Ivey v. Lewis

• Decision Date: 15 June 1922
• Court: Virginia Supreme Court
• Parties: IVEY et al. v. LEWIS et al.

112 S.E. 712

IVEY et al.

v.LEWIS et al.

Supreme Court of Appeals of Virginia,

June 15, 1922.

Sims, J., dissenting.

Appeal from Law and Equity Court of City of Richmond.

Suit by Anna Ivey and others against John W. Lewis and others to recover possession of land, in which complainants had contingent remainders. From a decree dismissing the bill, complainants appeal. Affirmed.

Scott & Buchanan, of Richmond, for appellants.

Charles T. Lassiter, of Petersburg, and Wm. Earle White, of McKenny, for appellees.

BURKS, J. This suit was brought by the appellants to recover possession of 68 1/2 acres of land in Prince George county in which they had contingent remainders, and which they now claim by reason of the happening of the contingency upon which their estates were to vest in possession. They are entitled to recover unless barred by decrees in previous suits relating to the same lands to which they were parties. The trial court was of opinion that they were so barred and dismissed their bill, and from the decree dismissing the bill this appeal was allowed.

The appellants, who were the complainants in the trial court, are the only surviving children of Therina M. Ivey, whose maiden name was Therina M. Heath. On January 27, 1858, when Therina M. Heath, an infant, was about to intermarry with George W. Ivey, they entered into a marriage agreement which was signed and sealed by both of them and duly admitted to record, whereby, amongst other things, in consideration of the intended marriage, she conveyed the said tract of land to Joseph H. Johnson upon the following trusts:

(1) That after their intended marriage, the said George W. Ivey shall have and possess all the property belonging to the said Therina M. Heath except certain cash and bonds which she may possess at the time and receive the profits thereof during the coverture of the said George W. Ivey and the said Therina M. Heath to his own proper use, and

(2) That at the death of the said Therina M. Heath the said Joseph H. Johnson, trustee, shall deliver the property hereinbefore named to such person or persons as the said Therina M. Heath shall designate by will or other instrument of writing disposing of the property, and

(3) In the event that she leaves no will or other instrument of writing disposing of said property, then and in that event it is to be delivered to the heirs at law of the said Therina M. Heath.

(4) That should the said Therina M. Heath have any child or children by virtue of her intermarriage with said George W. Ivey, and shall die leaving such child or children and the said George W. Ivey alive at her death, then and in that event the said George W. Ivey shall hold and possess and receive the benefit of said property for himself and said children, and at the death of the said George W. Ivey the property is to be delivered to said child or children, to them and their heirs forever.

(5) It is also further agreed:

"That said George W. Ivey and the said Therina M. Heath shall have the power during the coverture, by a writing acknowledged before two witnesses, to order the sale of any portion or all of said property by the said trustee, or to exchange it for other property, but the property or other consideration received from such sale or exchange shall be held by said trustee subject to all the conditions and restrictions which are herein set forth."

(6) 'The said property to be "in no way or manner subject or liable to the payment of any of the debts which the said George W. Ivey may at this time owe or which he may hereafter contract."

The marriage was duly had and solemnized. Five children were born of the marriage, but at the time of the death of Therina M. Ivey, the complainants were her only surviving children and heirs at law, and she left no will or other instrument disposing of said property. George W. Ivey, the husband and father of the complainants, died on July 2, 1915. At that time Joseph H. Johnson, the trustee, was dead, and his estate had been committed to J. H. Mercer, sheriff of the city of Richmond. The land was then in the possession of John W. Lewis, who claimed through mesne conveyances under the deed of trust executed in 1872, and a further conveyance executed in 1877, hereinafter mentioned.

By deed bearing date January 29, 1872, George W. Ivey and Therina M., his wife, conveyed the land to R. H. Jones, Jr., and George S. Bernard, trustees, to secure the payment of a note made by George W. Ivey and indorsed by Samuel Stevens, for $110, with interest at 10 per cent. per annum, held by the First National Bank of Petersburg. By deed bearing date March 15, 1877, duly acknowledged and admitted to record George W. Ivey and Therina M., his wife, and R. H. Jones, Jr., and George S. Bernard, trustees, in consideration of $400 paid by the purchaser to George W. Ivey, conveyed the land to B. B. Brooks. Thereafter Brooks applied to Johnson, trustee in the marriage agreement of 1858, to execute to him a deed for whatever interest he, the said trustee, had in the property, but Johnson refused to do so. Thereupon on October 30, 1877, Brooks instituted suit in chancery in the circuit court of the city of Petersburg against George W. Ivey and Therma M., his wife, and Robert H. Jones, Jr., and George S. Bernard, trustees, J. H. Johnson, trustee, and Anna Ivey, Emmett Ivey, Richard Ivey and Charles Ivey, the last four being infants, and theonly children of George W. and Therina M. Ivey, for the purpose of perfecting his title to said land.

The bill set out:

(a) The marriage agreement between George W. Ivey and Therina M. Heath, and the conveyance of the property in question accordingly by the deed of 1858 above referred to, the provisions thereof being set out somewhat at length;

(b) That said Ivey and Therina M. Heath were duly married, and the children above mentioned were issue of the marriage.

(c) That George W. Ivey and wife had, by the deed of January 29, 1872, conveyed the property to Jones and Bernard, trustees, for the purposes set out in that deed, and that default having been made in the payment of the debt secured therein, George W. Ivey and wife being anxious that the said debt should be paid off, the trustees, Jones and Bernard, with the concurrence of Ivey and wife, had made sale of the property to Brooks for the sum of $400, and had conveyed the property to said Brooks as set out in the deed of March 15, 1877, above mentioned.

(d) That said last-mentioned deed had been acknowledged before two magistrates by George W. Ivey and Therina, his wife, and duly admitted to record.

(e) "That your complainant has been advised that he has the right to ask the assistance of this honorable court to perfect his title to the real estate aforesaid by compelling the said trustee to convey to him whatever interest he may have in said property."

The prayer of the bill was that the court would compel Johnson, trustee, to execute a deed to Brooks conveying whatever interest he might have in the real estate referred to, and for general relief. Johnson, trustee, appeared and answered the bill at length, and objected to the execution of the deed on the ground that the sale was not authorized under the powers conferred by the marriage settlement of 1858. The cause was heard on the bill, the answer of Johnson, trustee, the general replication thereto, the answer of the infants by their guardian ad litem, and on the depositions of the witnesses. There was no appearance for Ivey and wife, and the bill was taken for confessed as to them. The decree entered thereon in May, 1S78, recited:

(1) That the tract of land in question was purchased by Brooks for $400, which sum was the fair value of said land, and that said Brooks had expended in improvements thereon not less than $400.

(2) That Ivey and wife are entitled to a life estate in said land, and under certain circumstances an absolute estate therein, and having joined in the deed to Brooks and received the purchase price, had parted with all their interest in said land.

(3) That the court is advised that the trustee, Johnson, had no funds with which to redeem the land, and that Ivey and wife and their children are in necessitous circumstances, and that Brooks is willing to pay Johnson, the trustee, $100 for the use and benefit of the children, in consideration of the execution by Johnson, trustee, of a deed conveying said land to him with special warranty.

(4) That the court is of opinion that the proposal is a fair and just one and a reasonable compensation to the infant defendants for all probable losses by reason of the sale of the land by Ivey and wife to Brooks.

After making the foregoing recital the decree continues as follows:

"The court doth adjudge, order, and decree that B. B. Brooks, the plaintiff, pay to J. H. Johnson, trustee, as aforesaid, the sum of $100, with interest from June 1, 1878, upon the delivery to him by the said trustee of a deed with special warranty for the land in these, proceedings mentioned, said deed to recite the fact that it is so executed by the order of the court in this cause; and the court doth further order that the said Johnson, when he shall have received the money aforesaid, after paying expenses incurred by him to his counsel, pay over the balance to the said Geo. W. Ivey and his wife to be expended by them in the support and the maintenance of the infant defendants, their children, taking their receipts for the same and filing it with the papers in this cause. And it appearing that nothing further remains to be done in this cause it is ordered to be removed from the docket, reserving leave to any party in interest to have the same reinstated for cause on petition."

It will be observed that under this decree Brooks was required to pay $500 for the land although the contract price was only $400 and of this $500 the sum of about $175 was necessary to pay off the debt secured by the deed of 1872, thus leaving a residue of about $325 which, after the...