Pusey v. Gardner
| Decision Date | 14 April 1883 |
| Parties | PUSEY et ux. v. GARDNER et al. |
| Court | West Virginia Supreme Court |
Submitted Jul. 8, 1882.
Woods Judge, Absent.[a1]
1. If a party obtains a deed for land without consideration upon a parol agreement, that he will hold the land in trust for the grantor, such trust will not be enforced, as it would violate the statute of frauds and the general rule of law, that parol evidence cannot be admitted to vary, add to or contradict a written contract. (p. 474.)
2. The burden of changing as well as proving fraud, mistake or misrepresentation is on the party alleging it; and a plaintiff is no more entitled to recover without sufficient averments in his bill, than he is without proof of his averments when properly made. The one is as essential as the other, and both must concur or relief can not be granted. (p 476.)
3. It is a settled principle of law and sound policy, that a party can not be permited to disavow or avoid the operation of an agreement entered into with a full knowledge of the facts, on the ground of ignorance of the legal consequences which flow from these facts. (p. 476.)
4. A conveyance from a child to its parent, whether with or without a valuable consideration, is presumed to be valid in the absence of any circumstances or proof tending to show fraud, misrepresentation or undue influence or reasonable grounds, from which the court may presume that the act was not entirely free and voluntary on the part of the child. (p 477.)
5. A conveyance made by a woman immediately before her marriage is prima facie good, and can be impeached only by proof of fraud. (p. 485.)
6. Even where there is no absolute bar from the lapse of time or by the statute of limitations, it is a principle of courts of equity not to take cognizance of an equitable claim after a great lapse of time, and where from the death of parties and witnesses, there is danger of doing injustice, and there can no longer be a safe determination of the controversy. A court of equity therefore will not set aside a deed made by a daughter to her father immediately before her marriage conveying her remainder in land, in which the father had a life estate, upon the ground of undue influence after an interval of thirty-five years and after the death of the father, though the claim of the daughter is uot barred by the statute of limitations, where the case is not a clear one and there are no circumstances which sufficiently account for the delay. (p. 484.)
7. Lapse of time, when it does not operate as a positive statutory bar, operates in equity as an evidence of assent, acquiescence or waiver. (p. 481.)
Appeal from and supersedeas to a decree of the circuit court of the county of Hancock, rendered on the 27th day of July, 1881, in a cause in said court then pending, wherein William C. Pussey and wife were plaintiffs, and John H. Gardner and others were defendants, allowed upon the petition of said defendants.
Hon. George E. Boyd, judge of the first judicial circuit, rendered the decree appealed from.
The facts of the case are stated in the opinion of the Court.
Ewing, Melvin & Riley for the appellants cited the following authorities: 15 W.Va. 567; 57 Mo. 73; 10 W.Va. 718; 11 W.Va. 229; 12 Pet. 253; 8 How. 183; 11 Law Rep. N. S. 531 ; 3 B. Mon. 76; 17 Ohio St. 485; Hill Trust. 157; Perry Trusts sec. 201; 1 Sto. Eq. sec. 309; 2 Lom. Dig. 301, 302; 2 Min. Inst. 597; 31 Barb. 9; 2 Leigh 11; 22 Ohio St. 329; 6 N.Y. 268; 73 N.Y. 499; 11 W.Va. 455; 1 Sto. Eq. sec. 84a; 30 Gratt. 576; 32 Gratt. 411.
John A. Campbell for appellant cited the following authorities: 9 W.Va. 636; 7 W.Va. 289; 18 Gratt. 705; Id. 106; 1 Johns. Chy. 425; 13 Mass. 443; 23 Gratt. 589; 2 Sto. Eq. Juris. sec. 961; 26 Gratt. 392; 1 W. & T. Lead. Cas., Part I., p. 354; 1 Greenl. Ev. sec. 200; 15 W.Va. 582; 22 Gratt. 589; 26 Gratt. 392; 25 Gratt. 373; 23 Gratt. 585; 4 Otto 811; 18 Wall. 509; 1 Sto. Eq. Juris. sec. 64 a; 9 Pet. 404; 8 W.Va. 442; 1 Rob. 161; 6 Gratt. 405; 20 Gratt. 553; 29 Gratt. 762; 18 Wall. 78; Law. Rep. 7 Chy. App. 329; 12 Pet. 224; Brown v. Carter, 5 Ves.; 12 Ves. 376; 1 J. & W. 58; Richards v. Williams, 7 Wheat.; Hughes v. Edwards, 9 Wheat.; 7 Gratt. 112; 19 Gratt. 300; 23 Gratt. 223; 2 Lom. Exrs. 488; 2 Perry Trusts, 860, 869; 30 Gratt. 577; 17 Ves. 289; 10 Gratt. 304; 1 Leigh 457; 23 Gratt. 223; 11 Gratt. 505; 4 Rand. 397; 1 Bishop Married Women, sec. 706; Id. sec. 697.
Daniel Lamb for appellees cited the following authorities: Kerr Fraud and Mistake 192; Dowry 310 (21 E. Chy. R. 121 note); 2 Atk. 254; 32 Gratt. 608, 609; Kerr Fraud and Mistake 150-153; Id. 179; 2 Lead. Cas. Eq. (4th Am. Ed.) Part II., pp. 1176, 1177; 7 Beav. 551, 560; 15 Beav. 278 (11 E. L. & Eq. 134, 138, 139); Law Rep. 7 Chy. App. 329, 338, 339; 8 How. 183; 31 Barb. 9; 2 Leigh 11; 6 N.Y. 268, 272 et seq; 73 N.Y. 498, 502, 503; 10 Hare 260, 262 (44 E. Chy. R.) 252, 254, 255; Law Rep. 1 Chy. App. 252; 32 Ohio St. 329; 15 Sim. 437 ; 66 N.Y. 37; 6 Cush. 472; 2 Ohio St. 209; 24 Conn. 230; 1 Wash. Real Prop. 583, 584; 30 Gratt. 578; 32 Gratt. 416; 2 Wash. C. C. 397; 2 Lead. Cas. Eq. (4th Ed.) Part II., p. 1205; 25 Gratt. 28, 40 et seq; 14 Rep. 220; 33 Gratt. 269; Perry Trusts sec. 860.
Josias Reeves died intestate, in June, 1832, leaving his daughter, Eliza the wife of John Gardner, and three other children to whom his real estate descended. In September, 1832, the said daughter, Eliza, died leaving, as her heirs at law, five children to whom her share of the real estate derived from her father descended subject to the life estate of her husband, John Gardner, as tenant by the courtesy. By a decree, entered on the 10th day of October, 1833, in a suit brought to partition the real estate of said Josias Reeves among his heirs, a tract of four hundred acres called the " Up the County Farm," in what is now Hancock county, with some houses and lots in the town of Wellsburg, was allotted to the five children of said Eliza, subject to the just claims of said John Gardner therein. The said farm was valued in said partition at four thousand eight hundred dollars, and the said houses and lots in Wellsburg at one thousand eight hundred and thirty-eight dollars and twenty-five cents. Two of the said children of Eliza Gardner died soon after the partition at the ages of seven and five years respectively, leaving but three as the joint owners of the said farm and houses and lots, viz: Rachel Ann Gardner, Reason R. Gardner and Josias R. Gardner. The said Josias R. died intestate, in 1869, leaving as his heirs nine children, five of whom are infants, and a widow--all of said children are still living except one of the adults. The said Reason R. died testate, in August, 1877. By his will he devised his one-third of said farm to his widow and only infant son.
The said Rachel Ann by deed, dated May 17, 1844, which was acknowledged on the 22d and duly recorded on the 29th day of May, 1844, conveyed to her father, John Gardner, with covenant of general warranty, all her share, right, title and interest in and to said " Up the County Farm" of four hundred acres of land on the Ohio river. The deed, by its terms, conveys an absolute fee in the undivided one third of said farm " for and in consideration of the sum of one thousand six hundred dollars by the said John Gardner to the said Rachel Ann Gardner in hand paid, the receipt of which is hereby acknowledged," & c., the said Rachel Ann was twenty-three years of age at the time said deed was made and was then living with her father and had been from her birth. On the 29th day of May, 1844, she was married to W. C. Pusey and lived with her father thereafter until, perhaps, 1846, when she and her husband moved to Wellsville and resided there about six years; they then moved back into a house built for them by her father on the said " Up the County Farm" and have continued to reside there ever since. The said John Gardner took possession of said farm in 1833, moved upon it about 1841, and resided on it from that time, using and taking the rents, issues and profits thereof, until his death which occurred May 23, 1878,
W. C. Pusey and the said Rachel Ann his wife, instituted this suit, in January, 1879, in the circuit court of Hancock county against the widow and children of said Josias R. Gardner, deceased, and the devisees of said Reason R. Gardner, deceased, for the purpose of setting aside and declaring void the said deed, dated May 17, 1844, from the plaintiff Rachel Ann to her father, John Gardner, on the ground that it had been obtained by mistake, fraud and misrepresentation and without consideration, and also to have the said " Up the County Farm" partitioned among the parties entitled thereto according to their respective rights. The infant defendants by their guardian ad litem and the adult heirs and widow of Josias R. Gardner, deceased, filed their respective answers to the plaintiffs' bill, depositions were taken by the plaintiffs, and the cause, having been regularly set for hearing, came on to be heard, and on July 27, 1881, a decree was entered therein setting aside, canceling, and annulling the said deed of May 17, 1844, from the plaintiff Rachel Ann to her father, for the one third of said farm, described in said deed, and declaring, that she was also entitled to the one third of the rents, issues and profits of said farm since the death of her father on May 23, 1878, and referring the cause to a commissioner to ascertain and report said rents, issues and profits, & c. From this decree the adult defendants have appealed to this Court.
The said decree is silent as to the grounds upon which said deed of May 17, 1844, was set aside and annulled; but it...
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