Linger v. Rohr, 18940

Decision Date21 July 1989
Docket NumberNo. 18940,18940
Citation181 W.Va. 643,383 S.E.2d 825
CourtWest Virginia Supreme Court
PartiesClyde A. LINGER v. Mattie Marie ROHR, Harold J. Rohr, Jean Walton, and Harold Walton.

Syllabus by the Court

1. "Though no contract for the sale of land is enforceable either at law or in equity, unless it be in writing, and no estate in land for more than five years can pass except by deed or will, there are many instances in which courts of equity except transactions, relating to land, from the operation of these provisions, on the ground that they stand upon equities independent of the contracts attending them, and establish constructive trusts in favor of grantors as well as persons not mentioned in the deed." Syl. pt. 2, Floyd v. Duffy, 68 W.Va. 339, 69 S.E. 993 (1911).

2. "By virtue of Code, 36-1-4, a conveyance of land, not fraudulent, may be made to one in trust, either for the grantor or a third person, and such trust may be enforced in a court of equity, upon parol evidence, provided that such evidence 'is so clear as to leave no doubt that a trust was, in fact, created.' Boggs v. Boggs, 125 W.Va. 600, 608, 25 S.E.2d 631 [634 (1943) ]." Syl. pt. 1, Hoglund v. Curtis, 134 W.Va. 735, 61 S.E.2d 642 (1950).

J. Burton Hunter, III, Buckhannon, for Rohr and Walton.

Terry D. Reed, Hymes and Coonts, Buckhannon, for Linger.


This case is before the Court upon the appeal of Mattie Marie Rohr, her sister, Jean Walton, and their spouses, from the February 29, 1988 order 1 of the Circuit Court of Upshur County, denying the appellants' motion to set aside a prior order. The prior order found that the appellee, Clyde Linger, deeded the family homestead to his daughters, the appellants, with the mutual understanding that the appellants held title to the property subject to the appellee's right to reside in the homestead for the remainder of his life. The court further found that, although the appellants obtained a valid deed to the homestead, at the conclusion of the appellee's life, title to the homestead reverted to the estate of the appellee. While there was sufficient evidence in the record to establish that the parties understood that the daughters were taking the property subject to the father's right to live in the homestead during his lifetime, there is no evidence in the record to indicate that following the father's death the daughters were required to reconvey the property to the father's estate. Therefore, the order of the circuit court is affirmed, in part, and reversed, in part.

Appellee, Clyde Linger, is 96 years old. His daughter, appellant, Mattie Marie Rohr, resides in Ohio. His daughter, appellant, Jean Walton, resides in California.

In the mid-1980's the appellee's first wife, of 70 years, died. According to Linger, after his first wife died, he told his daughters he "wanted them to have everything that she had."

Shortly thereafter, on October 16, 1985, Linger executed a general power of attorney to his eldest daughter, appellant Rohr. He describes his daughter as his trusted "best friend." His daughter has never exercised her power of attorney nor has she filed it with the Circuit Clerk's office.

In June, 1986, Linger met Mrs. Freda Fultz at a senior citizens' center. The two became very close. Mrs. Fultz, thirty years Linger's junior, looked after Linger under a "buddy system" organized by the senior citizens' center.

In August, 1986, the appellee developed circulation problems in his legs. His treating physician performed surgery on the carotid artery in order to improve the circulatory problems. His physician stated that the appellee was originally disoriented for a few weeks after surgery, and that such disorientation after surgery was common for persons of advanced age. But the physician examined Linger on September 19, 1986, and found him oriented.

During the period of the appellee's illness, both daughters returned to the family homestead because their father was having difficulty ambulating. The daughter residing in California stayed for roughly two weeks in August, then returned to her home. However, appellant Rohr, of Ohio, stayed with her father from August, 1986, through October, 1986.

During this period, the relationship between Linger and Mrs. Fultz was blossoming. According to Mrs. Fultz, Linger was "begging" her to marry him. On September 7, 1986, she agreed to marry Linger, if he agreed to pay her $30 per day for the care she would provide him.

In early October, 1986, Linger and his daughter, Mrs. Rohr, went to Linger's bank for the purpose of adding his daughter's name to Linger's three certificates of deposit, each valued at $10,000, and Linger's checking account. A bank official advised him of the consequences of adding his daughter's name, and further advised him to see his lawyer. According to the bank official, Linger fully appreciated and understood the consequences of adding his daughter's name to the certificates and checking account. The following day Linger met with yet another bank official who again explained the consequences of adding the daughter's name to the account. The second bank official also found Linger to be fully aware of his actions. Linger then added his daughter's name to the certificates and the checking account. According to his daughter, she considers the money to belong to her father.

Later that day, Linger and his daughter went to the offices of Linger's lawyer of thirty years, W.T. O'Brien. According to the lawyer, Linger wanted to deed his home, valued at roughly $58,000, to his two daughters. The lawyer explained the consequences of the conveyance to Linger. The lawyer specifically recommended that Linger reserve a life estate in the homestead for himself. In his daughter's presence, Linger informed the lawyer that a life estate was not necessary because his daughters would allow him to live in the homestead for the rest of his life. His daughter, appellant Rohr, subsequently stated at trial that it has never been the parties' intention to remove Linger from the homestead where he currently continues to reside.

The deed conveying the property, in fee simple, to the daughters was read to Linger "cover to cover" according to the attorney's secretary, who witnessed its execution and verified that Linger was alert and understood the transaction. The deed was recorded later that day.

A few weeks later, some women at the senior citizens' center were discussing the news that Linger deeded his homestead to his daughters. They asked Mrs. Fultz if she had been made aware of the transaction.

Mrs. Fultz, in turn, asked Linger if he had, in fact, conveyed the property to his daughters. He denied any recollection of the conveyance and continued to do so at trial.

Mrs. Fultz began living with Linger in the fall of 1986 and was being compensated for her services by Linger. On March 18, 1987, appellee Linger filed this action, alleging that both transactions (the deed and the certificates of deposit) were void because appellant Rohr, through undue influence and fraud, coerced her father to make the conveyances.

A trial was conducted before the circuit court in October, 1987. On January 11, 1988, the court issued its findings of fact and conclusions of law. Sometime between the trial and the court's decision, the court notes that the appellee and Mrs. Fultz were married.

Based on the evidence, the trial court found: "[t]here was no evidence offered on behalf of the Plaintiff to show that duress or fraud was used to procure the deed in question or the addition of the name of Mattie Marie Rohr to the Certificates of Deposit and the bank account." The court further found that based on the testimony of the physician (that the appellee was oriented in September, 1986) and the testimony of the bank officials and the lawyer's secretary, Linger was competent at the time of both transactions. 2 Therefore, the deed was valid.

However, based on the testimony of both the appellee, Linger, and his daughter, appellant Rohr, the trial judge found that although the deed validly conveyed the property in fee simple to the appellee's daughters, it was mutually understood at the time of the transaction that Linger could remain in the homestead for life. Therefore, the court ruled that a constructive trust was created wherein the daughters held the real property in trust for the father during his life. The court further concluded that upon the death of the appellee, legal title in the real property would revert to the father's estate. In essence, the order required the daughters, holders of an otherwise valid deed to the homestead, to hold the property in trust for the father during his lifetime, then reconvey the homestead to the estate of the father upon the father's death.

Similarly, the court concluded that any interest Mrs. Rohr had acquired in the certificates and checking account was purely for the purposes of caring for her father.

On appeal, the appellants, the daughters, do not contest the trial court's ruling concerning the certificates of deposit or the checking account. 3 Their sole assignment of error concerns the trial judge's ruling on the deed.

The deed conveyed the property to the daughters. The appellee alleged fraud and duress. Normally, once a trial judge finds that an otherwise valid deed was not procured by fraud or duress, the trial judge would, under other circumstances, be required to find the deed valid and the grantor would be left with no legal remedy. 4 Although the trial judge found that the deed was valid, since it was not procured under fraud or duress, contrary to the statute of frauds, W.Va.Code, 36-1-3 [1923], 5 he further concluded that the grantor retained an equitable interest in the homestead by oral agreement.

In fashioning the equitable remedy, the trial judge relied on W.Va.Code, 36-1-4 [1931] which reads, in pertinent part:

No declaration of trust of land shall be enforceable, unless it...

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1 cases
  • Proudfoot v. Proudfoot
    • United States
    • West Virginia Supreme Court
    • 4 Diciembre 2003
    ...the grantee, except upon a clear showing of one or more of these facts by the evidence." Id. As we explained in Linger v. Rohr, 181 W.Va. 643, 646, 383 S.E.2d 825, 828 (1989), "once a trial judge finds that an otherwise valid deed was not procured by fraud or duress, the trial judge [is] ........

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