RUOKMAN v. COX ct Cll.

• Decision Date: 26 November 1907
• Citation: 63 W.Va. 74
• Parties: RUOKMAN v. COX ct Cll.
• Court: West Virginia Supreme Court

63 W.Va. 74

RUOKMAN

v.COX ct Cll.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1907.

Decided November 26, 1907.

1. Trusts Express Trusts Evidence.

Where, at the sale of land under judicial decree to satisfy claims of judgment creditors, a third person agrees with the owner, in consideration of one hundred dollars and repayment to him by the latter of the purchase money, to bid in the land and convey it to the wife of the owner, such third person is thereby constituted trustee of an express trust in favor of the beneficiary so designated in said agreement, (p. 76.)

2. Appeal Review Findings of Fact.

In equity the finding of any fact by the circuit court will not be disturbed upon an appeal, unless contrary to the plain preponderance of the evidence, (p. 76.)

3. Trusts Express Trusts Laches.

Neither the statute of limitations nor laches applies to express trusts, until and from the time the trustee repudiates the trusts by unequivocal word or acts, and such repudiation is so brought to the notice of the beneficiary as to call upon him to promptly assert his equitable rights, t p. 76.)

Appeal from Circuit Court, Marshall County. Action by Dorothy Ruckman against Friend Cox and others. Judgment for plaintiff. Defendants appeal.

Affirmed.

Simpson & Show acre and Caldwell & Caldwedl, for appellants.

Robert White and Riley & Ritz, for appellee. Miller, President:

George W. Ruckman owned two tracts of land in Harrison county, containing in the aggregate 152 1-2 acres, which were sold June 10, 1899, under decree in a suit by his creditors, and purchased by R. D. Leggett at $2205.00. Either shortly prior or subsequently to the sale, the defendant Friend Cox became interested in the purchase. The original and amended bill alleged substantially that, on the day of sale, before the land was knocked down to the purchaser, George W. Ruckman, representing his wife, Dor- othy Ruekman, entered into an oral contract with R. I). Leggett by which the latter, in consideration of $100.00, agreed to bid in the land and convey it to the said Dorothy for the purchase money paid by him; that, about the time of this agreement, the land was being cried at $2200.00, and, Ruekman being asked by Leggett what he should bid, Ruchman requested him to add $5.00, which he did, whereupon said land was knocked dowm to him at the price of $2205.00; that subsequently Leggett went to the home of the plaintiffs, and represented to them that there was likely to be some trouble about the confirmation of the sale and that one Rosser was proposing to make an upset bid, and prevailed upon them to have said George W. Ruekman go to the court house on the day the subject of confirmation was to be presented to the court and assist him therein, which Ruekman did, with assurances from Leggett and Cox, and it was communicated to the judge of the court that Leggett and Cox would carry out the agreement to convey the property to Dorothy Ruekman, whereupon the sale wras confirmed.

This suit wyas brought to and the bill filed at November rules, 1902, against Cox and the executors and devisees of Leggett, to enforce said agreement. The separate answers of the executors and of Cox denied the agreement alleged;, and that of Cox denied any knowledge of such contract, and alleges that he was an innocent purchaser without notice. There was no formal appearance or plea to the amended bill, filed at April rules, 1905. Upon the pleadings and proofs the circuit court, by final decree of June 18, 1906, found and decreed it to have been clearly proven that R. D. Leggett made an agreement with Dorothy Ruekman, before his purchase, whereby he was to purchase the property for her, and receive for his services the sum of $100.00 and be reimbursed the purchase money; that Cox knew of this agreement; that the purchase by Leggett and Cox at said sale was made subject to said agreement; that Dorothy Ruekman had complied with the agreement and that Leggett and Cox had refused to comply therewith; that Cox and C. D. and R. J. Leggett, executors and devisees of R. D. Leggett, held the legal title to said property in trust for Dorothy Ruekman; and that, upon her payment to them of the purchase price and $100.00, she was entitled to a conveyance of the legal title.

The contract alleged and established by proof, made Leggett and Cox trustees of an express trust, growing out of the ageeement and the trust and confidence reposed in Leggett by Dorothy Ruekman. The rules and principles controlling such cases have been frequently declared in the decisions of this Court; and it would serve no good purpose to do more now than to refer to them. See Nease v. Capehart, 8 W. Va. 95; Sellers v. Mohn, 37 W. Va. 507; Currence v. Ward, 43 W. Va. 870; Hamilton v. McKinney, 52 W. Va 317; Hatfield v. Allison, 57 W. Va. 374.

But it is argued that the contract has not been as distinctly alleged, nor as clearly proven by competent evidence, as required. The findings of the circuit court were based on the testimony, unaffected by the incompetent evidence excluded. The contract we think is sufficiently alleged. We have examined the evidence with great care, and are unable to say, as a prerequisite to reversal, that the findings of the lower court are not supported by the testimony. In Weaver v. Akin, 48 W. Va. 546, it is said: "The rules established* by the repeated decisions of this Court, both as to law and equity, is that the finding of any fact by the circuit court will not be disturbed unless it is contrary to the plain preponderance of the evidence;" and the cases referred to are there fully cited.

The question of laches is presented, though it does not seem to have been presented to the court below by plea or otherwise. When applicable, this defense may be made by demurrer or plea where the facts sufficiently appear upon the face of the bill. Philips v. Piney Coed Co., 53 W. Va. 543. In proper cases it seems it may be made without foundation laid in plea or demurrer., 5 Pom. Eq., section 36; Sullivan v. Railroad Co., 94 IT. S. 806. But this defense is inapplicable in cases of express trust, until and from the time the trustee repudiates the trust in unequivocal words, and such repudiation is brought to the notice of the beneficiary in such manner as to call upon him to assert his equitable rights. Philippi v. Philippi, 115 U. S. 151; Speidel v. Henrici, 120 U. S. 227; Wood v. Carpenter, 101 IT. S. 135; Curtis v. Lakin, 94 Fed. Rep. 251; New- man v. Newman, 60 W. Va. 371, 377; Gap en v. Gapen, 41 W. Va. 422.

In recognition of the law of these cases, certain pertinent facts are presented for our consideration as bringing the appellants within their protection. First, it is said that, conceding the agreement made as alleged, Leggett shortly after the sale was confirmed, when Ruckman tendered to him in the presence of Cox a check for the cash payment on the land plus $100.00 for his services, refused to accept the money; second, that in August, 1899, Leggett and Cox dispossessed the plaintiffs by a writ of possession awarded; third, that subsequently in 1900 Leggett, as shown by the evidence, stated to the attorney employed by Ruckman to procure execution of the trust that he did not recognize any agreement whereby he was to convey to Ruckman the property for what he had in it plus $100,00; fourth, that the plaintiffs stood by and saw the defendants improve the property by the...