Swick v. Rease
| Decision Date | 12 November 1907 |
| Citation | 59 S.E. 510,62 W.Va. 557 |
| Parties | SWICK v. REASE et al. |
| Court | West Virginia Supreme Court |
Submitted June 17, 1907.
Syllabus by the Court.
Where removal of cloud from title is merely incidental to the primary relief sought, or the plaintiff has no remedy at law neither legal title nor possession is necessary to maintain his suit.
[Ed Note.-For cases in point, see Cent. Dig. vol. 41, Quieting Title, §§ 36-43.]
The statute of frauds has no application to trusts in this state.
[Ed Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 15-24.]
In a chancery suit instituted for that purpose land of H. is decreed to be sold to satisfy a judgment held by S. Shortly after entry of the decree S. by written agreement with H becomes owner and assumes possession of the land. Subsequently, upon advertisement for sale by the commissioner appointed, R. enters into a verbal agreement with S. and the commissioner to buy in the land for S. at a sum sufficient merely to cover costs and expenses of sale, and, upon repayment to him by S. of such purchase money, to convey the land to S. R. bids in the land, pays the agreed price, and obtains from the commissioner conveyance of the legal title. Held, the relation of trustee and cestui que trust is thus created between R. and S., and any purchaser from R. with notice thereof must account to the holder of the equitable title.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 95, 273-276.]
Appeal from Circuit Court, Barbour County.
Bill by F. L. Swick against F. P. Rease and others. Decree for plaintiff, and Rease appeals. Affirmed and remanded.
Ware & Viquesney, for appellant.
Wm. T. George, for appellee.
MILLER, P.
The bill of complaint, the demurrer of the appellant to which was overruled, is substantially that the plaintiff, after the recovery of a judgment by his firm of Baker & Swick against one Himes, acquired title thereto by assignment from his partner; that in a subsequent suit in chancery instituted for that purpose certain deeds made by Himes were set aside as fraudulent as against said judgment, by a decree of 1889 which appointed C. F. Teter commissioner to make sale of 10 acres of land owned by Himes to satisfy said judgment; that in 1890, before sale under said decree, by a written contract with Himes the plaintiff, in consideration of said judgment, became the owner of said land and assumed and has since held possession thereof, farming it and enjoying the rents and profits; that in 1893 he conveyed to the defendant railroad company a right of way for its railroad through said land, which was immediately built and put in operation; that when Commissioner Teter advertised said land to be sold in satisfaction of the plaintiff's debt in May, 1897, he explained to said commissioner that he had sold said right of way and that he was not financially able to purchase said land, when the commissioner suggested that, inasmuch as the residue after payment of costs and expenses of sale would be due to the plaintiff, he could induce the defendant Rease, who was superintendent of the railroad company, to purchase the land for the plaintiff at a nominal sum; that pursuant to such suggestion the commissioner wrote and sent by plaintiff a note to Rease concerning the matter, which being delivered to and read by Rease, the latter entered into a verbal agreement with plaintiff to attend the sale and bid in the land for him, and, as soon as the plaintiff should repay him the purchase money, to convey it to him; that pursuant to said verbal agreement Rease attended the sale and purchased the land at $95, the amount of costs and expenses of sale and a small fee due Teter as attorney; that a few months thereafter plaintiff paid Rease on account of the purchase $17.55; that in different conversations concerning said purchase Rease always told plaintiff that whenever he should pay him the balance of the purchase money he would make him a deed for the land; that, thinking Rease was in no hurry about the money, he did not go to make final settlement and obtain his deed until the summer of 1902, when he was surprised to learn from Rease that he had grown tired of waiting and had conveyed the land to the defendant company on March 21, 1902; that Rease refused, when then requested, to receive the money tendered and to execute a deed to the plaintiff; that Rease was the agent and general manager of the railroad company, who purchased the right of way through said land, and held that position at the time of his agreement with plaintiff; that he fully trusted said Rease and relied on him to carry out his agreement; that, had he been informed or advised Rease would not have carried out his contract, he would have made other arrangements to protect himself and his debt against said land, then amounting to nearly $200; that he is ready and willing to fully reimburse the said Rease. He prays that the deed from Rease to the railroad company be annulled as a cloud upon his title, that the title be decreed to be in him, that upon payment of the balance of the purchase money conveyance be made to him, and for general relief.
The sufficiency of the bill is challenged upon two grounds First, that the plaintiff does not allege legal title or possession; second, that the bill cannot be sustained to impress upon the legal title a trust in favor of the plaintiff, because it is not alleged that the plaintiff invested any money in the purchase, nor that he took possession pursuant to the alleged agreement with Rease, and because the part payment alleged is not sufficient to avoid the statute of frauds. A suit for removal of cloud is one purely of equitable cognizance. There is great conflict of authority as to whether one with purely equitable title may maintain a bill for this relief alone. 6 Pom. Eq. § 730. This writer says: See, also, 4 Pom. 1399. The rule of the federal court is that only one with legal title can maintain a bill simply to remove cloud. Smith v. Orton, 21 How. (U. S.) 241, 16 L.Ed. 104; Frost v. Spitley, 121...
To continue reading
Request your trial