Smith v. Miller

• Decision Date: 13 September 1900
• Citation: 37 S.E. 10,98 Va. 535
• Parties: SMITH et al. v. MILLER et al.
• Court: Virginia Supreme Court

98 Va. 535

37 S.E. 10

SMITH et al.

v.MILLER et al.

Supreme Court of Appeals of Virginia.

Sept. 13, 1900.

TRUSTS—BONDS—SUFFICIENCY OF EVIDENCE— DEBTS DUE TRUSTEE—RATIFICATION —PURCHASE MONEY.

1. Property was deeded by a grantor to his son in trust to pay "existing" debts and for distribution. Another son, who was one of the beneficiaries of the grantor, testified that he was present when a certain bond paid by the trustee was signed by his father, and that the latter and the witness both thought that it was correct. The trustee testified that the bond covered no items of an account made after the deed of the father. Held not error to allow credit to the trustee for the payment of the bond.

2. Property was deeded by grantor to his son, in trust for the payment of debts and to be distributed among his children. The trustee had prior to that time paid an indebtedness from his father, and received a bond from himX in consideration therefor. Held, that he was entitled to credit for the amount of the bond.

3. Property was deeded by a grantor to his son, in trust for the payment of debts and to be distributed among his children. Prior to that time the grantor had given certain land to such son, but had afterwards sold a portion thereof, and used the proceeds, and had given the son a bond for the amount thereof. Held, that the son was entitled to credit for the amount of the bond.

4. Property was deeded by grantor to his son in trust for the payment of debts, and to be distributed among his children. The father was owing the son at the time, and subsequently gave him a duebill for the amount. Held, that the son was entitled to credit therefor.

5. The purchase of trust estate by a trustee at his own sale, although fairly made, and for adequate consideration, will be set aside.

6. Where a trustee who has purchased property at his own sale attempts to sustain such sale by showing the ratification of the beneficiaries, the burden is on him to establish such fact.

7. A trustee purchased land at his own sale in 1883, and suit was brought to set the sale aside in 1896. There was no evidence that the beneficiaries, one of whom was a married woman, and several were minors, knew of the sale, and the return of the sale to the clerk's office was not made until 1888. Held not sufficient to show that the beneficiaries had ratified such purchase.

8. Where a purchase of land by a trustee at his own sale is set aside, and an account of the rent and profits ordered, but no actual fraud is shown, the trustee is entitled to credit for the purchase money, with interest, and the value of permanent improvements made by him.

Appeal from circuit court, Culpeper county.

Suit by one Smith and others against one Miller and others. From a decree in favor of defendants, plaintiffs appeal. Reversed.

J. F. Strother and M. J. Fulton, for appellants.

J. C. Gibson and H. G. Moffett, for appellees.

RIELY, J. Complaint is made of the allowance as a credit to John B. Miller, In his settled account as trustee under the deed from his father John Miller, of the bond of $904.28. The deed bears date on October 5, 1872, and one of its objects was to secure the existing debts of the grantor. The bond bears date on January 13, 1873, and expresses on its face that it is for the balance found due on a settlement of open accounts between the parties, running from January 1, 1862, to January 13, 1873. The ground of objection to the payment of the bond is that it bears date after the deed, and by its terms Impliedly includes accounts between the parties made subsequent to as well as before the deed, and that it does not appear how much of the consideration of the bond was incurred after the date of the deed, and was not an existing debt at the time of the execution of the deed.

John Miller, by the said deed, devested himself of his entire estate of every kind and description, and, being of advanced age, ceased thereafter to be engaged in any business, having made provision for his maintenanceand support by the exaction of an annuity from each of his children in consideration of the lands divided among them by the deed. The presumption from the evidence is wholly against the creation of accounts between the parties after the execution of the deed, and it was proved by R. E. Miller that he was present at the execution of the bond, examined the account for which it was given in his father's presence, who thought it correct; that it also seemed to the witness to be correct; that the bond was given for the same amount as the balance due on the account, and that he thereupon witnessed the bond. R. E. Miller was trustee in the deed along with his brother, John B. Miller, and a grantee, as one of the four children of John Miller, of the lands divided among them by the deed. It is altogether improbable that he would have sanctioned the bond by attesting it, and thereby made his share of the estate liable for one-fourth of the debt evidenced by the bond, if he had not been wholly satisfied of its correctness. It may be also added that John B. Miller, to whose deposition the appellants reserved the right to except, but have relied upon or rejected it, both in the petition for appeal and in the brief filed by their counsel, accordingly as it suited their purposes, deposed that the account for which the bond was given contained no item after October 5, 1872, the date of the deed. The circuit court did not err in allowing the bond as a credit.

There is even less ground for complaint against the allowance of the bond for $1,123.95 as a credit. This bond bears date July 11, 1871, prior to the date of the deed. The bond, with the exception of the signature, was proved to be in the handwriting of E. T. Jones, a son-in-law of John Miller, and the signature thereto genuine. It was also proved that John Miller owed one G. H. Brown three notes aggregating on July 11, 1871, the sum of $1,123.95; that John Miller asked his son John B. Miller to pay Brown, and prevent his bringing suit; and that John B. Miller executed his note to Brown for $1,000, payable at 20 days, and also transferred to him the note of S. J. Spindle & Co. for $123.95, in full discharge of the indebtedness of John Miller to Brown, who then transferred to John B. Miller the notes of his father without recourse. It was further proved that John Miller thereupon, on the same day, executed to John B. Miller the bond in question for $1,123.95, and that John B. Miller subsequently paid to Brown the note of $1,000.

As to the bond for $2,650 executed by John Miller to John B. Miller on the 1st day of October, 1872, it appears from the evidence that John Miller, on January 1, 1867, gave John B. Miller the part of his "Mt Vernon, " or "Home, " tract of land, known as the "Fork" land, upon which there was a valuable mill. He placed him in possession of the Fork land as his own, giving him full possession and absolute control of it, but did not convey It to him. John Miller afterwards, with the consent of John B. Miller, sold the mill and 10 acres of land to Smoot and brothers, and collected and used the money in paying certain of his debts, and for other purposes, but with the understanding and agreement with John B. Miller that the property so sold to the Smoots should be made good to the son by the father in the future division of his estate. John Miller from time to time' also gave lands to his other children, but did not convey to them the title thereto until the making of the deed of settlement of ...