Rachel Short v. John Patton.
| Decision Date | 31 October 1916 |
| Docket Number | No. 2948.,2948. |
| Citation | 79 W.Va. 179 |
| Court | West Virginia Supreme Court |
| Parties | Rachel Short v. John Patton. |
To establish an equitable title to land in a child, under a parol gift thereof by the parent, it is necessary to prove, by direct, unequivocal and clear evidence, the gift, identification of the subject matter as to location and quantity, notorious and exclusive possession thereof, and substantial improvement of the same. (p. 182).
The significance of language used in a parol agreemnt always depends upon the situation of the parties at the time, their prior and subsequent conduct, the nature of the subject matter, the purpose they had in view and all the surrounding circumstances. It sometimes means more, and sometimes less, than the words employed signify in their usual and ordinary acceptation. (p. 182).
Declarations and conduct of a father importing a gift of the home place by him to a son, on which both resided, it being all the land then owned by the former, are properly construed to mean only a gift of the use thereof and profits derived therefrom under a parol license, such as the cutting and marketing of timber, the retention of both possession and written evidence of title by the father, and the substantial advantages incident thereto, being inconsistent with the theory of an absolute gift. (p. 182).
Title.
Land held by an equitable title only is a proper subject of par-tion by a suit in equity. (p. 187).
Appeal from Circuit Court, Roane County. Bill in equity by Rachel Short against John Patton. From a decree for plaintiff, defendant appeals.
Affirmed.
0. J. Chambers and Geo. F. Cunningham, for appellant. Harper & Baker, for appellee.
The decree appealed from, pronounced in a partition suit, involves a contest between a brother and a sister, concerning the title of a tract of land of which the latter claims their father died siezed and possessed. Her assertion of a one third interest in the land, as an heir of her father, is resisted by the brother, upon the theory of a parol purchase by him, of a portion of the land from their father, and of a like purchase of the residue, from another person. The heirs are three in number, one son and two daughters. One of the daughters brought this suit, making her brother and sister parties defendant. The sister of the plaintiff made no defense, but her brother, claiming all of the land, defended vigorously, and has appealed from the decree denying his contention as to the title.
The ancestor, William P. Patton, occupying, as lessee, a portion of a tract of land belonging to Benjamin H. Smith, and never having owned any real estate himself, on the 30th day of October 1874, purchased of Smith, not the leased land on which he resided, but another portion of his land, described as lying between Shadrick Ferrell's land and John Ferrell's land on the north side of Back Hays, (a creek), to the line of William Ferrell on the ridge between Hays and Back Hays. By a survey subsequently made, it has been ascertained that the tract of land so described contains 56 acres. The contract was in writing and provided that notes should be given for the purchase money, when the land should be surveyed, and that a vendor's lien to secure the same should be retained in the deed. The survey seems to have been made about two years later and it is the contention of the defendant John Patton that, when it was made, he, claiming to be the parol vendee of his father, desired an additional and adjoining tract of land out of the Smith holdings, which the surveyor who, he claims, was the agent of Smith, surveyed for him. The purchase price of the land was $5.00 an acre and the purchase money notes, dated Oct. 29, 1876, included much more than the purchase money of the 56 acre tract amounted to. It is conceded, in fact, that they covered the purchase money of both tracts, less the sum of $50.00 which seems to have been paid in cash. The entire boundary, the two tracts combined, was once surveyed as containing 78 acres, the purchase money of which would have been $390. The notes taken amounted to $340. As to whether Smith ever executed a deed conveying the land to William P. Patton, there is much conflict in the testimony. No such deed has been produced, but the sister swears most positively that her father had such a deed in his possession and that she saw it in a trunk belonging to her brother, after the death of her father. On the other hand, the brother denies, on his oath, that such deed was ever in his possession or among the papers of his father. His testimony on this point is supplemented by that of a niece who for some years, made her home with him, and says she, on more than one occasion, examined the contents of her uncle's trunk and his papers, without having discovered such deed.
As the appellant's testimony aided by such other evidence as he has adduced, is clearly insufficient to sustain his contention, it is deemed unnecessary to enter upon any inquiry as to his competency as a witness or the admissibility of his testimony. The facts, as gathered from his evidence and that of all the other witnesses, utterly fail to establish title on the theory of a parol contract partly performed.
At the date of the original contract of purchase, the plaintiff was eighteen years old, her sister twenty, and her brother sixteen, and the home had not, in any way, been broken up. All continued to reside together with their father, until the older sister married, Sept. 9, 1880. For six years after her marriage, she resided in the neighborhood. The father died, March 10, 1885. After his death, the plaintiff, the son and their mother resided together on the farm, until August 1902 when the plaintiff married and left. Thereafter, the son and his mother continued to do so, until the death of the latter September 25, 1912. At the date of the purchase, the land was wild and uncleared. In 1875, a portion of it was cleared and a house erected thereon into which the family moved in the fall of that year. In 1878, the land, both tracts as one, was entered upon the land books, in the name of William P. Patton, and continued to be carried thereon in his name, until and including the year 1884. After that date, it was taxed in the name of John Patton, who claims to have paid all of the taxes assessed thereon, both in his own name and in the name of his father.
Though the son says he made the first clearing on the land and built the house, while his father and family, including himself, resided on the lease, it appears that he was then only a boy, without means with which to pay for the land, and dependent upon his mere capacity for labor, and that other members of the family were likewise contributing to the common support and advancement, by their labor. Before the land was surveyed and the purchase money notes executed, they were all living on the land and laboring together. The father was in ill health and unable to do as much work as the son, it is true, but he did what he could, and all the witnesses admit that he performed some labor.
As to the alleged verbal contract of sale between the father and son, the evidence, other than that of the son, is very indefinite. His sister says there was such a contract, but not that she heard it made. She is unable to tell when or where it was made, or who was present. Her statement seems to be largely a conclusion drawn from circumstances. When asked how she could remember what the contents of the arrangement were, she said "Because he, (meaning her brother), took the land and improved it and took care of father and mother as long as they lived." Four other witnesses testify to loose declarations made by the father, concerning his bad health, lack of strength, financial burdens and reliance upon the son for payment of the purchase money of the land, and they lay much stress upon his age and affliction. One of them said the elder Patton had told him that, if the land was paid for, it was John's; that John would, have to pay for it, for he was not able to...
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