Plaintiff v. Petitioner
| Decision Date | 28 November 1895 |
| Citation | 41 W.Va. 283 |
| Parties | Wilfong et al. v. Johnson et al. |
| Court | West Virginia Supreme Court |
A sister agrees to convey to her brother a certain tract of land, and, in consideration thereof, the brother agrees to support their aged father and mother during their natural lives, and that he will bind himself thereto by wri ten contract after the conveyance shall have been made. The sister conveys the land to him, with recital of the receipt of a money consideration of fifty dollars. Held, it is competent to show by parol evidence what was the contract between the parlies, and what was the real additional consideration for the conveyance of the land, as what the grantee was to do was collateral to the conveyance, and it contained no recital inconsistent with such collateral undertaking or contradictory thereof.
The brother, having accepted the conveyance, and having been put in possession of the land, failed and refused to support his father and mother, but made haste to sell and convey the land, and thereby to render any enforcement of his undertaking ineffectual. Held, a sufficient ground to rescind the contract and set aside the deed.
3. Sale ok Land Pendente Lite Purchaser Pendente Lite. A purchaser of the land from the brother pendente lite need not Le brought in as a party to the suit. The law imputes notice to such purchaser, for public policy requires that this real property, specifically sued for, shall abide the result of the suit; and such purchaser is as conclusively bound by the decree as if he had been a party from the beginning.
A case in which these principles are discussed and applied.
W. G. Conley and Dayton & Dayton for appellant:
I. 'Answers, c. can only be filed at rales or in Co art. 38 W. Ya. 409.
II. Reversal for want of necessary parties. 10 W. Va. 1; 10 W. Va. 59; 4 W. Va. 531; 4 W. Va. 571; 11 W. Va. 175; 21 W. Va. 2; 21 W. Va. 124; 33 VV. Va. 155.
III. Compromises favored in law. 1 Parson's Con. Bk. 2, § 4, p. 438: 1 Ves. Sr, 444; 6 Munf. 406; 2 Band. 442. C. 0. Strieby for appellees, cited 8 W. Va. 291; 10 W. Va. 298; 12 W. Va. 371; 8 W. Va. 174; 20 S. E. Rep. 899; Sand, Suit Eq. 694, 695; 38 VV. Va. 409; 11 W. Va. 511; 18 W. Va 693; 22 W. Va. 444.
Holt, President:
On appeal from a decree of the Circuit Court of Tucker county entered on the 24th day of June, 1893, affirming a decree of 27th November, 1891, which set aside a deed for fifty six acres of land made by Wilfong and wife to S. O. Johnson.
Plaintiff Sarah E. Wilfong and defendant S. O. Johnson are son and daughter of defendant Richard P. Johnson. Richard P. Johnson and his wife were old and infirm, with no means of support, and unable to maintain themselves by labor. The son S. 0. Johnson, agreed with his sister, S. E. Wilfong, to furnish the support for R. P. Johnson; and, in consideration thereof, S. E. Wilfong and her husband, B. J. Wilfong, by deed dated the 15th day of September, 1886, conveyed to defendant S. O. Johnson a certain tract of land in Tucker county, calling to contain fifty six acres. The deed contained nothing on its face showing the true consideration, but recited a consideration of fifty dollars. S. O. Johnson was to bind himself and the land by a separate contract in writing. He failed to support his father and mother, and refused to enter into any written contract binding himself to do so.
In January, 1891, S. E. Wilfong and her husband brought her suit in chancery, making S. O. Johnson and the father, R. P. Johnson, defendants. They alleged the facts as stated above; that he refused to enter into any contract in writing; and that he had failed and refused, and still fails and refuses, to support his father and mother; and that plaintiffs had been compelled to divide with them their moderate means to prevent them from becoming a county charge; and that said S. O. Johnson obtained the deed by said fraudulent device and subterfuge; that it was made for the benefit and maintenance of the father, R. P. Johnson; that plaintiffs have been compelled to support him and his wife since the conveyance of the laud, and at an expense of six hundred dollars; and they pray that the deed may he canceled, or that the land may he sold to pay said sum of six hundred dollars, and for general relief.
Depositions were taken, and then the parties met, and entered into an agreement by which Sarah E. Wilfong and B. J. Wilfong, her husband, bind themselves to dismiss the chancery suit upon the following conditions, viz: That the said S. 0. Johnson is to furnish one-half of the support of R, P. Johnson and wife, etc., and the parties of the first part bind themselves to furnish one-half of such support; and the parties agree that R. P. Johnson may stay in one of the houses now occupied by B. J. Wilfong, etc.; and it closes by saying:
The question of law that arises in the case is one of competency of verbal evidence. But in this I see no serious difficulty. The contract was wholly verbal. The performance of it was intended to be, on the one side, by conveyance of the land by the sister to the brother; and, on the other, the brother was to enter into a written contract with her, after the execution of the deed, binding himself to maintain and support their father and mother during their natural lives. Why is it not competent to prove this by parol? If the defendant had executed in that sense the contract on bis part, he would have given her some writing whereby he hound himself to maintain his father and mother for life, and would have secured its performance by impressing the land with an express trust to that effect. The contract was intended to be reduced to writing, but the brother, after he had obtained from his sister the possession of the land and the conveyance of the legal title, refused to execute the writing he had agreed to execute, and refused to support, or help support, his father and mother, nor is there any means or way by which or in which he can be compelled to perform his contract; so that there is no effective remedy but to rescind the contract, by setting aside the conveyance, and restoring to the plaintiff her land. The deed upon its face does not express the contract. It was not intended actually or from anything apparent on its face to do so. It is a thing done, rather than a thing said; and the oral agreement is not at all inconsistent with the deed, or contradictory of anything recited therein. It is the true consideration for making the deed, in addition to the formal money consideration therein recited; and nothing in it shows that it was meant to contain the whole bargain between the parties, but it was the execution on the part of the plaintiff of her part of the contract, See Qyeen v.Batson, 71 Wis. 54 (36 N. W. 489); Id. 5 Am. St. Rep. 194, notes; Browne, Par. Ev. p. 125, § 50; Lindley v. Lacey, 17 C. B. (N. S.) 578; 1 Greenl. Ev. § 284a; Thomas v. Scuti, 127 N. Y. 138 (27 N. E. 961). What was to be done in this case was collateral, was consistent with the deed, and not contradictory of any recital contained in it, but, on a well settled doctrine, showed an additional consistent consideration. See full discussion of the subject, and collation of cases pro and con, in Browne, Par. Ev. pp. 125-178, §§ 50, 51.
Whether this paper could be regarded as an equitable mortgage we need not inquire; yet it clearly evinced the purpose to bind the...
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