Tuggle v. Berkeley

• Decision Date: 15 January 1903
• Citation: 101 Va. 83,43 S.E. 199
• Parties: TUGGLE. v. BERKELEY et al.
• Court: Virginia Supreme Court

43 S.E. 199

101 Va. 83

TUGGLE.

v.BERKELEY et al.

Supreme Court of Appeals of Virginia.

Jan. 15, 1903.

DEED OPERATING AS MORTGAGE—EXISTENCE OP DEBT—RECOGNITION OF TITLE IN MORTGAGEE—LOSS OF EQUITY OF REDEMPTION— EFFECT.

1. A widow conveyed her residence and garden lot to her son-in-law in consideration that he would pay $000 delinquent taxes against the property, the son-in-law covenanting that whenever the widow reimbursed him he would recon-vey. The widow's interest in the garden lot alone was worth more than $600. She remained in possession of the property. Held, that the conveyance constituted a mortgage, rather than a conditional sale, the three requisites of inadequacy of consideration, retention of possession, and a debt to be secured, concurring; and this last though no express promise to repay the taxes was contained in the deed.

2. A widow, with a large family dependent upon her, conveyed her life interest in her residence to her son-in-law, who boarded with her, and on whom she was dependent for advice, in consideration of his payment of $600 delinquent taxes due thereon, the son-in-law covenanting to reconvey whenever reimbursed. The son-in-law construed this conveyance as a conditional sale, and as vesting title in him, and the widow acquiesced in such construction, thereafter boarding the son-in-law and his wife without charge, as a payment of rent, amounting to $240 annually, until they left the house, when it was agreed that the widow should keep up the taxes and insurance in lieu of rent. Letters of the widow acknowledged the son-in-law as the holder of the absolute title, and she consented to his sale of the garden lot without claiming any interest in the $2,000 proceeds, though she testified that, in consideration of such consent, he had agreed to reconvey the residence to her. Held that, in view of the situation of the parties, the widow's recognition of the son-in-law as holder of the absolute title did not preclude her afterwards asserting her equity of redemption on the ground that the conveyance was a mortgage.

Appeal from circuit court, Frince Edward county.

Suit for injunction by Ellen W. Berkeley and others' against R. B. Tuggle. Decree for complainants, and defendant appeals. Affirmed.

W. H. Mann, for appellant.

Wilson & Manson, for appellees.

CARDWELL, J. W. R. Berkeley, the husband of Ellen Berkeley (spoken of in this record as Ellen W. Berkeley), by deed of No vember 6, 1874, conveyed to R. B. Berkeley his residence in the town of Farmville, the. lot upon which it was situated, and an adjoining lot known as "the garden, " in trust "to be held by him, the said R. B. Berkeley, trustee, for the benefit of Ellen Berkeley during her life, and at her death with remainder to her children, now bom or hereafter to be born, subject to all the restrictions, conditions, and limitations imposed by the will of John W. Wilson, deceased, on the interest given therein to the said Ellen, who is Ellen Berkeley, and her children, in the two tracts of land called 'Hors de Monde' and the 'Home Tract' or 'Spring Hill.' "

From the recitals of this deed it appears that this home conveyed to the trustee for the benefit of the wife and her children was purchased with the proceeds of the interest of the wife and her children in two tracts of land devised to them by John W. Wilson, the father of Ellen Berkeley. There were seven of these children, and, one of them having died subsequent to his father, August 2, 18S6, his share in the property descended to his mother and six brothers and sisters, so that Ellen Berkeley, at the date of her deed, hereinafter mentioned, to R. B. Tuggle, of May 17, 1893, was the owner of an estate for life in this property, and of a one forty-ninth part of the remainder In fee as heir of her deceased son Willis, and each of the surviving six children was the owner of one-seventh of the remainder, acquired under the deed from their father to R. B. Berkeley, trustee, and of a one forty-ninth interest as an heir of their deceased brother, Willis.

In order to obtain money to prevent her life estate from being subjected to the payment of delinquent taxes on the property, Ellen W. Berkeley executed to her son-in-law, R. B. Tuggle, the deed of May 17, 1893, conveying her life estate in the property; which deed, omitting the description of the property, is as follows: "This deed, made this 17th day of May, 1893, between Ellen W. Berkeley, of Farmville, Va., party of the first part, and R. B. Tuggle, party of the second part, wit-nesseth: That for and in consideration of the covenants and agreements hereinafter made by the said R. B. Tuggle to and with the said Ellen W. Berkeley, she, the said Ellen W. Berkeley, doth grant, bargain, sell, and convey unto the said R. B. Tuggle her life estate in that certain house and lot in the town of Farmville; * * * in consideration whereof the said R. B. Tuggle covenants and agrees to and with the said Ellen W. Berkeley that he will pay unto the commonwealth of Virginia, the county of Prince Edward, and the town of Farmville all sums of money which have been hitherto assessed as taxes on said house and lot, for which the same has been returned delinquent, estimated to amount to the sum of $600 principal, interest, and costs. And the said R. B. Tuggle doth further covenant and agree that whenever she, the said Ellen W. Berkeley, shall pay to him the sum of money so paid by him on account of such delinquent taxes, with interest from the time of his payment, to the commonwealth, county, and town, and all sums of money he shall pay on account of taxes hereafter to be assessed upon said house and lot, with interest from the times at which he shall pay the same, he, the said R. B. Tuggle, will reconvey unto her, the said Ellen W. Berkeley, the estate for her life in said house and lot hereby conveyed by her to him. Witness the following signatures and seals this day and year first above written. Ellen Berkeley. [Seal.] R. B. Tuggle. [Seal.]"

By five separate conveyances between 1892 and 1897 R. B. Tuggle acquired title to the interests of five of the remaindermen in this property, and in March, 1897, he filed a bill in the circuit court of Prince Edward county with a view to a sale of the garden lot. He alleged that he was the owner of this lot, except the remainder interest of the infant Robbie B. Berkeley; that he was the absolute owner of the life estate; that he was willing to release to the infant the life estate of Ellen W. Berkeley in her one-sixth interest; that the property was not susceptible of partition in kind; and asking that the interest of the infant in the lot might be sold to him. Those proceedings resulted in a sale of the infant's interest in the garden lot to Tuggle for $333.33 1/3, and he thereafter sold this lot for $2,000, receiving the entire proceeds of sale except the share of the infant

By four deeds executed June 6, 1893, August 20, 1894, March 2, 1897, and June 4, 1898, R. B. Tuggle conveyed the interest he claimed in the entire property held by R. B. Berkeley, trustee, to the trustees of the Farmville Building & Trust Company to secure various sums of borrowed money, and the trustees in these deeds, at the request of the building and trust company and of Tuggle, advertised for sale the dwelling house and the lot upon which it is situated, as though the deeds under which they were acting conveyed an absolute title, independent of any interest therein owned by Ellen W. Berkeley or her infant child, Robbie B. Berkeley. Whereupon Ellen W. Berkeley, Robbie B. Berkeley, and R. B. Berkeley, trustee, obtained an injunction restraining the trustees from making sale of the property until the further order of the circuit court of Prince Edward county, and upon the hearing of the cause upon the pleadings, the exhibits therewith, and the depositions for plaintiffs and defendants, the court perpetuated the injunction both as to the interest in remainder held by Robbie B. Berkeley and the life estate of Ellen W. Berkeley, and from this decree R. B. Tuggle appeals.

The learned judge of the circuit court has, in a written opinion, made a part of the record, discussed in a satisfactory manner the principles involved in the case, and we there-Tore adopt it as a part of this opinion, omit ting statements which we have already made herein, and which need not be repeated:

"The deed from Ellen W. Berkeley of date May 17, 1893, to R. B. Tuggle, contains a stipulation for a reconveyance of the property to her 'whenever she shall pay to him the sum of money (estimated at $600) so paid by him on account of such delinquent taxes, with interest thereon from the time of his payment, ' etc. The property in which the plaintiff so conveyed her life estate consisted of two lots, —the one on which she resided, and another known as 'the garden.' * * * At the time of these transactions the defendant, Tuggle, who had married the daughter of the plaintiff, boarded his wife with her mother, and agreed to pay a stipulated price for her board, and for his own use, for such time as his business permitted him to spend with them.

"It appears that the family of the plaintiff was a large one, and that she was striving to make a living for herself and them by keeping boarders, and her son-in-law seems to have been the only male member of the family to whom she could look for counsel and advice, or help in time of need. The struggle must have been a hard one, for she permitted the taxes on her home to become delinquent and to pile up until they reached the sum of $618.33, and she was threatened with a suit to subject her life interest to the payment of these taxes by a stranger who had acquired a lien upon the interest of one of her sons in the remainder. Under these circumstances she applied to her son-in-law for help, and he agreed to raise the money and pay the taxes, if she would convey to him her life interest, to which she consented, and made the deed with reservation...