Titchenell v. Jackson

• Decision Date: 19 September 1885
• Citation: 26 W.Va. 460
• Parties: TITCHENELL v. JACKSON AND FEATHER.
• Court: West Virginia Supreme Court

26 W.Va. 460

TITCHENELL v. JACKSON AND FEATHER.

Supreme Court of West Virginia.

September 19, 1885

Submitted Jun. 12, 1885.

1. If the language of a written agreement is on its face ambiguous the courts will look at the surrounding circumstances, at the situation of the parties and the subject-matter of the contract, and at acts done by the parties under it for aid in giving a construction to its language, but not to the verbal declaratons of the parties. (p. 469.)

2. If a conveyance be made by A. to B., and at the same time and as a part of the same transaction B. executes a written paper wherein he declares, that he purchased the land in trust for C., this constitutes an executed and express trust, and as such it is valid, though C. gave no consideration whatever for being thus made the cestui gue trust. If B afterwards conveys this land to D., who has notice of this trust, a court of equity will set aside such conveyance as fraudulent. (p. 472.)

3. A decree between co-defendants can only be based upon the pleadings and proofs between the complainant and defendants. (p. 476.)

Green, Judge, furnishes the following statement of the case:

At the July rules, 1882, Michael S. Titchenell filed his bill in the circuit court of Preston rounty against Charles W. Jackson and Joseph Feather, in which he stated, that Charles W Jackson had obtained a judgment in the circuit court of Preston against him, and then instituted a chancery suit in said court to subject his farm of fifty acres in said county to the payment thereof, and obtained a decree ordering the sale of said land to pay said debts and the costs of the chancery suit. The terms of sale were enough money in cash to pay the costs ($57.49) and the balance in three installments with interest from date, payable in six, twelve and eighteen months. This land, the bill alleges, was worth $800.00. Joseph Feather agreed to bid in the land for the plaintiff for the amount of the debt and costs of suit, for which the land was sold; and he did so, it being knocked down to him at the public sale by the commissioner for that amount ($180.50.) The understanding between him and Feather was reduced to writing at the time and signed by Feather. A copy of it was filed with the bill and is as follows:

" Joseph Feather has this day bought in the land of M. S. Titchenell for the sum of $180.50, and he agrees that if the said M. S. Titchenell will pay the purchase-money notes as they become due, and shall pay the costs of said suit, which amounts to $52.49, and interest, by January 1, 1881, then the said Feather agrees to let the said Feather agrees to let the said Titchenell have the said land and will make him a good title therefor at the costs and charges of said Titchenell.

Witness my hand and seal this September 6, 1880.

JOSEPH FEATHER, [____.]"

The bill alleges that pursuant to this agreement the plaintiff paid most of said costs before January 1, 1881; and being sick Feather agreed that he might pay the balance of the costs as the notes for the purchase-money fell due; but before they all fell due Feather conveyed said land to said Jackson with the understanding that the plaintiff, Titchenell, could pay said Jackson and have the land on the same terms, on which he was to have it from Feather. The bill expressly alleges, that Jackson, before he purchased said land and had it conveyed to him by Feather, knew of the agreement aforesaid between Titchenell and Feather. After Jackson got his deed for this land, the bill alleges, he got a writ of possession and turned the plaintiff out of the possession of his farm. The bill has in it many matters foreign to the case, but the foregoing are substantially the material allegations: It concludes thus: " In consideration of the premises, your orator asks your honor to cancel and annul the alleged contract and sale and conveyance of said Feather to said Jackson, the same having been, as your orator is advised, in violation of your orator's rights, and is, as your orator alleges, a fraud upon him; and that your honor decree, that your orator have the privilege of paying for said land in pursuance of the agreement between him and Feather, and when your orator shall have so paid for said land, that your honor decree the title thereof to him, and to that end that your honor decree, that a deed be executed to your orator for said land and give to your orator such other and further relief, as to him in equity belongs, or as the nature of his case may require."

This bill was taken for confessed as to Feather; but Jackson filed an answer, which was replied to generally. He states in his answer, that it is true, that in the chancery suit named in the bill there was a decree to sell this fifty acres of land belonging to the plaintiff to pay the debts of the respondent, and that Feather bought it; and that " while the respondent was not advised at the time how the same was purchased, he has learned, that said Feather for the express purpose of aiding the plaintiff purchased said tract of land and gave the plaintiff the paper signed by Feather, which is filed with the bill." This answer denies that the plaintiff ever paid to any one any part of the purchase-money of this land.

Many depositions were taken and they were to a considerable extent contradictory. They proved in my judgment, in addition to the facts admitted by the pleadings, that this tract of fifty acres of land was worth somewhat over $400.00; that Titchenell never complied with his agreement to pay Feather the $52.49, the cash payment which he was to pay before January 1, 1881, nor did he meet any of the purchase-money notes named in the memorandum signed by Feather, dated September 6, 1880, nor did he ever pay any part of these costs or of these purchase-money notes; that on the day of sale Feather bid in this land for the plaintiff, Titchenell, for $180.50, and complied with the terms of sale paying $52.49 in cash and giving his three bonds for $46.00 each, with interest from date, payable in six, twelve and eighteen months, which bonds were signed by Titchenell as security. Feather knew nothing whatever about this land never having seen it, and bought it in for Titchenell at his request and simply for his accommodation. He (Titchenell) was a very poor man and lived upon this fifty acres of land with his family as their home and continued to do so, still he was dispossessed by the writ of possession issued by Jackson after he had bought the land and obtained a deed from Feather. Titchenell paid no rent for the land to Feather for the year he remained in possession of it after the sale. When Jackson had got his deed for this land from Feather, the commissioner of sale, Payne, surrendered the purchase-money notes to Feather, regarding them as so much cash paid by Jackson to him, as the proceeds of these notes were coming to Jackson. When Jackson purchased this land of Feather and obtained a deed therefor, he knew, that it had been purchased in at the public sale by Feather for Titchenell, and Payne, the commissioner of sale, had, before Jackson made this purchase, shown him the memorandum signed by Feather at the time of the public sale. This memorandum was drawn by Payne and by him kept.

There was much evidence taken with reference to matters foreign to the merits of the case, as I consider them, which need not therefore be stated.

This being substantially the case as admitted by the pleading and proven by the evidence, the court on April 19, 1883, rendered the following decree:

" At a circuit court held for the county of Preston on April 19, 1883, this cause came on this day to be heard upon the bill of the plaintiff, process duly executed upon the defendants, the bill taken for confessed as to the defendant Feather, answer of defendant Jackson filed, general replication thereto, exhibits filed, and depositions of witnesses taken, and was argued by counsel.

On consideration whereof, it is adjudged, ordered and decreed that the deed executed on the 13th day of September, by the defendant Joseph Feather to the defendant Charles W. Jackson be and the same is hereby set aside and held for naught. And it further appearing to the court that the said plaintiff upon the payment of the purchase-money mentioned in the contract filed with plaintiff's bill as Exhibit No. 1 to the defendant Joseph Feather, to-wit, the sum of $208.83 being the aggregate of said purchase-money and interest to this date, which is hereby declared to be a lien upon the said tract of land, will be entitled to a conveyance from the said Feather of the fifty acres of land mentioned in the plaintiff's bill. It is therefore further adjudged ordered and decreed that upon the payment of said lien, said defendant Feather shall execute and deliver to the plaintiff a deed with covenants of general warranty for the said tract of fifty acres of land, with area and boundaries as described in the deed from said Feather to said Jackson, dated September 13, 1881, within sixty days from the payment of the said lien aforesaid; and in case he fail or refuse so to do, that Joseph H. Hawthorne, who is hereby appointed a special commissioner for the purpose, shall execute and deliver to the said plaintiff a deed, with areas and boundaries aforesaid, for the said land, which shall operate to convey to the said plaintiff the title of the said Feather acquired by him by his said purchase of said land on September 6, 1880, for which said commissioner shall be allowed a fee of $3.00, to be paid by said Titchenell. And it further appearing to the court that the said plaintiff has been turned out of the possession of said land since his said purchase of the said Feather on September 6, 1880, by the said defendant Jackson, who subsequently...