Woodwine v. Woodrum

• Decision Date: 03 December 1881
• Citation: 19 W.Va. 67
• Parties: Woodwine, et ux. v. Woodrum, et al.*(Patton, J., Absent.)
• Court: West Virginia Supreme Court

19 W.Va. 67

Woodwine, et ux.

v. Woodrum, et al.*(Patton, J., Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1881.

Decided December 3, 1881.

1. If a deed convey real and personal property to a trustee upon trust to sell the property for cash or on credit at any time he thinks proper and to pay over the proceeds to an infant, when he attains the age of twentyone, whether the property be sold, before or after the infant attains his majority, the purchaser is not bound to see to the application of the purchase-money.

2.The question, Is a purchaser bound to see to the application of the purchase-money? has reference to the state of things, at the time the deed is made, and depends entirely upon the wording of the deed and not on the state of facts, which may exist, when the sale is actually made

3.When an interval must or may properly elapse between the sale and the payment out of the purchase-money, the purchaser is not bound to see to the application of the purchase-money.

Appeal from and supersedeas to two decrees of the circuit court of the county of Summers rendered respectively on the 20th day of September, 1879, and on the 19th day of April, 1880, in a cause in said court then pending wherein Charles C. Woodwine and wife were plaintiffs and Richard Woodrum, Houston L. Baber and Giles T. Lowry were defendants, allowed upon the petition of said Baber and Lowry.

Hon. Homer A. Holt, judge of the eighth judicial circuit rendered the decrees appealed from.

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

On February 5, 1867, John Woodrum and wife in consideration of natural love and affection and the nominal consideration of one dollar conveyed to their son Richard Woodrum, trustee, two bonds, described in the deed, two mules and one hundred and eighty acres of land in Summers county described in the deed, in trust for the equal benefit of the six children, naming them, of Hugh Woodrum, another son of the grantor's, provided that $100.00 of these effects are to be paid to Jordan Woodrum, one of the parties. The deed then provides: "The trustee is empowered to sell the land hereby conveyed either for cash or on credit, whenever the full value can be obtained therefor, and to pay over the portion due each beneficiary, whenever he arrives at the age of twenty-one years. The said trustee may also sell the other property, whenever in his discretion such sales are proper and necessary, and after paying said one hundred dollars to said Jordan Woodrum he will pay the beneficiaries as is provided in case of the land." This deed was promptly and duly acknowledged but not recorded till February 20th, 1872.

In March 1874, Charles C. Woodwine and wife, he having married one of these six children of Hugh Woodrum one of the beneficiaries in this deed, brought a chancery suit in the circuit court of Summers county against the trustee, Richard Woodrum, for a settlement of his accounts as such trustee, the other beneficiaries being made defendants. The bill states, that the plaintiff, Charles C. Woodwine, had bought out in full the interest of one of his brothers-in-law and also the interest of one of his sisters-in-law. It also states, that the trustee had sold all the real and personal property named in the deed and collected the two bonds and with the exception of small sums named in the bill had failed to pay over the proceeds to the beneficiaries in the deed, ail of whom were then of age except one. The settlement asked was made in this suit; and on April 15th, 1876, the court decreed to be paid by the trustee, Richard Woodrum, as due from him to several of the beneficiaries, several sums amounting to $755.78 1/2 with interest from July 1st, 1874, leaving the balance due to one of them undetermined and to be thereafter ascertained. Nothing was found due Jordan Woodrum, the $100.00 to be first paid to him under the deed having been paid him in full.

In December, 1876, an amended bill was filed in this suit, which set out these additional facts, which were either admitted to be true or proven in the further progress of the cause: that after the deed was made to Richard Woodrum, trustee, dated Feb. 5, 1867, but at what time does not appear, he sold the land conveyed to him by this deed as trustee to Giles T. Lowry, one of the appellants, for the sum of $1,000.00, which was paid to the trustee in full, before this amended bill was filed, but at what time does not appear, except that $130.00 was paid Oct. 1, 1870; $414.77 July 7, 1871, and $186.23 Dec 16, 1872; that before Richard Woodrum had made a deed to the said Giles T. Lowry, he sold the land to H. L. Baber, the other appellant, at an advance of $250.00; and Lowry then directed Richard Woodrum to make the deed for the land directly to H. L. Baber, which he did on Feb. 5, 1872; that this deed was recorded Oct, 1, 1872; that when the deed was made to Richard Woodrum, trustee, on Feb. 5, 1867, four of the six children of Hugh Woodrum, the beneficiaries in the deed, were under twenty-one years of age, and the youngest of these was only eight years and nine months old. The plaintiff proved by one of the beneficiaries in this deed, that C. C. Woodwine told the appellant, H. L. Baber, in the presence of one Dunn, that he had better mind how he paid out his cash, that the title of this land was in Hugh Woodrum's heirs and not in Richard Woodrum. The time when this occurred is not stated; but it is said he, Baber, had then paid $200.00 or $300.00 on the land. The conversation and notice is denied by the depositions of both Baber and Dunn; nor is it material, whether it be so or not, as it only proves, that the purchaser Baber had notice of the character, in which Richard Woodrum held the title to this land, that is, as trustee for Hugh Woodrum's children, and he must independent of this notice be conclusively presumed to have known the character of the title, under which he claimed this land as purchaser. The amended bill sought to make this land liable for what the trustee, Richard Woodrum, owed, he being then insolvent.

The answers of the appellants, Baber and Lowry, claim, that they were not bound to see to the application of the purchase-money by the trustee, Richard Woodrum. But by its decree of September 20, 1879, the circuit court decided, that they were bound to see to the application of the purchasemoney, that the land was bound for whatever the trustee, Richard Woodrum, might owe to the cestuis que trust, and ordered, that a commissioner ascertain the amount. This was done and on April 19, 1880, the court decreed, that the amount due from Richard Woodrum, trustee, was $963.95 with interest from March 5, 1880, and ordered, that unless the sum was paid to the parties entitled to it within ninety days, said land of H. L. Baber's should be sold by a special commissioner in the manner prescribed

From these decrees of September 20, 1879 and April 19, 1880, the defendants, Lowry and Baber have obtained an appeal and supersedeas to this Court.

N. M. Lowry and A. G. Snyder cited the following authorities: 1 Lom. Dig. s. p. 245; 16 Ves. 151; 1 Lead. Cas. Eq. s. p. 58; 9 Leigh 387; Story on Ag. § 58; 4 Madd. 142; 2 Sto. Eq. Juris. §§ 1133, 1134; 6 Ohio 114; 1 Call 524; 14 B. Mon. 433; 8 Ga. 258; 34 Ga. 443; 28 I11. 319; 10 Johns. 185; 6 Rand. 618.

Alexander Mahood for appellees cited the following authori- ties: 1 Lom. Dig. 215, 241, 242; 16 Ves. 249;4 Bouv. Inst. p. 249, § 3966; 4 Gratt, 482; 2 Sto. Eq. Juris. §§1127, 1133; Hill Trustees 342, 363; Adams. Eq. 330, (s. p. 156); 2 Tuck. Blacks. 436, 437, 446, 447, 449, 450; 4 U. S. Dig. 687; 27 Ark. 122; 2 U. S. Dig. 698; 31 la. 53; 1 Sto. Eq. Juris. §§ 399, 400; 1 Lom. Dig. s. p. 294; Id. s. p. 215; Adams. Eq. s. p. 158.

Green, Judge, announced the opinion of the Court:

The only question in this case is: Were the appellants, H. L. Baber aad G. L. Lowry, bound to see to the application of the purchase-money of the one hundred and eighty acres of land bought of Richard Woodrum, trustee, to the payment of the amounts due under the deed of February 5, 1867, to the children of Hugh Woodrum, as they respectively attained the age of twenty-one years? The circuit court decided, that they were so bound, and that this land in the hands of the appellant, Baber, was liable to the payment of the several sums due to these children. By this deed their grandfather and grandmother conveyed this land and certain personal property to their uncle, Richard Woodrum, upon trust to sell the property both real and personal for cash or on credit, whenever he could obtain a fair price therefor, and after paying $100.00 to a son of the grantor to pay the residue equally to these six children of Hugh Woodrum, when these children respectively attained the age of twenty-one years. The youngest of these children, when this deed was made, was under nine years of age. The trustee paid the $100.00 to the son ot the grantors and sold the land to G. L. Lowry, and Lowry sold it to H. L. Baber. These sales were on credits. It does not appear when they were made; but as the deed was made by the trustee, Richard Woodrum, to H. L. Baber by the directions of G. L. Lowry on February 5, 1872, the sales were of course before that time.

The first payment on the land was made October 1st, 1870, by the purchaser, Lowry, and probably this was about the date of the sale made by the trustee, Richard Woodrum. The last payment, of the date of which there is proof, was made December 16, 1872; and afterwards more than $200.00 must have been paid, but when it does not appear, except that it was before March, 1874, when this suit was instituted. When the first payment on this land was made two of the beneficiaries, children of Hugh Woodrum, were of age, and when the last payment was made, probably three of them were of age; and though these children were paid something by the trustee, they were not paid the amonnt due to them respectively.

Were the...