Burke v. Adair

Green, Judge : The vacation-order of June 14, 1879, dissolving the injunction, which had been awarded, was clearly right. The answer of the defendant not only on oath denied every allegation made in the bill, upon which the injunction had been awarded, but suppoi’ted many of these denials by exhibits filed with the answer. No deposition or affidavit or other evidence was filed to support the bill, though more than ten days’ notice had been given to the plaintiff, that a motion would be made to dissolve the injunction. Under these circumstances there would have been an obvious impropriety in the circuit judge declining to act on the appointed day and continuing this motion to a future day. No harm could be done to the plaintiff by the immediate action of the court on this motion. For though the court dissolved the injunction, which forbade the trustee to sell this tract of land under this deed of trust, yet the trustee could not under the provisions of the deed of trust have sold this land for at least thirty days after this injunction was dissolved. And in point of fact he did not sell it for fifty-seven days; and during all that time the plaintiff had the opportunity to take depositions to support her bill, and if supported she could on motion have had this injunction reinstated. It is equally clear, that the decree of March 20,1882, is correct, so far as it dismissed the bill and amended bill of Nancy Burke in the cause of Nancy Burke v. Wm. Adair jr. et al.; for the evidence in this cause fails to support the allegations in her bill and amended bill, on which she based her claim, to set aside and annul the sale of said land in the deed of trust mentioned to the defendant ¥m. Adair, jr., and to enjoin him from collecting her bond to him of one'thousand and forty-three dollars and fifty-four cents, orto declare it null and void. The evidence shows, that she was, when this bond was given, indebted to him in that amount, and that she executed said bond and the deed of trust on her farm to secure such debt, and that when she did this, she was aware of what she was doing, and that no fraud or-imposition was practiced on her to procure the execution of the same by ¥m. Adair jr. or by the notary public, or by J. A. Harvey, who as her agent for her and in her presence — 153 — signed her name to said bond and deed of trust. The fact, that the notary public was a brother-in-law of ¥m. Adair jr. and J. A. ITarvey his uncle, and that she was a very aged woman, ninety-six years of age, and that no one else was present except two negroes formerly her slaves, and they only occasionally in the room, while these transactions were going on, required of the defendant strong evidence of the fairness of this transaction ; hut this evidence was produced by him. And it was satisfactorily proven, that a statement of her indebtedness to him was made out in writing and read to her, that there was no controversy then about the amount of her indebtedness, that she well knew the contracts of the deed of trust and bond signed by her, and that J. A. Harvey was really selected by her not only as her agent in this matter but in endeavoring to make a sale ot her land privately; and especially was the fairness of the entire transaction shown by the actual production of the statement showing the items, of which her indebtedness to him amounting to one thousand and forty-three dollars and fifty-seven cents was composed; and further failure to prove, that any of the items ot this statement were erroneous. So far from the evidence showing that there was any unfair advantage taken of her or any oppression of her practiced by "Wm. Adair jr. it shows that throughout the entire transaction he has acted liberally and generously to her. Most of her indebtedness to him was the result of large advances made by him to pay off executions against her. Dor such advances he charged her only-six per cent, interest in this settlement, though she had agreed to give him ten per cent, interest thereon. He waited two years for a part of these advances before he even took this deed ot trust. He then extended to her some eighteen months’ credit on all his advances without any charge of interest during that time. He then waited, in order to give her an opportunity of selling her farm privately, some two years and a half after the expiration of this liberal credit; and during all this time she paid nothing on her indebtedness to him. Hnder such circumstances it can not be regarded as harsh, that ho should direct the sale under his deed of trust; though she was an old and helpless woman. — 154 — In lier amended bill she does not complain, that the land was sold without proper advertisement, or that the price paid for it by Wm. Adair jr., one thousand two hundred and ninety dollars, was not a fair and adequate price. The court court could not have done otherwise than dismiss her bill and amended bill. The bill of James Koatloy her nephew, to whom before the sale she had made a deed of this land, does charge, that the land was not advertised, that no notice of it was served on the grantor in the deed of trust, nor any advertisement of'it posted anywhere, and that the land was sold at a grossly inadequate price, because it was not advertised, that no one was present at the sale but the trustee and ¥m. Adair jr., and that ire bought the land at one thousand two hundred and ninety dollars, when it was worth three thousand dollars, and asks that this sale be set aside. . The answer of Wm. Adair jr. denies all these allegations; and the evidence shows, that these allegations were all untrue and many of them were utterly reckless statements having no foundation in fact. The plaintiff himself was, as in his deposition he admits, present at the sale and made no objection to its being made. The grantor in the deed of trust had a written notice of the sale served on her more than a month before the sale; and the plaintiff'admits that' this notice was sent to him by her, and that he attended the sale, and that there were a good many persons there. It is true that an effort was made to show, that the land sold at a grossly inadequate price; but this effort was a total failure. There is much evidence to show, that the tract of land brought its fair cash value. And if our opinion of the value of the land was formed only from the estimate of its value by the witnesses, I could not say it did not bring a fair price. But the bond of the plaintiff Keatloy with security dated October 5, 1881, named in the final decree evinces, that upon a re-sale said Keatley would have bid perhaps two or three hundred dollars more for this land than it had sold at; and it may be that it ivas worth that much more. But of course such a trifling advance is no evidence, that the property was sold at such a gross inadequacy of price, as to indicate unfairness in the sale and to justify us on that account in setting — 155 — it aside, the more especially as the person making this oiler was present at the sale and did not bid. There is a memorandum of an agreement by counsel copied into the record, whereby it was agreed the plaintiff Keatley had put in an upset bid guaranteed by proper bond and security for this tract of land, if i’e-sold, of two thousand five hundred dollárs. But this I regard as no part ot the record, it not being referred to in the decrees or any depositions or papers filed in the causes. But if it could be regarded as a part of the record, it would make no difference. It does not even tend to show, that this tract of land was worth any more than the previous offer referred to in the final decree. Bor as this land belonged to the plaintiff James Keatley, all that it brought beyond his first offer would noc-essaril3 be paid back to him; and he could as well have offered to bid five thousand dollars for this land as two thousand five hundred dollars. The allegation in the bill of James Keatley, “that the sale by the trustee líale was made without any notice or knowledge of the plaintiff; that said land was not advertised; that said notice was not served on the plaintiff nor on the defendant Xancy Burke nor was it posted as required by law or in any other manner,” were positive^' denied in the answer of ¥m. Adair jr.; and there is no evidence tending to support any of them. On the contrary it is proven that a copy of the notice of sale was served on Xancy Burke thirty-seven clays before the clay of sale, and that it was read and explained to her, and the plaintiff Keatley in his deposition admits that this notice was sent to him by Xancy Burke and he attended the sale. At the same time the trustee mailed copies of the advertisement to persons at TTuion, Linsclale and Peters-town in Monroe county, West Virginia, and these persons all as requested promptly posted these advertisements; and the trustee himself posted one of these advertisements at the Bed Sulphur Springs in said county; and on the same clay it was posted on the front door of the court-house of Monroe county. The statute requirements with reference to this advertisement of a sale under a deed of trust are found in chapter 72 section 7 of Code of West Virginia page 464, and are: “ The — 156 — notice of sale, shall in every ease he posted at least thirty days prior to the sale on the front door of the court-house of the county in which the property to he sold is, and at three other public places, at least, in the county, one of which shall he as near the premises to he sold (in case the- sale be of real estate) as practicable; and a copy of such notice shall be served on the grantor in the deed, or his agent or personal representative, if he or they be within the county, at least twenty days prior to the sale.” The evidence is full that all these requirements of the statute were complied with, provided Centreville, Union, and Peterstown are public places, and that the Bed Sulphur Springs was as near this tract of land as practicable; and the advertisement contained all that is required to he in such advertisement. There was no copy of the advertisement filed in the cause or with the depositions. The only description, which after more than two years, is given of the advertisement, was that “ it was the notice of the sale of laud under a deed of trust executed by Nancy Burke to L. G. Hale, trustee, for the benefit of William Adair jr., which deed of trust bore date March 30, 1875.” No witness testifies, that the several places, where this advertisement was posted, were public places, such as the law requires advertisements of sale to ho posted at. But on the other hand it must be observed, that there is not one particle of evidence in any degree tending to show, that the advertisement. was in any respect defective or that the places, at which it was posted, were not the places, at which the statute-law required it to be posted. But on the contrary-there is much in the cause, which tends to show, that this statute-law was in all respects complied with. In the first place, James IGeatley the then owner of the land was present at the sale. He had received probably a month before a copy of this advertisement, yet he made no objection to the sale, because the advertisement was in any respect defective, nor was any complaint of this kind made so far as -the record shows for more than two years and seven months, when he filed his bill in this cause making this allegation. Only three days after the sale the trustee, L. 0. Hale, made a deed for this land to the purchaser, William Adair jr., in which he recites: “Whereas said trustee by — 157 — virtue of the authority vested in him by the deed of trust herewith mentioned, did sell as required by law a certain tract of land situated in the county of Monroe and State of "West Virginia conveyed by Haney Burke to L. C. líale, trustee, by deed bearing date the 30th day of March, 1875, and recorded in deed book W. page 203 in the office of the clerk of Monroe county court.” This deed was duly recorded on October 20, 1879, and was distinct notice, that the trustee claimed to have advertised this land properly. The owner of the land, who had lost it by this sale,'the plaintiff, James Keatley, know whether' this laud had been properly advertised having, as lie admits, seen the advertisement. Yet he does not complain of its being insufficient for nearly two and a half years. And then in his bill makes the reckless statement, that it was “not advertised;” implying that it was sold without any advertisement, which was clearly disproved. The appellant’s counsel insists that the burden' of proving that sections 6 and 7 of chapter 72 of the Code have been fully complied with rests upon the purchaser at a sale by a trustee under a deed of trust, and that he is not relieved of this burden by showing that a deed has been made to him by the trustee and duly recorded or by the lapse of time since the sale and the making of the deed. To sustain this position Gibson's Heirs v. Jones et al., 5 Leigh 370 is referred to. That case differed from this in several important particulars. The land in that case was not sold till after the death of the grantor in the deed of trust; and the purchaser sold to a third party. The bill assailing the deed to the purchaser from the trustee alleged, that the sale was a private •sale. The answer of the purchaser claimed, that the sale was a public sale, and that the administrator of the grantor was a bidder at it. The evidence proved, that there were but few persons at the sale, and that the land sold low. The cause was never set for hearing as to the trustee; and he never answered. Ho proof of any sort was offered, that the land was advertised; and the answer of the purchaser only said : “He supposed the sale was duly advertised.” The decree of the court below dismissing the bill was properly reversed, as the trustee, who was a necessary party in such suit, was not before the court, when the decree was rendered. — 158 — But in rendering the opinion of the court Judge Tucker says: “Indeed an opinion has been entertained by able men that a trustee ought not to proceed to sell, when the debtor dies; since by his death the duty of redeeming and the benefit of redemption, which were before blended in the same person, are now separated; the duty devolving on the executor, to whom it belongs to discharge the debts, and the benefit accruing to the heir, who has a right to demand of the executor if he assents to relieve the trust subject from the encumbrance. Moreover the heir not being cognizant of the debts, is unprepared to defend the estate from an unjust sacrifice. On these grounds Judge Coulter allowed an appeal when I was at the bar, though I am unable to say what became of it.” See p. 374. On page 373 the Judge further says: “The bill charges that the sale of the trustee was made without advertisement, and calls upon the trustee to answer to that declaration. They have not answered nor has the fact of advertisement been proved. The onus as to the proof was on the defendants, since the plaintiffs cannot prove a negative. "We cannot then take the advertisement as proved; but on the other hand we cannot take its existence as negatived, because those who were ’ cognizant of that matter, are not before the court.” And again on page 375 he says: “ The bill charges the sale to have been irregularly made, and without advertisement, by which a great sacrifice was produced. The answer does not allege that there was an advertisement. The defendant took it for granted the proceedings were regular. It became him to prove they were so. The proof lay upon him, for he, had the affirmative of the issue as to this point. The plaintiffs could not prove there was no advertisement. They made an effort to do so by making the trustees parties; but their bill was dismissed without the trustees having ever been brought before the court.” In that case the suit was brought to set aside the sale in less than a month after the s'ale was made by the trustees. The court of appeals of Virginia did not set aside the sale but only remanded the cause to the circuit court, in order that proper enquiries might be made before a final decree — 159 — was entered. There is no doubt but that this decree was proper, the cause really not being ready for hearing. But in what we have quoted from Judge Tucker’s opinion are expressions, which this Court has condemned. Thus in Spencer & Miller v. Lee, 19 W. Va. 179, this Court (syllabus 3) held: “A court of equity will in no case set aside a sale made by a trustee, simply because it was made after the death oí the grantor.” In this concurred President Johnson and Judges Jlaymond and Green. Judge Patton did not concur in this, and in his opinion approves of the remarks of Judge Tucker just above quoted. Judge Green in his opinion disapproves of them and with his views on this point all the judges except Judge Patton concurred. In Dryden Adm’r v. Stephens et al., 19 W. Va. 15, President Johnson speaking of the remarks of Judge Tucker last above quoted says- “This decision we approve; but we cannot assent to the broad doctrine stated by Judge Tucker in his dictum that in every case and at any time all a party, who is interested to have a deed from a trustee cancelled, must do is to file his bill and charge that the sale was not. authorized according to the provisions of the trust-deed; and when the defendant’s trustee answers, denying the charge in the bill, and there is no other proof in the ease on the point the deed must be cancelled. If this be true many land-titles hang by a very slender thread indeed.” Judge Johnson shows the approval of this dictum of Judge Tucker by the special court of appeals of Virginia, composed of circuit judges, in the ease of Normana. Hill, 2 Patt. & II. 676; and he then reviews the cases of King v. Inhabitants of Whiston, 4 Ad. & E. 607; Thayer v. Barney, 12 Minn. 502; Smith v. Jordan, 13 Minn. 271; O’Hara v. Blood, 27 La. Ann. 57; Banks et al. v. Bales, 16 Ind. 423; Drake v. Mooney, 31 Vt. 617; and Wood v. Terry, 4 Lans. 80. From these cases he infers that upon the general principle acted on in them, though it was applied to a different subject, it ought to be held, “that the execution of the deed to the purchaser by the trustee is prima facie evidence, that all the steps necessary for the trustee to take, in order to give him a right to make the deed, had been taken, and that this presumption would be conclusive, unless rebutted by other facts and circumstances in the case. Why should a cestui que trust permit — 160 — Ms agent to make the sale and without showing malafides on the part of the agent he permitted to set aside the sale, unless the agent first showed he had not sold contrary to law?” In that case in syllabus five the quaere is put: “After a sale and conveyance by the purchaser at a trust-sale to a third party who had no notice of a detective advertisement, could the validity of the sale and óf the deed to the purchaser under the trust-deed be questioned?” Upon the authorities cited by Judge Johnson in Dryden Adm’r v. Stephens et al., 19 W. Va. 15, 16, I conclude, that after a sale is made by a trustee, who has not only the authority to sell but the legal title also, and the trustee has en7 tirely completed his duties by making a deed for the land sold to the purchaser, then in the absence of all proof to the contrary it will be presumed, that he has done his duty by properly advertising the land before the sale. In addition to the above authorities referred to by Judge Johnson I refer also to Hougham v. Sandys, 2. Simons 95 (Con. Eng. Chy. 348). The vice chancellor says: “The first objection made to the validity of this appointment of the 14th of April, 1761, is that it appears that, before it was executed, there was some other apointrnent made by a deed-poll on the 20th of June, 1760; and it is said because it docs not appear what has become of that deed-poll, and because it is impossible, if it does not appear, to be quite sure that the deed-poll itself has been revoked by the appointment of the 14th of April, 1861, and because it might happen that, if it was not revoked, the limitations contained in it would be utterly inconsistent with the limitations contained in the instrument of the 14th of April, 1761, therefore the instrument of the 14th of April, 1761, cannot be considered a valid appointment. It appears to me there is no foundation for that objection. Hence we have an instrument under hand and seal, solemnly made, expressly recognizing the instrument of June preceding, .and formed for the express purpose of revoking that instrument, and making new limitations apparently inconsistent with it. * * * I am asked when I find something so clear and explicit as to the intention of the party, declared by the existing and forthcoming instrument of the 14th of April, 1761, to pay no — 161 — regard to.it whatever, and to consider it altogetlior inoperative, because a conjecture is made that the power of revocation reserved in the deed of June preceding, was not duly executed by this instrument oí the 14th of April, 1761, deliberately made for the purpose oí revoking it. My opinion-is that I am bound to act and must feel my judgment concluded by that which is plain and explicit and I cannot allow this instrument, which apparently is a perfect and valid instrument, to be set aside and overruled by a conjecture as to the contents of that deed which cannot be produced/’ So where a trustee by a solemn deed duly executed and recorded conveys to a purchaser a tract of land for the express-purpose of carrying into execution a trust imposed on him by a deed of trust recognized in the deed, and stating on the face of the deed that the land had been sold in the manner-required by law, we cannot hold such deed inoperative, merely because it is conjectured, that the advertisement which is not produced, might have been informal or not posted at the places required by law. The case before us is stronger; for the trustee having not' a naked power of appointment but being invested with the legal title, his deed to the purchaser conveys that legal title; and if he is to be deprived of his legal advantage, it must be by affirmative proof at least that he 'obtained that legal advantage by irregularity if not by fraud. The presumption arising from the deed being made to the purchaser, that the land had been properly advertised, would be weak, if the suit assailing the advertisement was brought promptly; but it would strengthen with time, and if the suit was, as in this case, brought two or three years after the deed was made to the purchaser, the principle omnia presumiintur rite esae acta would apply with increased force; and much stronger evidence would be required to rebut the presumption that the land was properly advertised. In the case before us there is not only no evidence to rebut this presumption, but alargo amount of evidence to strengthen it. The Bed Sulphur Springs, where one of the advertisements is proven to have been posted for the required time,, is proven to have been within a mile of the tract of laud sold, and that it was an election-precinct. ’We may therefore well — 162 — infer, that it was a public place and as near the land to be sold as practicable. It was also proven, that the notice of sale or advertisement was posted at least thirty days prior to the call on the front door of the court-house of the county, in which the land lies, and at three other places in that county, all of which bore names and were therelore presumably public places. And it was also proved, that a copy of this notice was served upon the grantor of the deed of trust more than thirty days before the sale. And in opposition to all this evidence the plaintiffs introduced not one particle of evidence, which tended in the least degree to give rise to a suspicion even, that the land was not legally advertised. I conclude therefore that the decree of March 20, 1882, dismissing the several bills in these causes was fully justified by the evidence as well as that portion of said decree which ordered that “Win. Adair jr. do recover of the plaintiffs respectively his costs by him in'these causes expended.” But it remains to enquire, whether this decree ought not to have ended there, and whether the last clause of this decree was proper to be entered. That clause is: “And a writ-of possession is awarded the defendant Adair, to put him in possession of the land.” The counsel for the appellees insist, that this part of this decree is to be regarded as a decree on the affirmative matter set up by the defendant, Wm. Adair jr., at the close of his answer to the amended bill accompanied by a prayer for affirmative relief, and which portion of said answer si ould be regarded as a cross-bill; and as no replication in .writing ivas filed thereto the allegations of this cross-bill ought to be regarded as confessed. This portion of this answer thus claimed to be a cross-bill asks, that a certain agreement made between the defendant, Win. Adair jr., and Nancy Burke may be cancelled, and that he may be awarded a writ of possession for said land. What is meant by this it is difficult to determine. It apparently asks for a writ of possession for the entire tract of land, though it is possible it only meant to ask for a writ of possession for the house and few acres of land connected therewith named in this agreement asked to be cancelled. This agreement was not filed with the answer or its •contents even described particularly. It is simply referred — 163 — •to as an agreement filed with the depositions in the cause. And if we look at it, we find that it recited, that Nancy Burke surrenders to "Wm. Adair jr. possession of the entire farm purchased recently by him of the trustee, and he agrees to allow her to occupy the house in which she then lived, and five acres of land on the eastern end of the farm, her occupation- of it to continue during her life. This agreement concludes : “It is understood that this grant to Nancy Burke is a donation from said Wm. Adair jr.” This transaction is thus stated in the following portion of said answer of Wm. Adair jr., claimed to he a cross-bill: “That after the sale to him he brought this suit against,her for unlawful detainer and by the judgment of a justice obtained possession of the said land, when of his own motion he entered into this agreement with her, whereby ho allowed her to remain in possession of the house upon the said land and.a few acres in connection therewith; but she contrary to the provisions and spirit of the said agreement has continued to prosecute this suit.” And be prays therefore a rescission of this agreement and writ of possession -for said land. Suppose the facts stated in this answer are regarded as true, would it follow, that the defendant Adair had a right to have this deed annulled? It seems to me far from clear. It is true that this answer does allege, that “ contrary to the provisions and spirit of this agreement she has continued to pros, ecute this suit.” The inference to bo drawn from this statement would be, that the consideration given by her for this grant was an agreement on her part to abandon this suit; hut the agreement itself on its face shows-, “it was understood that this grant to Nancy Burke was a donation from . Wm. Adair jr.,” which apparently contradicts the statements of this answer; and yet this agreement constitutes a part of the answer. If from the agreement itself I was to infer the character of the transaction, I should say, that if the grant to Xancv Burke of these five acres of land for life was not entirely gratuitous, the only consideration for it was the surrender to Wm. Adair jr. of the entire balance of the farm. It is true a justice had rendered a judgment in favor of Wm. Adair jr. for the eutire farm on a writ of unlawful entry and — 164 — detain or. But this might have been appealed from to the circuit court, and if there was really any abandonment of litigation'on her part contained within the spirit of this agreement, it would seem rather to have been this litigation in the unlawful entry and detainer case than in this case now before us. For while that was mentioned in this agreement, there was no allusion of any sort to this suit. If therefore this was regarded as a good cross-bill, inasmuch as there is not a pai’ticle of proof to sustain its allegations, and the agreement referred to in it as constituting a part of it is in apparent conflict with its statements, it is doubtful whether any relief could have been granted, because the allegations contained in it were contradictory. ft is also doubtful, whether the matters thus sought to be introduced into a cross-bill could properly be introduced in that manner. For a cross-bill should be confined to the matters stated in the original bill and should not introduce new and distinct matters not embraced therein. 2 Barb. Chy. 130, 14 W. Va. 678 and Hansford et al v. Ches. Coal Co. et al., 22 W. Va. 70. As I understand the final decree of the circuit court, the court took this view of the subject; for though it has not so expressed itself, yet it takes no notice whatever of what is doomed as a cross-bill This cross-bill has never been heard or considered by the circuit con rt. There is no reference made to it in any manner in this final decree of the circuit court. The appellee’s counsel suppose, thatthelastsontence of that decree was intended to have been action based on this cross-bill. This sentence is “ and a writ of possession is awarded the defendant Adair to put him in possession of the land.” The land, which Adair was by this provision of .the deed to be put iu possession of, was the tract of land he had purchased of the trustee named in the bills and proceedings. There is no reason for confining it to the five acres named in this cross-bill. If the court had intended acting at all on this cross-bill, as a matter of course it would first have rescinded or refused to rescind the agreement referred to in this so-called cross-bill. If it had rescinded this agreement, then it might possibly have awarded a writ of possession, though whether rightfully or not I will not say. But as the circuit court has — 165 — never acted upon tlie case attempted to be' made by this cross-bill, as it is called, this Court, which is only a court ot appellate jurisdiction, will express no opinion with reference to the matter contained in the so-called cross-bill. See Armstrong et al. v. Town of Grafton, supra, if or will we remand this cause to the circuit court to be furl her proceeded with, as it has finally determined these causes on their merits,'and in a manner we deem just, except that no writ of possession should have been awarded Win. Adair jr. This litigation being thus, ended should not be prolonged by introducing into it at this late stage the.matters which may be in controversy arising out of the new matters contained in this so-called cross-bill. It is doubtful whether they ever could have been properly introduced into those causes by cross-bill, and certainly they can be more legitimately litigated in a new suit or suits. We shall therefore provide in our decree that it shall be without prejudice to the rights of Vm. Adair jr. or of Nancy Burlce to enforce or have canceled the agreement ot November 14, 1879, or to any right, which Vm. Adair jr. may have to recover by proceedings at. law the tract of land convoyed to him by L. 0. Hale trustee or any part thereof. The provision of the decree of March 25, 1882, whereby a writ of possession was awarded the defendant Adair not being action upon the so-called cross-bill was obviously erroneous and must be reversed. The residue of the decree of March 25, 1882, must be affirmed as also the vacation-order made June 11, 1879; and the appellants must recover of the appellee Vm. Adair jr. their costs in this Court expended; and this Court should enter up such decree as has been indicated. Aeeirmed in Pakt — Reversed in Part.