A deed
reciting a consideration of "natural love and
affection," after reserving an estate for the joint
lives of the grantor and wife, conveyed land to the two
children of the grantor and his wife, provided that any
after-born child should share equally, and appointed a
guardian for the children until they should become 21 years
of age, when they were to "be entitled to take
possession of said land and premises, free of all
costs." Held, that the grantor intended to convey a fee
to the children, and that the deed should be reformed by
inserting the words "and their heirs, forever."--
The
plaintiffs' assignor, John Hinton Ellis, was the son of
one Nathan Ellis, and the plaintiffs are the heirs at law of
Ann M. Vickers, a daughter of Nathan Ellis, through whom both
parties claim title. The plaintiffs allege that the word
"heirs" was by mistake omitted from the deed
executed by said Nathan Ellis to his children, the said Ann
and John Hinton Ellis, dated February 16, 1824, and asks
judgment that said deed be reformed. The deed is
substantially as follows, and was executed by Nathan Ellis
"For and in consideration of natural love and affection
to my children, Ann Maria and John Hinton Ellis, by my
present wife, Patsy Leigh, and for other good causes, etc
have given and granted unto my said children a certain tract
of land situate in Orange county, on the waters of Third
fork, containing one hundred acres, more or less, where
Richard Leigh now lives, late the property of John Leigh
deceased; and I do hereby authorize and appoint my
brother-in-law Sullivan Leigh guardian of my said children
above mentioned, with full power, as the law may direct to
guardians, and whenever my said children may come to the age
of twentyone, will be entitled to take possession of said
land and premises, free from all costs; but it is to be
considered that should my wife Patsy have other children by
me, they are to come in with my other children, Ann Maria and
John Hinton, and be entitled to have an equal part of said
land. At the same time, it is to be considered that the above
deed of gift will not take place till my death, and the death
of my wife, Patsy Leigh. In witness whereof, I have hereunto
set my hand and seal, the 16th day of February, 1824.
[Signed] NATHAN ELLIS. [Seal]"' --to the execution
of which there were three witnesses. The execution of the
above deed was proved in open court at February term, 1824
of Orange court. "Orange County, Register's Office.
The above is a true copy of a deed of gift found registered
in Book S, page 205. Signed by the register, A. MICKLE, on
the 13th of September, 1846." John Hinton Ellis and Ann
Maria Ellis were the children of Nathan and Patsy Ellis. Ann
Maria Ellis married Riley Vickers in 1846. Nathan Ellis died
in 1846, Pasty Ellis in 1851, Sullivan Leigh in 1854, Riley
Vickers in 1879, and Ann Maria Vickers in 1885. Plaintiffs
are the heirs at law of Riley and Ann Maria Vickers, and
defendants the heirs at law of Sullivan Leigh. The 11 acres
of land sold to Pratt by Sullivan Leigh was part of the land
conveyed by Nathan Ellis, in his deed of 1824, to John H. and
Ann Maria Ellis, and by James C. Turrentine, sheriff of
Orange county, to Sullivan Leigh in 1836. Nathan Ellis and
his heirs have been in continuous, uninterrupted possession
of the land in question from 1824 to the present time, using
it as their own, and the plaintiffs are now in possession
thereof. Neither Sullivan Leigh, nor any claiming under him,
have attempted to recover said land. The following deeds and
papers were read in evidence: (1) Richard Leigh to Sullivan
Leigh, deed dated June 17, 1823; (2) Sullivan Leigh to Nathan
Ellis, deed dated February 16, 1824; (3) Nathan Ellis to John
H. and Ann Maria Ellis, deed dated February 16, 1824; (4)
James C. Turrentine, sheriff of Orange county, to Sullivan
Leigh, deed dated May 23, 1836; (5) Sullivan Leigh to W. N.
Pratt, deed dated September 1, 1836; (6) Nathan Ellis to
Sullivan Leigh, bill of sale of personalty,
dated August 24, 1838; (7) Patsy Ellis to Sullivan Leigh,
deed dated February 2, 1846; (8) John H. Ellis to Riley
Vickers, deed dated May 15, 1846. The plaintiff alleged,
also, that Sullivan Leigh bought the land in controversy at
sheriff's sale, under a parol agreement to convey to
Nathan Ellis, and had the deed of Turrentine, sheriff, dated
May 23, 1836, executed to himself; and that said Sullivan
Leigh suppressed bidders at said sale by stating that he was
buying for Nathan Ellis; and that Nathan Ellis subsequently
repaid to Leigh the amount that the later bid and paid to the
sheriff for the land. A number of witnesses were offered to
establish the parol trust, chiefly by showing declarations of
said Sullivan Leigh. It is not material to give the testimony
and the exceptions to its admissions, for reasons that appear
in the opinion of the court. The issues, and responses to
them, were as follows: "(1) Was the word 'heirs'
omitted by mistake of the draughtsman from the deed of 1824
of Nathan Ellis to his children? Answer. Yes. (2) Did
Sullivan Leigh purchase the land in suit at the sheriff's
sale of May 23, 1836, under an agreement, made with Nathan
Ellis before the sale, that he, Sullivan Leigh, would buy and
hold the same as trustee for Nathan Ellis and his heirs, and
that upon repayment of the purchase money he would reconvey
to said Ellis and his heirs? A. No. (3) Has the purchase
money so paid by Sullivan Leigh been repaid to him? A. Yes.
(4) Was the deed of Nathan Ellis to his children, made
February 16, 1824, intended by him to convey the land therein
described to them and their heirs? A. Yes. (5) Did Sullivan
Leigh, by his conduct, words, or acts, suppress bidding at
the sheriff's sale in 1836, by representing that he was
buying the land for Nathan Ellis and his wife? A. Yes. (6)
Have ten years elapsed since the commencement of the parol
trust alleged by the plaintiffs? A. Yes. (7) What is the
annual rental value of the land? A. $1,100."
Following
is the judge's charge: "A deed is a solemn act, in
transactions concerning land; the most solemn known to the
law, because of the special importance of its contents. It is
a presumption of the law that a deed correctly shows and
contains the intentions of the parties thereto; and the law
gives it weight, as a paper of high dignity. Therefore the
disposition of the law is to sustain every deed as it is
written, and not to allow any change or amendment in it. The
court instructs you that in this case there is no positive
evidence of the intention of Nathan Ellis to create an estate
in fee in his children by his deed of February 16, 1824, and
no such evidence that the word 'heirs' was left out
of the said deed by mistake or ignorance of the draughtsman.
Unless the evidence is strong, clear, and convincing, it is
the duty of the jury to sustain that deed as it is written. A
mere preponderance of the testimony will not be sufficient to
justify a finding for the plaintiffs. Where it is sought to
convert the purchaser of a tract of land at public sale into
a trustee, upon the ground that he made the purchase as the
agent of the debtor, the legal title having been made to the
purchaser, mere parol proof that the purchaser admitted the
trust will not be sufficient to entitle the plaintiffs to
relief. There must be proof of facts and circumstances
inconsistent with the idea of a purchase for himself; and
where the facts and circumstances relied on as corroborating
the purchaser's declarations are unsatisfactory and
susceptible of various and contradictory conclusions, some of
which are consistent with the defendants' claim, they
will not be deemed sufficient to establish the trust. To
establish a parol trust in one who has acquired the title to
land, something more than the simple declaration of the
person sought to be charged is required. There must be proof
of acts, in connection therewith, inconsistent with a purpose
on his part to purchase or hold the land for himself
absolutely. A court will require clear, strong, and
convincing proof to annex a parol trust to a deed absolute on
its face. Something more than mere preponderance of testimony
is required. In this case, there is no direct evidence that
Sullivan Leigh, prior to the sheriff's sale, made any
verbal agreement with Nathan Ellis or Patsy Ellis, or their
children, that he would purchase the land for them, and allow
them to redeem on payment of the purchase money, and there is
no evidence of any kind that he ever made any such agreement
with the children; and, before the jury would be warranted in
finding such an agreement between Sullivan Leigh and Nathan
Ellis and his wife, the circumstances relied on to show that
fact must be sufficiently strong, clear, and convincing to
prove that fact to their satisfaction. In this case, there is
no evidence that the money used in purchasing the land at
sheriff's sale in 1836 was furnished by Nathan Ellis, or
his wife or children, and no evidence of inadequacy of price;
and the question for the jury is, is the evidence
sufficiently strong and convincing that Sullivan Leigh did
agree with Nathan Ellis and his wife to buy it and allow them
to redeem it, and did they redeem it, or did Sullivan Leigh
buy it, and let Ellis and his wife, and their children, John
Hinton and Ann Maria, hold it for their life? The admissions
of Sullivan Leigh, if the jury shall believe the evidence,
made after the sheriff's sale, of a trust antecedently
created, are insufficient in themselves to establish the
parol trust, or to show the equity which is sought to be
enforced by the plaintiffs. That the deed...
