Switzer v. Switzer

• Decision Date: 12 November 1936
• Citation: 188 S.E. 161
• Court: Virginia Supreme Court
• Parties: SWITZER . v. SWITZER et al.

188 S.E. 161

SWITZER .

v.SWITZER et al.

Supreme Court of Appeals of Virginia.

Nov. 12, 1936.

Appeal from Circuit Court, Rockingham County.

Suit by W. Storts Switzer against Crawford K. Switzer and others to set aside a deed. From a decree in favor of the defendants, the plaintiff appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

John D. White and W. B. Timberlake, Jr., both of Staunton, for appellant.

Conrad & Conrad, Edward C. Martz, and H. W. Wyant, all of Harrisonburg, for appellees.

BROWNING, Justice.

This is a suit instituted in December, 1933, to set aside a deed from Cornelia S. Burkholder to Mary Switzer Lincoln, dated December 15, 1924, and recorded on that date, which purported to convey to the grantee valuable real estate located in the city of Harrisonburg, Va.

A recital in the deed was to the effect that it not only vested in the grantee the life interest of the grantor, but it was a designation of the grantee, by the grantor, as her appointee, to take the fee in the property, under the terms of the will of D. M. Switzer, deceased.

D. M. Switzer died seized and possessed of the said real estate. He devised the life estate therein to his daughter, Cornelia S. Burkholder, and clothed her with the power to appoint, by deed or will, such of her nephews or nieces, as she might choose, to whom the property should pass or descend in fee simple at her death, and in the event of her failure to make such appointment or designation the property should pass to all of her nephews and nieces in equal shares.

The plaintiff is a nephew of Cornelia S. Burkholder and is one of the six nephews and nieces who would take the property if there were no appointment under the will.

The plaintiff was a brother of Mary S. Lincoln, now dead, who was the appointee of his aunt Mrs. Burkholder.

Some years after the death of D. M. Switzer, Mrs. Burkholder executed the deed in question, and on the same date her grantee, Mary S. Lincoln, and her husband, conveyed the property to Charles F. Coffman for the consideration of $20,000, of which $5,000 was cash and the residue was represented by fifteen bonds of $1,000 each, secured by deed of trust on the property. By subsequent deeds Warner Bros. Theatres, Inc., became the owner of the property. The trial court decreed that it was a purchaser for value and without notice of the claim or alleged rights of the complainant and that its fee-simple title was not affected thereby. The soundness of this ruling is now conceded by the complainant and it is manifestly correct.

The complainant alleged in his original bill that the deed to his sister Mrs. Lincoln was void and of no effect because it was in fact a part of the effectuation of a sale of the property by Mrs. Burkholder to Coffman, which transcended her authority under the Switzer will, and this being so, there was no valid exercise of the power of appointment, and the property descended to himself and the other nephews and nieces of Mrs. Burkholder, she being dead at the time of the institution of this suit.

Thereafter an amended bill was filed by the complainant because the defendant's demurrer to the original bill was sustained. Substantially the same facts were alleged, but the specific charge was made that Mrs. Burkholder was guilty of fraud in that she secured large pecuniary benefits from the sale to Coffman. It was further contended that the death of Mrs. Lincoln in the lifetime of Mrs. Burkholder invalidated the appointment. This contention and that of the invalidity of the deed to Mrs. Lincoln were abandoned by the complainant in his petition for appeal, but he adhered to his charge that the appointment was fraudulent and its effect was to deprive him of a pro rata interest in the property. Both of the bills prayed specifically that the Burk-holder-Lincoln deed be set aside and concluded with a prayer for general relief.

The complainant's case is epitomized in his petition for appeal under the following items enumerated:

"(1) Cornelia Burkholder profited personally by the exercise of the power, (2) by doing so she was guilty of fraud, (3) complainant is entitled to damages as result thereof, and (4) petitioner was not guilty of laches in asserting his rights."

The defendants, the representatives of the estate of Mrs. Burkholder upon whom the burden of the defense in this case is cast, contend that the complainant in the following language quoted from his petition for appeal admits the correctness of the decree appealed from:

"The complainant for the purpose of this appeal does not contend that the lower court erred in refusing to hold the deed from Cornelia S. Burkholder to Mary Lincoln void and of no effect, the specific relief prayed for in the original and amended bills of complaint. He feels and believes that under the authorities presented to the lower court, the fact that Mary Switzer Lincoln died prior to the death of Cornelia Burkholder does not in itself prevent the appointment from taking effect, furthermore, complainant recognizes that, in the absence of any evidence showing knowl-edge on the part of Warner Brothers Theatres, Inc., that the transaction between Cornelia Burkholder and Mary Lincoln was tainted with fraud, the title to the said Warner Brothers Theatres, Inc., to the real estate involved should not be interfered with."

It is urged that the complainant made one case before the trial court by his pleadings (bills) and quite another in this court by his ...