Boyd v. Cleghorn

Harrison, J., delivered the opinion of the court. This court does not concur in the reasons assigned by the Circuit Court for rendering the decree complained of. If, [781] however, that decree appears to be a proper one for other reasons, it will be affirmed. Newell v. Wood, 1 Munf. 555. The object of this suit is to enforce specific performance of two parol agreements for the sale of land, one alleged to be with the father of the two female appellants, and the other between his alleged vendors and those from whom said vendors purchased. It appears that the thirteen acres of land in controversy were patented in 1842 to Charles Talbert; that it was extremely poor, of very little value, and only suited for an humble home for persons of very small means. It further appears that in 1861 the heirs of Charles Talbert sold this land to Charles Cleghorn and 'William Shannon, and delivered to their vendees the patent which had been issued to their father, but that no deed of conveyance or contract in writing was executed as evidence of the purchase. It further appears that at the time of this transaction David Allison was in possession of the land, occupying it as a home for himself and family, and that very soon after the purchase by Cleghorn and Shannon said Allison paid them for the land $200 in Confederate money as the full purchase price asked by them, and received from them the patent of 1842; that no deed or contract in writing was executed as the evidence of this sale. It further appears that David Allison continued to occupy this land as his home, with a large family of sons and daughters until the day of his death in 1889; that his children have continued to occupy the same since his death; and that in 1883 David Allison obtained from the Talbert heirs a deed conveying him the legal title vs hich was duly recorded. It further appears that in 1861 William Allison, one of the sons of David, who at the time was not more than twenty-one years old, enlisted and left home as a soldier in the Confederate service, leaving a wife and two children, the female appellants, with his father; that shortly afterwards William was killed; that his widow and two children continued to live [782] with David Allison until 1867, when she married again, and moved with her two children to live with her second husband. These two children of William Allison, who are now married w omen, bring this suit, making the heirs of Charles Talbert, the heirs of David Allison, the heirs of William Shannon and Charles Cleghorn parties defendant, and allege that their father, William Allison, bought this land from Cleghorn and Shannon; that he sent the money from the army to David Allison to pay for it; that when David Allison paid over the money and received the patent it was as agent for their father; that David Allison had peen permitted to occupy the land as a home during his life time without charge; and that in securing the deed in 1883 from the Talbert heirs David Allison had committed a fraud upon the rights of appellants, and that any title so acquired inured to their benefit; and that they have the right to den and from the heirs of Charles Talbert, the heirs of William Shannon, and from Charles Cleghorn, a deed conveying them the legal title to the land, and the right to have the deed executed to David Allison by the Talbert heirs declared fraudulent and void, or a decree declaring the title thus acquired to inure to their benefit. The heirs of David Allison answer this bill, and broadly and flatly deny its allegations, and positively assert that their father was the true and lawful owner of the land, had paid for the same with his own means, and had occupied it for thirty years without a whisper against his title from any source; that since his death it had been continuously occupied by his heirs; that they had erected numerous buildings upon it, and that all this had been done in the presence of appellants, and without objection from them. That David Allison, finding that the legal title was outstanding in the Talbert heirs, had in 1883 gotten from them a deed of conveyance for the land; that this was done at his own expense and for his own benefit, and was not done, as alleged, to defraud His grandchildren. [783] Equity will at all times lend its aid to defeat a fraud, notwithstanding the statute of frauds, yet to justify the court in relaxing the operation of the statute, and in compelling the specific execution of a verbal contract for the sale of land, clear and convincing proof is essential, otherwise the desire to prevent fraud might result in great wrong and injustice to him. who has the lawful right, and thus the prime object of the statute be defeated. Wright v. Puckett, 22 Gratt. 370; Pierce's Heirs v. Catron's Heirs, 23 Gratt. 588; Hale v. Hale, 90 Va. 728; Darling v. Cumming, 92 Va. 521. The evidence in the case at bar is not of the clear and convincing character that is necessary to entitle appellants to the relief sought. It consists chiefly of alleged verbal declarations and admissions made by David Allison many years ago which cannot be contradicted or explained, now that he is dead, and the slightest mistake cr failure of recollection might totally alter the effect of such declarations. Such evidence is always extremely unsatisfactory. The payment of the purchase money by David Allison, his long uninterrupted possession, and that of his heirs since his death, with the full knowledge and acquiescence of appellants, the improvement of the property without objection by them, the acquisition and recordation of the legal title by David Allison in 1883, are circumstances of too much weight and consequence to be overcome by the evidence in this case tending to sustain the allegations of the bill. Eor these reasons we are of opinion that there is no error in the decree appealed from to the prejudice of appellants, and it must be affirmed.