Weinrich v. Wolf

Green, Judge:

The first error assigned by the appellant is that the circuit court erroneously overruled in its decree of October 31, 1878, the demurrer to the bill filed by the defendant, Jacob Wolf. The whole argument of the appellant’s counsel is based on the assumption, that Jacob Wolf and wife by their deed to the plaintiffs, Lewis Weinrich and Samuel Sinnett, had conveyed without warranty two undivided third parts of this tract of land of one thousand six hundred acres in controversy, which deed was duly recorded; and that subsequently thereto the said Wolf conveyed this tract of land to the heirs of Jacob H. Smith by a deed not recorded, for the purpose of cheating and defrauding the said Weinrich and Sinnett of the two thirds of said tract of land previously conveyed to them. It is argued that such subsequent deed is a mere nullity and can not throw a cloud even on the title of the plaintiff and Samuel Sinnett to said two undivided third parts of this tract of land which, as shown by the bill, had *314 previously been conveyed to them by a deed duly recorded. Various authorities are cited to sustain the position: It is unnecessary to consider these authorities; for the plaintiff has entirely misapprehended the case made by the bill. The case really made by the allegations in the bill is that the plaintiff and Sinnett having and claiming nothing but an equitable title to two thirds of this land, the defendant, Jacob Wolf, to cheat and defraud the plaintiff and the defendant, SamuelSinnett, out of the two undivided third parts of said one thousand six hundred acres of land, having the legal title to the whole of it, for a pretended consideration conveyed the legal title thereto as well as the land itself to the heirs of Jacob H. Smith. If this be the real allegation of the bill, it cannot for a moment be questioned, that a court of equity ought to entertain jurisdiction of the case, and, if the case be proven as stated, the court ought to set aside this deed to the heirs of Jacob H. Smith and require Wolf, who held the legal title to the whole of this tract, to convey two undivided third parts thereof to the plaintiff and Samuel Sinnett.

It is only necessary to glance at the deed, as it is called, of Jacob Wolf and wife to Weinrich and Sinnett to see at once that it is no deed conveying to them the legal title to this land. It is a paper reciting in effect that 'Weinrich and Sin-nett had agreed to pay equal expenses on this tract of land with Wolf; that Wolf agreed to make them a deed for their portion of the land; and Weinrich and Sinnett desiring such deed to be made the said Wolf “makes such deed to the undivided tract of land containing one thousand six hundred acres, of which Jacob Wolf makes said Weinrich and Sin-nett a quit-claim deed for two thirds of this one thousand six hundred acres of land” (describing it.) And then this so called deed closes: “To have and to hold the interest as aforesaid to the said Samuel Sinnett and Lewis Weinrich if not redeemed. As witness our hands and seals.” The hands and seals of Jacob Wolf and wife are appended. It is obvious that no one can convey a tract of land by simply declaring under his hand and seal that he makes a deed to the tract of land. The most that can be made of sucb a paper is that it is an acknowledgment, that the parties, to whom it is thus declared that a deed had been made, have an equitable title *315 to this tract oí land; and if it was subsequently fraudulently conveyed b}’ a deed to a third party, of course the equitable owner can have this fraudulent deed set aside. For such equitable owner has a right to call on a court of equity to compel the party holding the legal title to convey it to him, which can not be done till the fraudulent deed, which he has made of such land to the third party, has been set aside and annulled. It is true that the bill does call this paper of September 20, 1876, a conveyance by "Wolf and wife to the plaintiff, Lewis Weinrich, and Samuel Sinnett; but his so calling it does not make it a deed. He files an attested copy of this paper with his bill as a part thereof; and when we look at it, we find that he misnamed it when he called it a deed. It is true it is called a deed throughout the record and in the arguments of counsel on both sides; but this does not change its nature. It is obviously no deed; and because it is no deed, it is obvious, that, if the facts stated in the bill are true, the plaintiff had a right to have the deed conveying this tract of land to the heirs of Jacob H. Smith set aside and to call for a conveyance of two thirds of this tract to the plaintiff' and Samuel Sinnett. Therefore the circuit court clearly did not err in overruling the demurrer to this bill.

The circuit court did not err in its next decree of May 4, 1880, in which it held “that the deed made by Jacob Wolf to the heirs-at-law of Jacob H. Smith on October 19, 1876, by which said Wolf conveys to the said heirs-at-law all the title he obtained at the tax-sale to the said tract of sixteen hundred acres of land in the bill and proceedings mentioned, is not fraudulent as to the said plaintiff and the said Samuel Sinnett as charged in the bill of complaint in this cause, hut the said deed is bona fide and made in accordance with the terms and provisions, reservations and conditions of the contract between Jacob Wolf, Lewis Weinrich and Samuel Sinnett as already appears by the evidence in this cause, and therefore it is adjudged, ordered and decreed that the said deed of October 18, 1876, by said Jacob Wolf to the said heirs of Jacob H. Smith, deceased, be and the same is declared valid and binding for the purpose of transferring the title which the said Wolf by his tax-deed obtained to said one thousand six hundred acres of laud as in the bill and *316 proceedings mentioned, which, was provided for, hy and between said Weinrich, Wolf and Sinnett in their said contract under seal dated July 5, 1870, and which is filed with the plaintiff’s bill in this cause. And it is further adjudged, ordered and decreed that so far as the said deed made hy said Wolf to said Weinrich and .Sinnett bearing date the 20th day of September, 1876, (which was made upon the conditions and reservations in said contract) is contrary to and in conflict with the right of the said heirs to redeem said land and in the deed made hy said Wolf to said heirs on the said 19th day of October, 1876, in pursuance of said contract, said deed of September 20, 1876, is cancelled and annulled and leave is given said heirs to place said deed of October 18, 1876, upon record in the clerk’s office of the county court of Ritchie county.”

The language of the coutract is that all of said parties “do grant unto the children or lawful heirs of Jacob H. Smith the right of redemption of this tract of land provided the same land is redeemed by the lawful heirs of Jacob II. Smith, deceased, as provided by law for the redemption of such tract.” Row it would seem from the writing of this contract that some rights of redemption were understood by all the parties to belong to the heirs of Jacob II. Smith beyond what was conferred on them by the law; for this right of redemption, -whatever it was, is called expressly a grant or favor to these heirs, and of course it could not he so called, if it was only the right, which the law conferred on them. And as the parol proof shows, that according to the contract made by Jacob Wolf with these heirs they were to be allowed an indefinite time, in which to redeem the land, and that it was expressly understood between Jacob Wolf and them, that whenever they chose, they could redeem the land, and as it is further proven that the other parties to this contract, Sinnett and Weinrich, were, when they made it, informed of this agreement with the heirs of Jacob II. Smith, which had been made by Wolf, there can be no doubt, that this was the understanding of all parties and the true meaning of this contract of January 1, 1870. This was obviously the meaning of what is called the deed of September 20, 1876, by Jacob Wolf.and wife to the plaintiff', Wein- *317 rich, and Sinnett, in which W olf declared he made to them a deed for two undivided third parts of this tract of land, if it was not redeemed. This so-called deed thus admitted impliedly, that the right of the heirs of Jacob H. Smith still existed; and was, we think, clearly understood by all parties that it would continue to exist indefinitely.

But though the first part of this contract of January 1, 1870, is worded as a contract with the heirs of Jacob H. Smith, yet the parol evidence shows that it was not, and that they never knew of the existence of such contract, till after the deed for this tract of land as redeemed was made to them by Wolf, October 19, 1876, though they are presumed to have had notice of some contract on this subject between these parties after January 29, 1877, as this so-called deed of September 20, 1876, was then recorded, and it shows some agreement to have existed but does not disclose its character. It is clear therefore, as the circuit court held, that the plaintiff, Weinrich, and also Sinnett had notice of the previous equity of the heirs of Smith to redeem this land at any time, and that they made their contract with Wolf subject to this equitable right. But even had it been otherwise, in this case it would make no difference, as the heirs of Jacob H. Smith got from Jacob Wolf a conveyance of this one thousand six hundred acres of land on October 19,1876, in ignorance of any claim to an equitable title to this land in the plaintiff, Weinrich, and in Sinnett. If they were right in saying that their contract gave them an equitable title to this tract of land and even if they had no notice of the previous equitable rights of the heirs of Smith, or if these heirs had no previous equity, still the deed to them would not be set aside, because it was on their part a bona fide deed made to them for a valuable consideration without any notice that the plaintiff, Weinrich, or Sinnett claimed any equitable interest in the land conveyed. The evidence, which we have stated, shows also other reasons, why Weinrich, the plaintiff, could not in equity ask that this deed to the heirs of Jacob II. Smith should be set aside. But it is deemed unnecessary to point them out, as it is clear that the court did not err in refusing to set aside this deed.

The circuit court did not err in its decree of May 4, 1880, *318 in referring the cause to the commissioner to settle the accounts between Weinrich, and Sinnett and Wolf. More than sixty pages of the printed record consist of depositions taken before this decree was rendered, and a considerable portion ot them referred to the many items which made up these accounts, and according to well settled principles of courts of equity, if the court had proper jurisdiction of the matters in controversy between the parties, as it had in this case, it was its duty to settle up the whole controversy between the parties; and having taken charge of it the circuit court would have erred, if it had stopped short of doing full justice between the parties and had sent them to a court of law to settle this portion of the controversy between them, even though an action of assumpsit might have been brought by Weinrich and Sinnett against Wolf to recover any balance due them on account of the transactions, which arose out of and were necessarily connected with the contracts and other matters which were necessarily involved in their chancery cause. But independent of that, even if there had not been involved in this suit the question, whether the heirs of Smith had really redeemed this land or had without redeeming it fraudulently procured from Wolf the deed of .October 19,. 1876, and the bill had been confined to a demand for settlement by Wolf with Weinrich and Sinnett of his accounts arising out of the fact that he had received the whole of the redemption-money for said tract of land and that' he had paid taxes and other expenses, a court of equity would have had jurisdiction to settle such accounts. Wolf held the legal title to this tract in trust equally for himself, Weinrich and Sinnett subject to the right of the heirs of Smith at any time they chose to redeem it. The redemption-money was to be received by Wolf, and he received it from different heirs of Smith and at different times. In the meantime Wolf, the trustee, holding the legal title to the land was charged with the taxes and paid them; and as such trustee he paid expenses of different kinds connected with his trust. Upon the well known principles of courts of equity the settlement of the trust-accounts of this trustee with his cestuis que trust could properly be made in a court of equity.

The appellant’s counsel take the position, that any respon *319 sibility of Wolf to Weinrich and Sinnett incurred by his contract with them was waived by what he calls the deed made by him to them dated September 20, 1876, for the reason that the deed was accepted by them in full satisfaction and ■without any -warranty of title. But these views are taken under a total misapprehension of the character of this so-called deed of September 20, 1876. It was, we have seen, no deed and conveyed nothing whatever. It was in law a simple acknowledgment of the equitable rights of Weinrich and Sinnett, and it in no way changed or enlarged those equitable rights, which they had under their contract under seal with Wolf before that time; and of course being an instrument of no superior dignity to the contract under seal of January 1, 1870, it did not merge or destroy it, and that it was not so intended is shown by the fact that it states at its close that it was subject to the redemption of this land, evidently referring to the redemption provided for in the contract under seal of January 1, 1870. It did not therefore in any way relieve the plaintiff from his liability to account arising from this contract of January 1, 1870.

The following cases are referred to by the appellant’s counsel to show, that, if their was any liability on the part of the appellant, Wolf, to the plaintiff by reason of his not having accounted for this redemption-money or settled in any manner with the plaintiff, a court of equity has no jurisdiction: Sarbess, Adm’r, v. McClintic et al., 10 W. Va. 236 ; Petty v. Fogle, 16 W. Va. 497 ; Lefevere v. Billmire, 5 W. Va. 33 ; Starks v. Sikes, 8 Gray 609 .

The first of these eases was a case of personal property, which was left in pledge and converted by the pledgee to his own use. The purpose for which it was pledged having ceased to exist, this Court held that a simple action of trust for the improper conversion of this personal property was a full and complete remedy for the wrong, and the pledgeor could not in such a case bring a suit in equity to make the pledgee pay the value of this personal property. This decision was clearly right; but it has no resemblance to the case before us.

The case in 16 W. Va., p. 497, was a casé, where a suit was brought based on a written contract, which could give *320 the plaintift no right to bring a suit in equity, unless the fact, that there is an account to be settled, is sufficient to authorize a suit in equity. This was regarded as unsound law by this Court, and there being in the case no ground for a suit of equity except the simple fact, that an account between the parties very simple in its nature was involved, this Court properly held that a suit in equity would not lie.

The case in 5 W. Va. 33 , was a bill brought by a sheriff against his deputy charging a deficiency in the settlement of his accounts; and a demurrer to the bill was sustained. There is no resemblance between that case and the one before us. But the principles laid down in the syllabus in that case were stated in point three of the syllabus in the case in 16 W. Va. as in the general correct. Still this did not embrace all eases as to matters of account, in which equity should or should not take jurisdiction.

The casein 8 Gray 609 was simply that a co-tenant has a right to recover in an action of assumpsit his portion of money received from an insurance company for property on their common lease which was burned.. There was no sort of an account to be settled between the plaintift’ and defendant; and the case throws no light on the case before us.

The cases seem to me to throw but little light on the subject. It seems to me the real ground for the jurisdiction of a court of equity is that in this case Wolf held to the plaintift and Simiett the relation of trustee. It was a case, where by agreement the conveyance was made to one and the consideration was to be paid by them. In such case the one, who- has the legal title, stands as trustee for the others, and because ot his occupying this relation, if by agreement he controls or disposes of the property, can be held to an account by the others or either of them in a court of equity and may there be compelled to settle his account arising solely out of his position as such trustee. This trust, of which Jacob Wolf was trustee, is what is known as an express active trust. In such cases the cestuis que trust have a right in a court of equity to hold their trustee to a settlement of all his transactions; and I see no reason why the express active trust created in this case should be an exception to the general rule.

*321 It only remains to enquire whether the settlement made by the commissioner and approved by the court was correct. The only exceptions filed to the commissioner’s report were filed by the defendant, Wolf. The first five of these exceptions are based on the ground that the evidence did not show that the same parties, Wolf, Weinrich and Sinnett had. a settle7 ment on January 7, 1870, and that these parties after including all that each of them had paid prior to January 7, 1870, with the payment by one of them to the others were made exactly square with each other to that date, so that, as the expenses, taxes, &e., on this land up to that time amounted to one hundred and thirty-four dollars and ninety cents, each of these parties with the payments made, when this settlement was made, had paid forty-four dollars and ninety-seven cents, and being then square each was thereafter to pay one third of all further taxes and expenses. If we look only to the evidence of these parties- as given, this assumption of the -commissioner would seem to be clearly right, the depositions of Weinrich and Sinnett cannot be understood otherwise than as asserting this to be the fact. But the written evidence of this settlement produced by Wolf, like most of the papers produced in this cause, is very badly expressed. It is as follows: '

“State oe West Yieginia,

“Ritchie Oouhty, Township oe Muephy,

“January 7, 1880.

“We, Jacob Wolf, Lewis Weinrich and Samuel Sinuett, has made a generóle settlement of all county and State tax on the Smith estate from the year 1866 to 1869 and the school receipts for the years 1867, 1868 and 1869 which settlement amounts to forty-five dollars and five cents each up to January 7, 1870.”

This is signed by Sinnett and Wolf first and then by Weinrich, with whom it was left, and by whom it was .produced. Sinnett says it was left with him, because he and Wolf had receipts for what they had paid given when paid, and as Lewis Weinrich had paid nothing, and that day paid his share to the other two, so that with what had been paid by them, deducting what they then received, the payment of each of them was made the same as that which Lewis Wein- *322 rich then paid, that is, as he says, forty-five dollars and five cents, which was one third of all expenses and taxes to that time. Weinrich’s evidence amounts to the same statement. This would make all expenses and taxes prior thereto one hundred and thirty-five dollars and fifteen cents, which is hut twenty-five cents more than the commissioner by adding up the separate items makes it in his statement “B,” that is, one hundred and thirty-four dollars and ninety cents. The one third of that, forty-four dollars and ninety-seven cents, he credits to each of these parties as of January 7, 1870. Because of the wording of this settlement made January 7, 1870, the counsel for the appellant contends, that it only shows that there was due to Wolf from each of his partners the sum of forty-five dollars and five cents, and does not show, that matters were squared bewecn ,them then, and that as Wolf had paid prior to that time this one hundred and thirty-four dollars and ninety cents, the others should each he charged with one third that amount. (See his exception 5.) But it is entirely apparent that this is not the truth of the case, even if we were to look at the testimony of Wolf alone. It is true at one time lie says that they each of them paid on January 7,1870, to him their ¡lortion of forty-five dollars and five cents, that is, fifteen dollars each and he signed this paper produced by Weinrich. This gives a different meaning to this paper from what is now insisted on by his counsel. But it obviously will not bear this meaning. At another time Wolf states, that Sinnett prior to January 7, 1870, paid these tax-receipts of James T. Hurdman, township treasurer on this land; and he says: “These receipts were lifted by Samuel Sinnett and settled between Wolf, Wein-rich and Sinnett, as shown by the paper produced by Wein-rich, by each paying his share of them.” This seems to show that this settlement was of the character stated by Weinrich and Sinnett in their depositions, and that each with the payments previously made then paid his. share of all taxes and expenses up to January 7, 1870, and that as Weinrich had paid nothing before, he paid the whole of his share, about forty-five dollars, to the other two so as to make the amount in all to that time paid by each equal to that paid bv each of the others. This is confirmed by the fact, that Wolf himself *323 says he took in shortly before January 7,1870, Weinrich and Sinnett as partners, as he could not pay all the taxes and expenses and.wanted help, who would naturally expect him to require them to pay in cash their portions of the previous expenses. This, I think, the evidence shows; and this was what was intended to be said on this paper signed by them and left with Weinrich. It was left with him, because ho paid his whole forty-five dollars on that day and had no other receipt for it, while each of’the others had receipts for what he had previously paid. The commissioner was right in giving each of these parties, Wolf, Weinrich and Sinnett, credits by this forty-seven dollars and ninety-seven cents, one third of their taxes and expenses prior to January 7, 1870. The court therefore was right in overruling the first five exceptions, each of which was based on a supposed error of the commissioner in this respect.

To understand the sixth exception to the commissioner’s report wo must clearly comprehend the principles, on which the report is based. In the first place the law, when this sale was made, required the land-owner, when he redeemed the land, to pay at the rate of twenty per cent, per annum, on the moneys Avliich had been paid out by the purchaser at the tax-sale. This remained the law, till the Code of 1868 was passed; and when it took effect, April 1, 1869, the rate was reduced to twelve cent, per annum. If this redemption of the land had been made by Smith’s heirs at this rate, they ought to have paid to Wolf instead of five hundred and fifty dollars the sum of nine lmudred and four dollars and fifty-six cents. (See statement of commissioner’s report.) And if each ot these parties, Sinnett, Weinrich and Wolf, had received his portion of this nine hundred and four dollars and fifty-six cents by each of them receiving this rate on the moneys he had paid, Sinnett would have received two hundred and seventy-nine dollars and seven cents, Weinrich two hundred and twenty-one dollars and fifty-four cents and Wolf four hundred and three dollars and ninety-five cents. It might perhaps have been well insisted, that Wolf ought-not to have made a deed for this land, till he had received from Smith’s heirs nine hundred and four dollars and fifty-six cents, and that Weinrich and Sinnett had aright to charge *324 Rim as if he had received that amount, so that each of these three parties should receive twenty per cent, per annum on the moneys he advanced prior to April 1, 1869, and twelve per cent, per annum on the amounts he advanced after that time. If this had been done, Wolf would have owed Wein-rich two hundred and twenty-one dollars and fifty-four cents and Sinnett two hundred and twenty-one dollars and fifty-four cents. But the commissioner did not so charge him but he charged him only with that proportion of this sum, which nine hundred and tour dollars and fifty-six cents, the sum he ought to have received, bears to five hundred and fifty dollars — the sum he actually received, that is, he charged him with only about eleven-eighteenths of this sum, which they ought respectively to have got, had they received on the moneys they advanced the rate allowed to purchasers of land at tax-sales, when the land is redeemed by the owner of the land, thus reducing the amount Wolf had to pay Sinnett to one hundred and nine dollars and sixty-eight cents and what he had to pay Weinrich to one hundred and thirty-four dollars and seventy cent's (see table G.) As neither Weinrich nor Sinnett excepted to the commissioner’s report, they could not, if they desired, object in this Court to the principles on which the commissioner acted; and they have not attempted so to do. They were content to receive the sums reported in their favor by the commissioner; and they cannot now, if they would, object to-the amount as too small. As Wolf is the only person, who excepted to the principle, upon which this five hundred and fifty dollars, which he had received for the redemption of this land, was divided among the parties, it is incumbent on him to show not only that the principle, on which this division was made, was’ erroneous but also that he was prejudiced by the commissioner adopting this principle. How the proper mode, it seems to me, of dividing this sum of five hundred and fifty dollars received by Wolf among Weinrich, Sinnett and Wolf according to their agreement was as follows:. Wolf should have been charged with the five hundred and fifty dollars of redemption-money, which he received, with interest at six per cent, on each part thereof from the day when he received it till October 19, 1880, when it was to be distributed; and then it *325 should have been ascertained how much ol taxes and other expenses had been paid by Wolf, Weinrich and Sinnett respectively, which the commissioner has done, with interest on their payments severally at the rate of six per cent, per annum till the day of distribution; and as each of them was to pay one third of the taxes and expenses and Wolf had paid more than his third and each of the others less, each of them was on this account indebted to Wolf, and the-amount of this indebtedness of each of them severally to Wolf on these accounts should have been calculated as of the day of distribution, October 19, 1880; and from the one third of the redemption-money as of that date, which Wolf owed to each of these parties, should have been subtracted the amount each of these parties severally owed him on account of the settlement of the tax and expense account; and the true amount due to Weinrich and Sinnett by Wolf on October 19, 1880, would thus have been ascertained.

If these calculations were made, it would be found that the aggregate amount, which Wolf would have to pay to Weinrich and Sinnett, would exceed by a small amount, what he would have to pay according to the calculation as made by-the commissioner. The principle difference would be not in the aggregate, which Wolf would have to pay, but in the proportion, in which it would be paid to Sinnett and Weinrich. These results are ascertained by making these calculations roughly, and they might have been anticipated without the making of the calculation at all. For if the commissioner allowed to each one of these parties interest exceeding six per cent, and charged each of them with interest to the like extent exceeding six per cent, the result, we might expect, would benefit Wolf, who was charged this large interest on the amount of taxes paid by Weinrich and Sinnett aggregating two hundred and seventy-five dollars and eighty-six cents, and was allowed this large interest on the amount of taxes and expenses amounting to two hundred and sixty-nine dollars and > sixty-eight cents, the difference in the two amounts being only six dollars and eighteen cents against Wolf and this was more than made up by Wolf getting the large rate, twenty per cent, per annum, or a larger amount than the others got this large rate upon. But the result, so far *326 as Wolf was concerned, was nearly the same but slightly in his favor by the commissioner’s mode of settling compared with the correct mode of settling as I have stated it above.

In the first part of the sixth exception Wolf objects to his being charged interest at the rate of twenty per cent, per annum on the purchase-money of five hundred and fifty dollars; and this complaint is repeated in the eighth exception. There is no ground for this first portion of the sixth exception and this eighth exception; for Wolf is only charged six per cent, on this five hundred and fifty dollars from October 19, 187G, when he received the last of it. lie ought to have been charged six per cent, from the time ho received each part of it, which would have increased the amount he would have been charged with. The second part of the sixth exception based on the commissioner’s allowing this twenty and twelve per cent, on the taxes paid is, as wo have seen, wrong but not prejudicial to Wolf but rather beneficial to him, as he was allowed the same rates on taxes paid, and he paid more than either of the others. The others do not complain of this in this Court; nor could they do so, as they did not except to the report.

The seventh and ninth exceptions were also properly overruled; for Wolf, as we have seen, occupied the position of trustee to Weinrich and Sinnott and was bound to account without any demand being made upon him.

The commissioner’s report having in it no errors prejudicial to Wolf, and he being the only party, who filed any exceptions to it, the court properly overruled his exceptions and confirmed the report; and the decree of June 24, 1881, based upon this report must be affirmed; and the appellees must recover of the appellant their costs in this Court expended and damages according to law.

Affirmed.