Nbase v. Capehart, Exor.

• Citation: 8 W.Va. 95
• Court: West Virginia Supreme Court
• Decision Date: 20 July 1874
• Parties: Nbase v. Capehart, Exor.

8 W.Va. 95

Nbase

v.Capehart, Exor.

Supreme Court of Appeals of West Virginia.

July 20, 1874.

1. When a debtor has conveyed land to a trustee to secure a debt, and

afterwards another person and the debtor agree that the former shall purchase the land and hold it as a security for the purchase money he pays, and accordingly the debtor acquiesces and the other purchases the land, the transaction constitutes a trust which a court of equity will enforce.

2. Time does not commence to run against a suit to enforce an express

trust, till the trustee, by word or act, denies the trust, and the beneficiary has notice of the denial.

3. When a trustee sells the trust subject and receives the money for

it, though he promises the beneficiary to pay the money, the court of equity nevertheless retains jurisdiction to enforce the payment

4. A bill cannot be maintained by distributees against an executor of

his own wrong, who has sold property of the deceased, to have an account and obtain a decree against the former for the proceeds of the sale, unless the rightful personal representative be a paity plaintiff or defendant.

5. When the evidence in behalf of a plaintiff in equity is sufficient

to establish his claim, but the counter evidence adduced by the defendant impeaches and contradicts it, and there is such conflict that the court cannot decide the question of fact satisfactorily, it directs an issue.-

The opinion of the Court contains a sufficient statement of the case.

The Hon. James W. Hoge, judge of the circuit court of Mason county, presided at the hearing below.

James H. Ferguson, William H. Tomlinson and John U. Myers for the appellants.

J. W. English, William A. Quarrier and Edward J >. Knight for the appellees.

Hoffman, Judge:

Madison Nease and others, before or early in the year 1870 the time does not appear exactly brought their suit in equity, against James Capehart, executor of James Capehart, and Henry Capehart, in the circuit court of the county of Mason. In their bill they allege:

That James Capehart and Henry Capehart were brothers, and that the wife of Rogers was their sister: That in the year 1839, Henry Capehart and Nehemiah Rogers were jointly seised of two tracts of land in the county of Mason: That being indebted to Tiernan & Co. and M. & F. Tiernan, they, on the 16th day of November in the year 1839, conveyed the lands to George W. Stribling as trustee: That he, on the 6th day of July, 1840, sold the lands to James Capehart, for the sum of $1,367.53; and that the trustee, by deed dated the 6th day of July, 1840, conveyed the lands to the purchaser: That before the sale was made, it was expressly contracted and agreed by and between Henry Capehart and Rogers, of the one part, and James Capehart, deceased, of the other part, that the former should purchase the lands at the sale, for the use and benefit of the latter, and hold the title for their use and benefit until they should repay him the amount of the purchase money with its interest; and that, upon such payment, he should reconvey the lands to them; and that he should permit them to remain in peaceable possession thereof and have and enjoy the rents and profits thereof for their own use and benefit: And that, in pursuance of this agreement, James Capehart did purchase the lands for the sum mentioned, and authorized and permitted Henry Capehart and Rogers to remain in possession of the lands and have the rents and profits:

That Henry Capehart and Rogers agreed that the former should have and hold as his own, in severalty, the smaller of the tracts, containing 150 acres; and that Rogers should have and hold as his own, in severalty,-the other tract, containing 482 acres; and it was agreed between them and James Capehart, deceased, that the latter, upon being paid his purchase money and interest, should convey to Henry Capehart the smaller tract in severalty, and to Rogers the larger tract in severalty:

That Henry Capehart and Rogers paid to James Capehart the sum of $1,367.53 which he had paid, with the interest that had accrued thereon, before the 31st day of March, 1860; when James Capehart, deceased, by deed of that date, conveyed to Henry Capehart the smaller tract of land:

That James Capehart permitted Rogers to remain on the larger tract as his own and receive the rents and profits thereof, to his own use and benefit, till some time in the year 1850; when, with the consent of Rogers, James Capehart, sold and conveyed to Levi Roush, 200 acres, part of the larger tract, by deed dated the 16th day of August, 1850, for the sum of $475; and at the time of the sale it was agreed by and between James Capehart and Rogers, that the sum last mentioned should be received by the former and applied as a credit on the indebtedness of Henry Capehart and Rogers to James Capehart; and that in fact that sum was paid to and received by him: And that Rogers continued in possession of the residue of the larger tract and enjoyed the rents and profits thereof to his own use until his death, which occurred on the 18th day of July, 1852; and that thereafter, Sarah Rogers, his widow, continued in possession and received the rents and profits till the 12th day of December, 1854, and that thereafter, Charles Rogers, one of the children and heirs of Nehemiah Rogers, continued in possession and received the rents and profits, to the use oi himself and his co-heirs:

That on or about the 23rd day of October, 1859, James Capehart, without the consent of Rogers heirs, by deed of that date, sold to Samuel Coit the residue of the land, (except about 13 acres which James Capehart had previously sold to the Mason County Mining and Manufacturing Company), and received for that residue the sum of $15,000 in different payments, with interest on those that were deferred; the last of which was paid the 1st day of October, 1868:

That the plaintiffs are the children and heirs and husbands of children and heirs of Rogers, (for whom James Capehart held the legal title in trust): That Rogers died intestate, possessed of a large amount of personal property: And that James Capehart of his own wrong administered upon, took possession of, sold and otherwise disposed of the property to the amount of $1,000; and never rendered any account or made any settlement, but appropriated the proceeds to his own use and benefit:

That before the sale to Coit, James Capehart had been repaid and overpaid his debt:

That after the sale of the land last mentioned, upon James Capehart's assurance that he had made the sale for their exclusive use and benefit, and that he intended and would account for and pay to them the proceeds of the sale when received by him, they acquiesced in the sale, and the plaintiff, Charles Rogers, who was then in possession of the land, as one of the heirs of Nehemiah Rogers, accordingly surrendered the possession to Coit:

That James Capehart never accounted to or with the plaintiffs or any of them for the money received by him from Samuel Coit, or for any of the money or property received by him, James Capehart, as in the bill set forth; nor has his executor since the death of the testator ever accounted for any such money:

That James Capehart departed this life in 1869, having made his will, by which he appointed James Capehart, Jr., the defendant, (and another person who refused to qualify,) his executors; and James Capehart, Jr., qualified in the proper court as the sole executor, and took upon himself the administration of the estate of James Capehart: That the testator died seised and possessed of a large real and personal estate of the estimated value of $200,000 or more.

The plaintiffs pray that the executor may be required to account to and with them, for the proceeds of the sale to Coit and the other sales stated, made by the testator to Roush and the Mason County Mining and Manufacturing Company; and for the proceeds of the personal estate of Rogers, deceased, administered upon by the testator; and that an account be taken, stated and reported of all the payments made by Henry Capehart and Nehemiah Rogers to the testator on account of the debt of $1,367.53; and that the executor be required to make and file an inventory of all the real and personal estate of his testator that came to his hands to be administered: And that the plaintiffs have such other relief as to equity pertains.

James Capehart, Jr., the executor, in his answer, admits the relationship of James Capehart, deceased, Henry Capehart and the wife of Rogers; the execution by Henry Capehart and Rogers of the deed of trust to Stribling, trustee; the sale of the lands by the trustee, and purchase by James Capehart, deceased, and the execution of the deed by the former to the latter, as alleged: But the respondent says:

He denies that there was any contract or agreement express or implied on the part of James Capehart, deceased, with Rogers and Henry Capehart, or either of them, to purchase the lands for their use and benefit, or to hold the title till they should repay him the amount of the purchase money, and then reconvey to them, or permit them to hold and occupy the lands as their property and enjoy the rents and profits thereof for their own use and benefit: But on the contrary the respondent alleges that the sale was absolute and unconditional, and that James Capehart, deceased, by virtue thereof, became possessed of the absolute title as far as Henry Capehart and Rogers were concerned:

That James Capehart was compelled to purchase the lands for his own protection and security, for the following reasons: On the 31st of March, 1838, Henry Capepart and Rogers conveyed the lands to Samuel G. Shaw, to secure the payment of the following debts: A bond to James Capehart, deceased, for $617.35 of the same date with the deed, payable on demand; a bond to John Capehart for $1,000 dated the 15th of March, 1838, payable on demand; a bond to indemnify James Capehart, deceased, as security for Henry...