Salyer v. Salyer

• Court: Virginia Supreme Court
• Writing for the Court: Before I'ANSON; COMPTON
• Citation: Salyer v. Salyer, 216 Va. 521, 219 S.E.2d 889 (1975)
• Decision Date: 01 December 1975
• Docket Number: No. 740720,740720
• Parties: Ada SALYER et al. v. Ira SALYER. Record

Page 889

219 S.E.2d 889

216 Va. 521

Ada SALYER et al. v. Ira SALYER.

Record No. 740720.

Supreme Court of Virginia.

Dec. 1, 1975.

Jerry R. Tiller, St. Paul (G. G. Popp, Popp & Tiller, St. Paul, on brief), for appellants.

Benjamin F. Sutherland, Clintwood (T. J. Bondurant, Bondurant & Schelin, Lebanon, on brief), for appellee.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In 1921, a parcel of farm land in Russell County containing 88.5 acres was conveyed to Carless H. Salyer and Ira Salyer, his brother. The title to that property is the subject of this litigation between Carless' heirs at law and Ira. The issue we decide is whether Ira was the beneficiary of a resulting trust in the property. We conclude that he was and affirm.

In 1971, Carless' widow, Ada (now Ada Salyer Mitchell), and the five children of her marriage to Carless, the plaintiffs below, filed this suit against Ira, the defendant below, contending they were joint owners with him of the foregoing tract of land and seeking its partition in one of the modes prescribed by law. See Code § 8--690 Et seq. The plaintiffs alleged they were the sole heirs at law of Carless, who died in 1929, and that Carless and the defendant acquired title to the property by the 1921 deed.

In his answer, Ira denied that Carless was the owner of an undivided interest in the property. He claimed to be 'the equitable owner of the entire fee simple title' and asserted that Carless was merely the holder of the bare legal title to the tract as trustee for Ira. He averred that the plaintiffs should be denied partition because a resulting trust, of which he was the beneficiary, had arisen. Alternatively, he alleged he had acquired title to the tract by adverse possession.

The cause was referred to a commissioner in chancery who, after considering evidence heard Ore tenus in January and April of 1972 and depositions taken in July of 1972, reported that partition should be refused. He found that the plaintiffs' suit was barred by laches and that Ira had acquired title to the property by adverse possession.

Exceptions filed by the plaintiffs to the commissioner's report were overruled by the chancellor. In the final decree, the report was confirmed, the plaintiffs' prayer for partition was denied, on the basis that a trust in favor of Ira had been created and on the theory of adverse possession, and a special commissioner was appointed to convey the plaintiffs' interest in the tract to Ira. We granted the plaintiffs an appeal from this final decree entered in April 1974.

The assignments of error attack the correctness of the chancellor's decision as it relates to both the trust theory and the doctrine of adverse possession, but our view of the suit requires discussion of only the former subject, and the evidence which bears on that topic.

Although proof of the plaintiffs' property interest in the land was the initial issue raised by the pleadings, the broad question with which we are concerned is whether the defendant established a resulting trust in the property by clear and convincing evidence. See Kellow v. Bumgardner, 196 Va. 247, 256, 83 S.E.2d 391, 396 (1954).

The defendant's testimony, given when he was 78 years of age, received the necessary corroboration, Code § 8--286, ¹ from his witnesses and the county land records. It established that prior to April 13, 1921, Ira and Carless, who both 'farmed and logged' at the time, decided to purchase two farms, a mile apart, in Russell County; one (Tract A) is the subject of this suit and the other (Tract B) was a parcel containing 65.5 acres. They agreed that the farms would be owned separately but that both of their names would appear on the deeds because '(i)t made it better to get a loan by having both names on each deed.' They planned to cooperate by signing the necessary documents to enable each of them to finance the purchase of his individual parcel. Carless suggested, and Ira agreed, that Tract B, the more desirable property, would be bought 'for' Carless and that Tract A would be bought 'for' Ira. They also agreed that when the debts on the respective farms had been fully paid, Carless would transfer his interest in Tract A to Ira and Ira would do likewise with reference to Tract B.

Thereafter, Tract A was conveyed to 'Ira Salyer and C. H. Salyer' by deed dated April 13, 1921, reciting a consideration of $4602, and Tract B was conveyed to 'Ira Salyer and Carless Salyer' by deed dated December 2, 1921, reciting a $4000 purchase price.

Both deeds were duly executed and recorded. The deed to Tract A provided that the consideration would be paid in three equal annual installments, the first payment being due one year after the date of the deed. It further recited that this obligation was evidenced by negotiable promissory notes made by the brothers payable to the grantors and that a vendor's lien was specifically retained on the property to secure the payments.

Although the deed to Tract B recited that the entire consideration was paid in cash at the time of the conveyance, there is credible evidence that the brothers each paid a portion of a down payment of $500 ² when the legal title was transferred and that the balance of the purchase price was to be paid with funds later borrowed, using Tract B as security.

In accordance with their agreement, Ira and his family moved to Tract A, occupying it exclusively and living in 'a little log barn' on the tract, and Carless, with his family, moved to Tract B, occupying it exclusively and living in 'a good house' on that property. Each farmed his separate parcel, although they 'worked together' using farm machinery and equipment owned individually by Ira. A first cousin of the brothers, who drove a pulpwood truck for them, testified that Carless always claimed ownership of Tract B but he 'never heard him refer to (Tract A).'

Apparently, the full cash payments to the grantors of Tract A were not made as specified in the 1921 deed because, in 1923, a $2400 loan was obtained from the Federal Land Bank of Baltimore. In connection with that transaction, the brothers and their wives executed a note and deed of trust encumbering Tract A in favor of the bank. The balance of the purchase price of Tract A was then paid to the grantors with these funds. The evidence establishes that eventually the entire consideration for the purchase of Tract A was paid by Ira individually. ³

The balance of the purchase price on Tract B was curtailed partially during the period from 1921 to 1929 by funds borrowed from various individuals and the Federal Land Bank, the loans being evidenced by notes and secured by encumbrances on Tract B, which were also executed by the brothers and their wives.

In 1929 Carless was killed in a mining accident. Thereafter, Ada used the proceeds from insurance on Carless' life to pay some of the outstanding debts on Tract B. When she was unable to pay the balance due the Federal Land Bank, it foreclosed in 1931. The property was sold at public auction and purchased by Ada for $302.45, as the highest bidder, free and clear of all liens. At the same time, Ira and his wife, by quitclaim deed, released all of their right, title and interest in Tract B to Ada and her children. Thereafter, the plaintiffs remained in exclusive possession of Tract B until it was sold by them in 1945.

Subsequent to Carless' death, Ira continued to make regular installment payments to the Federal Land Bank on the balance due on the purchase price of Tract A until this obligation was discharged in 1962. In 1963, Ira realized the property was still titled in Carless' name. He testified he then asked the plaintiffs to execute a deed releasing their interest in Tract A to him in accordance with his agreement with Carless, but they each refused, after Ada and several of her children intially indicated assent.

During the period from 1921 to 1972, Ira maintained exclusive possession of Tract A; he farmed the land; he made improvements on the property; he paid for repairs to the premises. In addition, there was evidence that Ira paid the real estate taxes on the property, probably during the entire period, but certainly 'since '28.' The property had been assessed, according to the evidence, in Ira's individual name since 'shortly' after Carless' death.

The defendant's evidence further showed that no claim of ownership was made by any of the plaintiffs at any time before 1963 and no action with reference to Tract A was taken by them thereafter, until this suit was filed in 1971.

The evidence offered by the plaintiffs, several of whom had lived in the vicinity of the property all their lives, included the testimony of Ada, given when she was 73 years of age, and the testimony of three of the children of her marriage to Carless. This testimony raised only minor conflicts in the evidence. For example, Ada denied having any knowledge before 1963...