defendants, plaintiff appeals.

Affirmed.

Lewis II.Millcr, W. F. Boggess, and S. P. Bell, for appellant.

J. L. Wolfe, for appellees.

Lively, Judge:

This suit is for the purpose of cancelling a deed executed by the plaintiff below, and appellant, dated the 9th day of October, 1894, in which her husband joined, conveying two tracts aggregating about 45 acres lying on the waters of Big Mill Creek in Jackson County.The decree, entered the 7th of April, 1922, denied relief and dismissed the bill.

The plaintiff, Rebecca Hunt, was married to Benjamin Hunt, now deceased, in the year 1880.Prior to that time Benjamin Hunt had been married twice, having by his first marriage four children, Henry Hunt, Luverna Hunt, Julius Bunt, and Aldarina Hunt, all of whom are now living with the exception of Aldarina Hunt, who intermarried with John Kay, and afterwards died leaving as her heir Leo Kay; by the second marriage he had one daughter, now Mrs. Ella Oldham.In 1879he owned 126 1/2acres of land which he conveyed to the children by his first wife.His second wife, Miss Sayre, owned 100 acres of land which, after her death, came into his hands as tenant by curtesy.Subsequently he conveyed his curtesy right to his daughter, Ella Oldham, who was the heir to this land.This land is known as the "Oldham tract" in these proceedings.After the marriage of the plaintiff in 1880, they resided on this Oldham land, and in 1889 purchased a portion of the land in controversy containing 14 2/3 acres from James Eice and wife, for the sum of $227.31; on the 15th of September, 1890, purchased the other tract containing 40 acres from the same vendors for the sum of $400.00.It appears that this land purchased from Rice was paid for by the joint efforts of plaintiff and her husband.She says she received from her parents about $250.00, which was used in payment and;hat the remainder was paid with the proceeds derived from farming the Oldham land which her husband possessed as life tenant.In 1894 the deed which she now seeks to set aside was executed by her and her husband.The material pcrtions of this deed are as follows: "This Deed and declaration of trust made this 9th day of October, 1894, by and between Benjamin Hunt and Rebecca Hunt, wife of the said Benjamin Hunt, of the first part, and Henry Hunt, trustee, of the second part.

Witnesseth, That for and in consideration of One Dollar in hand paid, the receipt of which is hereby acknowledged, and the further consideration of the love end affection which the first parties have for each other, the first parties do hereby grant and convey unto the second party, trustee, the following described real estate, ******* To have and to hold, unto the said Henry Hunt, in trust, and the first parties do hereby agree and declare that the said Henry Hunt shall have and hold the said two tracts of land above described in trust for the sole use and benefit of the said Hunt v. Hunt, Trustee.

[Oct, 1922:

Rebecca Hunt and Benjamin Hunt, jointly and equally, share and share alike and equal, and the first parties do covenant to and with the said trustee to warrant to him as such trustee generally the real estate hereby conveyed, and it is further agreed and declared that, in the event of the death of either of the first parties before the other, the said Henry Hunt as such trustee, shall hold the said lands for the sole use of the survivor and until the death of the survivor, and at and upon the death of the survivor to be used in trust by said trustee, for the heirs of the body of the first parties and if either of the first parties should die without heirs of his or her body, then to the heirs of the body of theother.

Witness the following signatures and seals.

Benjamin Hunt(Seal)Rebecca Hunt(Seal)"

This deed was acknowledged before George W. Staats, notary public, on the 9th day of October, 1894, and appears to have been admitted to record in the county clerk's office nine days after it was acknowledged.

The bill charges, and the plaintiff says in her deposition, her husband told her at the time she executed this deed, that it was for the purpose only of securing him his life maintenance and support out of the land in case she first died, and relying upon this representation and without reading the deed she signed and acknowledged it; that she did' not know it made provision for disposition of the land after the death of both grantors.The bill further charges the defendants, who, together with the trustee, Henry Hunt, are the children of Benjamin Hunt by his former marriages, procured the deed to be prepared and executed with the soleobject in view of obtaining inheritance in this land which was in her name, and fraudulently represented to her and her husband that said writing was only for the purpose of guaranteeing the support and maintenance and a home for Benjamin Hunt in ease she should die first, and that they were induced to sign and acknowledge the same in that wayThe evidence totally fails to connect any of the defendants. with the preparation or execution of the deed.It is not shown that any of them knew of its preparation or execution.At the time the deed was executed, the plaintiff was in full vigor and health; at the time her deposition was taken she was sixty-six years old and her testimony concerning the execution of the deed and its purposes is unsatisfactory.She says in one portion of her testimony that the deed was brought to her by her husband and the notary public for her signature, but when her attention was called to the date of the deed, which was the 9th day of October, 1894, and the date of the acknowledgment December 20, 1894, a difference in time of over two months, and she was asked where the deed was kept during that time, she replied, "I must have kept it.'5 She testified also in one portion of her deposition that she did not discover the effect of the deed until after her husband's death; and in another part of her deposition that she ascertained its true import about a year before his death, which occurred in 1920 Her suit was instituted at June Rules in 1921.She says that after the deed was signed and acknowledged by her it was left in her charge by the notary, and she placed it in the drawer of a safe which stood in the sitting or living room with other papers of like character belonging to herself and her husband; that she had charge of the papers in the safe but that he also had access thereto, and usually when any paper was required from that drawer she or some cne by her direction procured them.She also stated that "we had possession of the deed."She afterwards interpreted "we" as meaning herself.She does not know by whom the deed was placed on record, and it does not appear who lad caused it to be recorded.Presumably, it was Benjamin Hunt, for it appeared that the trustee and grantee in the deed knew nothing of its execution until after the tax ticket came out in his name as trustee, and he directed the attention of his father and step-mother to the fact, and they paid the taxes thereafter.It can reasonably be conck.ded that Benjamin Hunt had the deed admitted to record.It appears that plaintiff was able to read and write and had a fair common school education.Although the deed remained in the safe drawer for twenty-six years, where, no doubt, she observed it hundreds of times, she says she never read it nor noticed that it had been admitted to record.While the plaintiff stated that she had no information of the true import of the deed and was led to believe that the effect of it was to secure a maintenance for her husband she also said in answer to another question, "Well, I signed the deed.I signed the deed, but I signed it against my will, for I knew there would be trouble over it in the future.I signed it to keep the good will of the children."Just what she meant by this answer it is hard to determine.Her husband would have been tenant by curtesy without the execution of this deed.Evidently there had been some discussion about the title to this property in which the children had been mentioned or she would not have answered that she signed it to keep the good will of the children.No doubt, had her husband been living, more light would have been given upon the...