Brooks v. Clintsman

Whittle, P., delivered the opinion of the court. This is an appeal from a decree of the Circuit Court of King and Queen county in a suit in which appellee was plaintiff and appellant defendant. The history of the casé is this: On January 3, 1902, appellee, Mrs. M. L. Clintsman, who lived at Grand Fork, North Dakota, by her son, Leslie L., Clintsman (husband of appellant), who resided with his family in King and Queen county, negotiated the purchase of a farm containing 132% acres of land located in that county for $700. The deed conveying the land to appellee — 738 — was duly executed and acknowledged by the grantor, Alfred Bagby, and deposited with his brother-in-law and agent, R. N. Pollard, with instruction to deliver the deed upon payment of the purchase money. Payment was made with the personal check of appellee and passed by her son to Pollard, who in turn delivered the deed to him. The deed was not put to record until November 7, 1903, nearly two years after its execution and delivery. Shortly before it was admitted to record, Leslie L. Clintsman, in the presence of Mr. Pollard, erased the name of his mother from the deed and inserted his own name as grantee therein, and then had the deed in its altered condition recorded. By permission of the mother the land was occupied by the son and his wife and children from the time of the purchase until his death (the exact date of which does not appear, but sometime between the making of his will, July 2, 1903, and February 2, 1904, when the will was admitted to probate). Testator by his will bequeathed to his wife, “all of my possessions and things now in my possession and name * * * hoping if she outlives me, that she will look after my aged father and also if she can in any way assist my mother, that she will do so.” The will does not in terms undertake to devise the land, nor is it shown whether his name was substituted for that of his mother in the deed before or after he made his will. Leslie L. Clintsman’s father and mother had been divorced, and the father lived with the son on the land from the date of ihe purchase until the son’s ■ death. Afterwards, upon the .alleged ground that the father was not a suitable person for her .children to be associated with, appellant refused to permit him to remain in the home. And, a year or two after the death of her husband, she married a second time. Mr. Pollard gave his deposition in the case about twelve years after the alteration of the deed, and says he thinks the son at that time produced a letter from his mother — 739 — authorizing him to make the change. Appellant in her answer to the bill also states that there was such a letter, but that it had been lost. She and others likewise testified to alleged admissions by appellee that she intended the property for her son. Mr. Pollard, as a mutual friend, seems to have endeavored to adjust the differences between appellant and appellee; and in letters written by appellee to him about that period she manifested the tenderest devotion for the memory of her son, and absolved him from any intentional impropriety in the alteration of the deed. It is not clearly shown when Mrs. Clintsman first learned of the alteration. Upon the case thus made the circuit court was of opinion that the substitution by the son of his name for that of appellee as grantee in the deed was a void act and invested him with no right or title to the land in controversy, and decreed accordingly. From that decree this appeal was allowed. [1] The controlling principle in cases of this class is succinctly stated in 2 Minor on Beal Property, sec. 1190: “No erasure or alteration in a conveyance, nor even the cancellation thereof by mutual consent of the parties, can divest an estate already vested by operation of the deed; for that would be in conflict with the statute of conveyances, which declares that no estate of inheritance or freehold, or for a term of more than five years in lands, shall be conveyed unless by deed or will.” 1 Va. Code, 1904, sec. 2413; 2 Min. Inst. 738. The same doctrine was announced by this court in Suttle v. R. F. & P. R. Co., 76 Va. 284, 286, as follows: “It has been long settled in this State that the disclaimer of a freehold can only be by deed or in a court of record. See the case of Bryan v. Hyre, 1 Rob. B. (40 Va.) 101 (39 Am. Dec. 246)—a conclusive authority on the subject.” — 740 — [2, 3] Appellant also invokes the doctrine of equitable estoppel to reverse the decree. It is true that appellee permitted her son and his family to occupy her farm free of rent for a number of years; yet the doctrine of equitable estoppel cannot be rested alone upon that foundation. The son was fully advised of the state of the title to the land and the limitations upon his possession, and was induced by no declaration on her part to alter his position injuriously to himself. It may be that he was disappointed of the hope that some day his mother would bestow the property upon him, but the doctrine is not founded upon expectation; ordinarily it rests upon past or present considerations, and not on possible future events based upon opinion as to the supposed intention of another. In the case of Newport News, etc., Co. v. Lake, 101 Va. 334, 343-344, 43 S. E. 566, 569, it is said: “Experience has shown that in controversies involving title to real estate,- it is far safer to rely on written muniments of title than ‘the slippery memory of man.’ Hence parol defeasances are not favored—a mere equitable estoppel constitutes no defense to an action of ejectment, (Haney v. Breeden, 100 Va. 781, 42 S. E. 916) ; and when such defense is set up on the equity side of the court, it must be distinctly charged and clearly proved.” [4] It is a familiar rule that an equitable estoppel relied on to conclude another’s known right of property must be certain to every intent, and is not to be taken by argument or inference. It is quite apparent that the claim of appellant to the land in controversy falls far short of the requirement of the equitable doctrine relied on, and cannot be maintained. [5] The point likewise is stressed that Mrs. Clintsman has lost her right to maintain this suit in consequence of her laches in bringing it, by which appellant has been deprived of the benefit of the testimony of her late husband, — 741 — Leslie L. Clintsman; that he had acted for his mother and himself throughout the transaction, and, if living, his evidence would be of the utmost importance upon the question involved. This contention is demonstrably without merit. The record shows that Leslie L. Clintsman died within less than a year after inserting his own name in place of his mother's as the grantee in the deed. Appellant, of course, had no cause of action until after the alteration had been made; and, therefore, the loss of his evidence by death a few months later can neither be imputed to lapse of time nor to the laches of appellee in bringing her suit. As we have seen, she lived in a distant State, and the bill charges that “complainant instructed her son, the said Leslie L. Clintsman, to have the tract of land conveyed to her, and she gave him $700.00 to pay for the same; and having implicit confidence in her son * * * believed that he had obeyed her instructions until several months ago * * * ” when she was reliably informed of the alteration of the deed. It is true that this allegation is controverted by the answer of appellant and by her testimony; but, however that may be, she suffered no loss of evidence from delay in bringing the suit. [6] Finally, in the absence of the statutory provision on the subject, upon elementary principles, the evidence falls far short of establishing a parol gift of the land from the mother to the son which could have been enforced either by him or those claiming under him in a suit for specific performance. But since the Code of 1887 took effect, no parol gift of land is enforcible. Section 2413 provides, “nor shall any right to a conveyance of any such estate or term in land” (an estate of inheritance or freehold, or term of more than five years) “accrue to the donee of the land or those claiming under him, under a gift or a promise of gift of the same hereafter made and not in — 742 — writing, although such gift or promise be followed by possession thereunder and improvement of the land by the donee or those claiming under him.” The latest case on this subject is Wohlford v. Wohlford, 121 Va. 699. We find no error in the decree of the circuit court, and it must be affirmed. Affirmed.