Seefried v. Clarke

• Decision Date: 14 March 1912
• Citation: 74 S.E. 204,113 Va. 365
• Parties: SEEFRIED et al. v. CLARKE et al.
• Court: Virginia Supreme Court

74 S.E. 204

(113 Va. 365)

SEEFRIED et al.

v.CLARKE et al.

Supreme Court of Appeals of Virginia.

March 14, 1912.

1. Partition (§ 17*)—Action—Scope op Rem

edy.

Under Code 1904, § 2562, providing that the court in the exercise of its jurisdiction in partition may take cognizance of all questions of law affecting the legal title that may arise in any proceeding, as well between tenants in common, joint tenants, and copartners as others, there may be determined, in such a suit, the validity of a deed which must be avoided that there may be a partition, and the invalidity of which is asserted on the ground of mental incapacity of the deceased grantor and that it was in violation of a trust on which he held the legal title.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 53-59; Dec. Dig. § 17.*]

2. Equity (§ 148*)—Multifariousness.

A bill is not multifarious because seeking to avoid a deed on one of two grounds: That the grantor was mentally incompetent, or that the deed was in violation of a trust on which the grantor held the legal title.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 341-367; Dec. Dig. § 148.*]

3. Wills (§ 675*)—Precatory Trusts.

A will giving to testatrix's husband all her property, "with one simple request, that the said estate be divided with my children * * * as his better judgment may direct, " creates a precatory trust, which, while giving some discretion, is not executed, but breached, by a conveyance of the greater part of the property to one of the children, with no provision for the others.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1587-1589; Dec. Dig. § 675.*]

Appeal from Circuit Court, Henrico County.

Suit by Ida H. Clarke against Florence C. Seefried and others. From the decree, Florence C. Seefried and certain other defendants appeal. Affirmed.

John A. Lamb and Jno. B. Minor, for appellants.

John B. Gayle, C. R. Sands, and McGuire, Riely & Bryan, for appellees.

KEITH, P. Mary Carter, of the county of Henrico, left a will by which she appointed her husband, Thomas J. Carter, her executor, and by the second clause bequeathed to him, "his heirs, administrators, or assigns, all of my estate, real and personal, with one simple request, that the said estate be divided with my children or its equivalents, as his better judgment may direct."

This will was admitted to record, and Thomas J. Carter took possession under it of the entire estate. On the 15th day of April, 1907, he made a deed by which he conveyed to Florence Seefried, one of his daughters, a portion of the real estate which had been devised to him by the will of his wife, and after his death his daughter Mrs. Clarke filed her bill, in which she made all of the other children of Thomas J. Carter, including Florence Seefried, parties defendant, averring that the deed from her father to Florence Seefried was executed at a time when the grantor's mind had become greatly impaired, that he was subject to hallucinations, and that he was totally incapable of making a valid deed or contract of any kind. The bill prays a partition of the real estate of which he died seised, in kind, if such partition may be had, and, if it cannot be done with due regard to the rights of all par-ties, that it may be sold and the proceeds divided among the parties entitled thereto. There was an amended bill in order to introduce an additional party, and, for the purpose of setting forth as an additional ground of relief, that under the terms of the will of Mary J. Carter a trust in said tract of land was created for the benefit of the plaintiff and her sisters; that the execution of the trust was imposed, by the terms of the will, on Thomas J. Carter, who had no right, power, or authority to dispose of the same in any manner other than that specified in the will, namely, by its division between the children of Mary J. Carter; and that, for these reasons, the deed of April 15, 1907, from Thomas J. Carter to Florence C. Seefried, was a violation of the trust created by the will, and therefore null and void; and that, since Carter not only neglected and refused to perform the trust imposed upon him by said will, but committed an express breach of the same, the complainant and her sisters are entitled to have the trust enforced for their benefit by a court of equity, and the land divided among all the children of Mary J. Carter, the testatrix.

There was a second amended bill, the only object of which was to introduce an additional party.

These bills were demurred to upon several grounds, viz.: (1) Because the court was without jurisdiction to hear the case; (2) because the interpretation placed by the bill upon the will of Mrs. Carter, the mother of Florence Seefried, is not correct; (3) because the plaintiff attempts, by bill in chancery, to try the title to real estate; and (4) because, if the plaintiff has any remedy, it is by an action of ejectment.

The plaintiff and the defendants all deduce their title from the will of Mary J. Carter. The object of the bill is the partition of certain real estate, among those entitled. To the accomplishment of this object it was necessary to remove the deed by which Thomas J. Carter had conveyed the greater portion of the real estate in controversy to his daughter, Florence Seefried. To accomplish this object the bill states two propositions, either one of which, if well founded, is fatal to that deed and to the rights of those claiming under it. The first proposition is that the deed is invalid because the grantor was mentally incapable of executing such a deed; and, secondly, that by force of the trust created by the will of Mary J. Carter her husband and devisee, Thomas J. Carter, had no power to execute such a deed.

It will be observed that the object of the bill is one over which a court of equity has undoubted jurisdiction; that its sole purpose, its sole object, is to secure a partition of real estate among the parties in interest. This right, if the bill be true, may be established, and this point may be reached, by one of two routes, either of which accom plishes the result, and, if the allegations of the bill are true (and upon demurrer they are taken to be true), the deed which is the subject of attack is of no effect for both reasons.

Section 2562 of Code 1904 declares that tenants in common, joint tenants, and coparceners shall be compellable to make partition; and in the last clause it is provided that "any court, having general equity jurisdiction of the county or corporation wherein the estate, or any part thereof, is, shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, as well between tenants in common, joint tenants, and coparceners as others." Davis v. Tebbs, 81 Va. 600; Fry v. Payne, 82 Va. 759, 1 S. E. 197; Bradley v. Zehmer, 82 Va. 685; Pillow v. S. W. V. Imp. Co., 92 Va. 144, 23 S. E. 32, 53 Am. St. Rep. 804; Laurel Creek Coal & Coke Co. v. Browning, 99 Va. 535, 39 S. E. 156; Moon v. Highland, etc., Co., 104 Va. 551, 52 S. E. 209; Hagan v. Taylor, 110 Va. 9, 65 S. E. 487.

With respect to this statute it may be said that the Legislature has manifested a purpose to broaden and extend the jurisdiction of courts in partition suits, and that, whenever a question has arisen in a partition suit which the statute was held to be not broad enough to embrace, the Legislature has promptly met the situation by an amendment, the latest of which is that of 1903. As the act stood before that date, and as it is found in the Acts of 1897-98, at page 488, the language of the last clause was that a court of equity "shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceedings;" but, it having been suggested that this only conferred jurisdiction to pass upon questions arising between tenants. in common, joint tenants, and coparceners, the act of 1903 was passed (Acts 1902-3-4, p. 836), which adds, immediately after "proceedings" in the conclusion of the statute, the words "as well between tenants in common, joint tenants, and coparceners as others."

We shall not undertake either an inclusive or an exclusive demarcation of the lines of jurisdiction under this very broad grant of power. We have no doubt that it is sufficient to comprehend the case before us.

The cases upon the subject of multifariousness in bills are very numerous. We shall refer to only a few of them.

In Snyder v. Grandstaff, 96 Va. 473, 31 S. E. 647, 70 Am. St. Rep. 863, it is said: "A bill is not rendered multifarious by presenting alternative views, or different aspects of the same facts. There must be distinct collocations of distinct and different facts, each presenting different rights, and calling for different relief, to render a bill multifarious."

In Hill v. Hill, 79 Va. 592, it is said that "a bill is usually deemed multifarious for containing different causes of suit against same persons when these two things concur, to wit, the different causes must be wholly distinct, and each cause must be sufficient as stated to sustain a bill"—citing Huff v. Thrash, 75 Va. 550. "But there is no general rule applicable to all cases. Segar v. Parish, 61 Va. 679. And where the causes, though distinct, are not absolutely independent of each other, and it will be more convenient to dispose of them in one suit, the objection for multifariousness will not prevail."

If the plaintiff in this suit, for instance, had filed a bill asking for partition, making the proper parties, and alleging her right to partition upon the ground that the deed from her father to Florence Seefried was void because the will under which he took the devise had created a trust in favor of all his children, and had filed another bill asking partition of the identical property among the same...