McClure v. Cook

• Decision Date: 01 December 1894
• Citation: 20 S.E. 612,39 W.Va. 579
• Parties: McCLURE v. COOK et al.
• Court: West Virginia Supreme Court

20 S.E. 612

39 W.Va. 579

McCLURE v. COOK et al.

Supreme Court of Appeals of West Virginia.

December 1, 1894

Submitted June 23, 1894.

Syllabus by the Court.

1. The general rule is that the power to sell is an inseparable incident of the ownership of property, which makes it liable to the owner's debts.

2. Such power cannot be fettered or restrained, except in certain cases.

3. Where such restraint is in the exercise of power which is a part of the dominion of the grantor, not parted with, but retained and exercised for some purpose beneficial to the security of his own right, such as to keep the property bound by a charge created and imposed upon it, and to hold the grantee to the personal performance of the duties given him in charge, the general rule does not apply.

4. Where, in a deed of settlement from father to son, a tract of land is conveyed on the consideration that the son will support for life his father and his wife, the grantors, and the deed, taken as a whole, shows the intention to be to charge the real estate conveyed as security for the performance of such duty, it is not necessary that a lien on the land for such support be expressly reversed on the face of the conveyance.

5. A case in which these principles are applied.

Appeal from circuit court, Wyoming county.

Action by W. B. McClure against Jacob A. Cook, Jacob Cook, and Malinda Cook, to subject land to the payment of a judgment. From a judgment in favor of plaintiff, defendants Jacob and Malinda Cook appeal. Reversed.

Jas. H McGinnis, for appellants.

Johnson Watts & Ashby, for appellee.

HOLT J.

The decree complained of was pronounced by the circuit court of Wyoming county on the 16th day of April, 1891; holding a certain tract of land bound by the liens of certain judgments, and subjecting a life interest therein to sale for their payment. The question raised turns on the meaning and effect of the following deed: "Deed. This deed, made and entered into this 13th day of January, 1888, between Jacob Cook and Lynda Cook, his wife, of the first part, and Jacob A. Cook, of the second part, all of the county of Wyoming and state of West Virginia, witnesseth: That for and in consideration of the parental love and affection that the said parties of the first part have for their son *** Jacob A. Cook, party of the second part in this deed, and for a further consideration,--that is, that the party of the second part is to support, maintain, and care for the said parties of the first part, in a genteel and decent manner, during the lifetime of the said parties of the first part: Now therefore, in consideration of the premises aforesaid, the parties of the first part do give, grant, and convey unto the party of the second part a certain tract or parcel of land lying and being in the county and state aforesaid, situated on the waters of the Clear fork of Guyandotte river, about two miles west of the town of Oceana, and bounded and described as follows, viz.: *** containing 123 3/4 acres by survey, be the same more or less; 32 acres being patented to said Jacob Cook; 15 acres being a deed from Isaac Cook to said Jacob Cook; 13 1/4 acres being the same land deeded to said Jacob Cook by C. F. Cook and wife; 15 acres being a part of a 284-acre survey deeded to the said Jacob Cook by W. B. McClure, commissioner of school lands; 48 1/2 acres, a part of a 100-acre survey owned by said Jacob Cook. The following are the conditions upon which the party of the first part conveys said property unto the party of the second part; that is to say, the parties of the first ___ are to retain the possession of and occupy the property where they now reside so long as they live; and it is expressly understood in this conveyance that the property hereby conveyed by the parties of the first part unto the party of the second part is only conveyed unto the party of the second part to have and to hold the same during his lifetime, and at his death the same is to descend to and the title thereof vest in his children of the said party of the second part; and it is further understood in conveyance that the said party of the second part is not to sell or dispose of any part or interest in or to said property without the consent and approval of the said parties of the first ___ thereto. The parties of the first part covenant with the party of the second part that they will warrant generally the property hereby conveyed. In witness whereof, they have hereunto set their hands and fixed their seals the day and year first in this deed written. Jacob Cook. [Seal.] Linda Cook. [Seal.]"

The plaintiff, in his bill, charged that defendant Jacob A. Cook his judgment debtor, was the owner in fee of this tract or parcel of land containing 123 3/4 acres; that his judgment, which had been docketed, was a lien thereon,--and prayed that the liens, with their amounts and priorities, might be first ascertained, and then the land sold or rented in satisfaction thereof. Jacob Cook, the father, answering the bill, says that he is 77 years old, and his wife, Malinda, 73 years old; that they are feeble, unable to work and make a living, and have no means of support other than the land; that he and his wife, by the deed inquisition, granted and conveyed the tract of land of 123 3/4 acres to their son, Jacob A. Cook, for life, with remainder in fee to his children, but upon the consideration and express condition and trust that their son, Jacob, should support, maintain, and care for him and his wife in a genteel and decent manner during their lifetime, and to make sure that the land should not be taken from them, and these conditions left unperformed, it was further expressly provided in that instrument that he and his wife were to retain possession of and occupy the property where they resided so long as they lived, and that their son was not to sell or dispose of any part or interest in the property without their consent and approval; that their son has failed and refused to support them, and is now insolvent, and unable to do so,--and therefore he prays that the deed may be set aside, or that the land be held liable and set apart for their support so long as they, or either of them, shall live, and for general relief. Treating this as a cross bill, the defendant Jacob A. Cook, the son, answered it and the bill of plaintiff, and his children, the infant defendants, answered by their guardian ad litem, and plaintiff entered a general replication. At a hearing had on these papers on the 17th day of October, 1890, the court referred it to a commissioner, with directions to ascertain the liens, their nature, dignities, and amounts; whether the rents and profits would pay off the liens within five years; and what land, if any, defendants Jacob Cook and Linda, his wife, were entitled to retain possession of during their lives. The commissioner took the accounts directed, and various depositions, but submitted to the court the question what interest, if any, Jacob Cook and wife had in or against the land conveyed by them to their son. On the 16th day of April, 1891, the cause again came on to be heard, when the court confirmed the commissioner's report as to the liens; held that the judgment debtor, Jacob A. Cook, took, under the deed, a life estate in the tract of land of 123 3/4 acres (except 1 1/5 acres, a part thereof, theretofore conveyed by Jacob Cook and wife to John F. Fisher, released from...