Marcum v. Marcum

• Citation: 94 W.Va. 686
• Decision Date: 06 November 1923
• Docket Number: No. 4812.,4812.
• Court: West Virginia Supreme Court
• Parties: Henry Marcum v. Polly Marcum, et als.

94 W.Va. 686

Henry Marcum

v.Polly Marcum, et als.

No. 4812.

Supreme Court of Appeals of West Virginia.

Submitted October 16, 1923.

Decided November 6, 1923.

1. Deeds Grantor in Deed in Consideration of Support Cannot Rescind at Death of Grantees, But Equity Will Administer Property.

Where father conveys his land to his two sons in consideration of their agreement to support and maintain him during his life, and after the grantees have supported him for some time, pursuant to the conveyance, they die, each leaving a widow and infant children, equity will not, at the suit of the grantor, rescind the conveyance but will administer the property for the benefit of all parties, rendering to the grantor his reasonable maintenance out of the income from or corpus of the estate, and preserving for the widows and children all that remains at the time of his death, in such proportions as they are legally entitled to. (p. 690).

2. Samk Where Grantees in Deed in Consideration of Support Die, Land May l)e Leased, or Sold for Maintenance of Grantor.

In such case the court may direct that the land, or so much thereof as may be required for the grantor's support during his life, be leased or sold, and for that purpose may apply either the income or the proceeds of sale, or such part thereof as may be necessary, to the maintenance of the grantor, in a manner suitable to his station in life. (p. 690).

Appeal from Circuit Court, Mingo County.

Suit by Henry Marcum against Polly Marcum and others. From a decree for plaintiff, defendants appeal.

Reversed and remanded.

Stafford & Rhodes, for appellants.

James Damron, for appellee.

Meredith, Judge:

This is an appeal from a decree of the circuit court of Mingo county setting aside a deed made by Henry Marcum to his two sons, James and John B. Marcum, dated June 27th, 1919. The deed recites a consideration of $3,000.00 paid, "and the further consideration that the parties of the second part is to eear and montain the the said Henry Marcum during his natial life;" and purports to convey with general warranty two tracts aggregating 445 acres. It is shown by the evidence of the scrivener that the cash consideration was not paid nor was it intended to be paid. Suit was brought to set aside the deed because of the failure of the grantees to furnish the required support. The court granted the prayer of the bill.

Defendants urged two grounds of error:

First: That the deed was made to hinder, delay and defraud the grantor's creditors, hence he is entitled to no relief.

Second: That assuming the grantor is entitled to support, from the property, he cannot have the deed set aside because there was no default of the original grantees, they having partly performed their contract and died, leaving the property to their widows and infant children, who would have completed performance had the plaintiff permitted them to do so; that had the widows refused performance it was the duty of the court to treat the land as a trust estate and through a receiver, or other officer, rent or sell it, using a sufficient amount of the proceeds to support the grantor during his life and distributing the remainder upon his death among the grantees' heirs and the two widows according to their respective interests.

It appears that Henry Marcum was about seventy years of age; he was handicapped by the loss of an arm and an eye; was ignorant and not of a very pleasant disposition. He and his wife, Verlina, owned together, and undivided, two tracts of land aggregating about 415 acres, upon which they had lived for many years. He owned a store located on the land, which was conducted by his wdfe. They had had twelve children, three of whom were deceased. One or more had married and moved away from the neighborhood. James and John B., the grantees, were married and lived nearby in separate homes, probably on this land. Some of the children were infants and lived with their parents. In June, 1919, Verlina Marcum, wife of plaintiff, left home, taking the in- fant children, and went to Portsmouth, Ohio, where she has lived ever since. According to the testimony of the plaintiff, she stripped the store of about everything in it and took part, if not quite all, of the household furniture. There being no one to care for plaintiff, he proposed to his two sons. James and John B., or they proposed to him (but who made the proposal is immaterial), that the father should convey tc the two sons his land, in consideration of a lifetime support from them. Thereupon the deed was made. It will be observed that, it covers the whole of the 445 acres, ascertained to be 415 acres, while the father had but a half interest therein. Immediately thereafter James, with his wife and children, moved into the home which had been occupied by the father, where they continued to reside until the son James was killed in June, 1920. Shortly thereafter the son John B., with his wife and children, undertook the care of the father, and continued to furnish him a home until the following December, a period of about six months, when the son John B. was killed.

There is no doubt but that the father and the two sons got along well together and plaintiff was satisfied with his treatment, but after the death of the second son troubles arose. Plaintiff and the wife of John B. Marcum could not get along together. Each one states it was the other's fault, but the wife of James Marcum and the wife of John B. Marcum both say that they would have been willing to care for the father had he treated them right. However, they both testify that owing to his conduct they could not remain in the same home and care for him.

It appears that James Marcum had built a store after he moved into the father's home...