Spencer v. Williams

Decision Date30 May 1933
Docket Number7527.
Citation170 S.E. 179,113 W.Va. 687
CourtWest Virginia Supreme Court

Submitted May 11, 1933.

Rehearing Denied Aug. 1, 1933.

Syllabus by the Court.

That plaintiff improved defendant's realty under oral agreement providing for trust deed held not to authorize imposition of trust on property.

Specific performance cannot be granted on oral contract, unless alleged part performance is attributable directly to definite agreement, so far executed that refusal of full execution would operate as fraud.

Oral agreement to give trust deed securing amount expended in improving defendant's property held not specifically enforceable.

In absence of attending equities, equitable lien does not arise for advances enabling owner to improve property notwithstanding verbal agreement for lien.

In the absence of attending equities, an equitable lien does not arise in favor of one who has made advances to another to enable him to make improvements upon his property, though there was a verbal understanding at the time that a lien should be given upon the property improved. Jones on Liens (3d Ed.) vol. 1, § 70.

Appeal from Circuit Court, Mason County.

Suit by J. S. Spencer against Samuel Williams. From a decree sustaining a demurrer to the bill, plaintiff appeals.


B. H Blagg and Somerville & Somerville, all of Point Pleasant, and Poffenbarger & Poffenbarger, of Charleston, for appellant.

T. C Townsend, of Charleston, for appellee.

MAXWELL President.

In this proceeding in chancery, J. F. Spencer seeks to establish a lien against certain real estate of Samuel Williams. Plaintiff appeals from decree sustaining demurrer to his bill.

It is alleged in the bill, filed at December rules, 1931, that in the latter part of the year 1920 plaintiff expended $294.76 for improvements which were then placed on real estate of the defendant, pursuant to an oral agreement between the plaintiff and the defendant, which obligated the defendant to execute to the plaintiff a deed of trust on said property to secure the amount thus expended, but that the defendant after repeated promises to execute such deed has finally declined to do so.

It is urged that under the facts pleaded, equity will impose a trust upon the said property for the benefit of the plaintiff. We cannot accede to this theory. There cannot be an express trust because the agreement pleaded was for the doing of a definite thing by the defendant, namely, to execute a deed of trust. This was a very different thing from an undertaking by the defendant to hold the legal title of the property for the benefit of the plaintiff, which would be the legal effect of an express trust. By the same measure there cannot be said to have been created an implied or constructive trust because any rights that the plaintiff may now have or formerly have had must be based on the specific oral contract pleaded and not upon conduct of the parties. The plaintiff cannot at the same time invoke both an express agreement and an implied trust.

Specific performance cannot be sustained. For such relief to be granted upon an oral contract three conditions must obtain (1) The parol agreement must be definite in its terms; (2) the acts relied on as part performance must be attributable directly to the agreement; (3) the agreement must have been so far executed that a refusal of full execution would operate as a fraud upon the purchaser, and place him in a situation which does not lie in compensation at law. Campbell v. Fetterman's Heirs, 20 W.Va. 398, 403. Granting compliance with the first two requirements, the third stands unapproached. For the money which the plaintiff expended for the defendant he was entitled to judgment at law. This would have made him whole. The relief would have been full, adequate and complete. The plaintiff's claim being thus compensable at law, the right to specific performance was thereby precluded. To hold that the plaintiff is entitled to specific performance now that his right to prosecute an action at law has become barred by the statute of limitations would put a premium on his delay and would grant him relief at this time which he could not have obtained prior to the expiration of the statutory limitation period.

Do the facts pleaded give rise to an equitable lien? The principle is thus defined:

"The doctrine may be stated in its most general form, that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property." 3 Pom. Eq. Juris. (4th Ed.) p. 2962.

The said text is quoted and followed in Knott v. Mfg Co., 30 W.Va. 790, 5 S.E. 266. A statement of this equitable principle, in identical or similar phraseology, is found in numerous West Virginia cases. Fidelity Ins. Co. v. R. R. Co., 33...

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