Brillhart v. Mish

Jones, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court for Washington County sustaining exceptions to a sale made under a decree of that Court and setting aside the sale. The facts which give rise to the questions that are involved in the litigation are that Sarah J. Brillhart of Washington County died in 1898 leaving surviving her her husband, John W. Brillhart, a son, George William Brillhart, and a daughter, Mary C. Resh, the wife of Franklin D. Resh. She died intestate seized and possessed of several parcels of real estate, situated in Washington County and of a farm in Berkely ⁴⁵² County, West Virginia.

On the 18th of November, 1899, her surviving husband, John W. Brillhart, executed to one Samuel P. Angle a deed in which it was recited “Whereas the said John W. Brilhart has a life estate in six farms situated in Washington Co.unty, State of Maryland, and one farm in Berkely County, West Virginia, by reason of his wife, Sarah Jane Brilhart being the owner thereof, in fee, his wife having departed this life and children being born to them which are living. And whereas the said John W. Brillhart by reason of bodily infirmities, more particularly the loss of speech'brought on by paralysis, and by reason of other bodily infirmities has become incapable of managing his large financial interests as they should be managed, both in the interest of himself as life tenant and of his children as remaindermen. And whereas it is the desire of said John W. Brillhart to make such arrangements of his affairs that they may be more properly managed under the direction and supervision of the Court of Chancery of Washington County. * * * And whereas lie reposes great confidence' in Samuel P. Angle as a man of integrity and knowledge of the management of farms and of business affairs in general.” It then granted and provided as follows: “In consideration of the premises and of the sum of one dollar * * * the said John W. Brillhart does hereby grant ■ and convey, transfer and set over unto the said Samuel P. Angle and to his successors as hereinafter provided, all that life estate in said farms * * * together ■ with all crops now growing, garnered or in process of being gathered, together with all choses in action, all cash in bank and all moneys owing to him from any source whatever, as well as every nature and description of estate, asset, chattel, or any other kind of property in interest whatever belonging to the said John W. Brillhart. To have and to hold said property, interest and estate unto the said Samuel P. Angle, and to his successors as hereinafter provided, in trust and confidence nevertheless for the following purposes and uses, that is to say, first, to manage said farms as landlord, to the same extent, and as fullyas if the said John W. Brillhart were man ⁴⁵³ aging said farms in person, to make leases thereof to tenants, give notice to quit, to contract for the landlord’s share of seed wheat and fertilizer and to do every other thing which is incumbent upon the landlord of a farm to do, fully clothing the said Samuel P. Angle, trustee, with all other powers in addition to those expressly enumerated which may be necessary for fully carrying out the purposes of this trust.

Second, to gather the crops on said farms and market them at such times and places as maybe most convenient and for the best interests of this trust. Third, to collect all moneys from any and all persons whatever who may be owing and to sue in his name as trustee and to, do any and all things which may be necessary for * * * collection and settlement of all claims owing to the said John W. Brillhart as fully as if he were doing it in proper person.” It is further provided that the said Angle shall on the first day of January in each year, or within fifteen days thereafter, make settlement in the Circuit Court of the county of all moneys received and expended by him, his report “to be uuder oath and subject to exceptions, as other accounts formerly stated by the auditor” of the Court in chancery cases; that he shall pay to said Brilhart such sums during the year as may be necessary for his own comfortable maintenance and shall expend for the personal benefit and comfort of said Brillhart such other sums for medicines, medical advice, clothing, traveling expenses, &c., as he may require not to exceed on the average thirty dollars per month, but if a greater sum be needed it shall be paid but not until the end of the year when the annual settlement is made in the Circuit Court — it being the intent “that all expenditures necessary for the comfortable maintenance and health” of the said Brillhart “shall be made in reason and without stint;” that the said Angle should give bond, &c.; that he should receive compensation for his services at the rate of five per cent on expenditures and the same on his receipts; that the trust should be irrevocable and should supersede all powers of attorney previously made. The said Angle agreed to accept the trust subject to the con ⁴⁵⁴ •ditions and provisions set out in the deed and to consult with the said Brillhart “and receive his advice about the management of farms and endeavor to the fullest extent possible to adopt the views” of said Brillhart “and have him co-operate with the said trustee;” but it was to be expressly understood the judgment of the said Angle should be always paramount. •This deed was acknowledged and recorded. On the 12th of October, 1903, John W. Brillhart executed what was intended to be a revocation of the deed which has been referred to and recited.

On the 17th of October, 1903, Mary C. Resh andher'husband filed in the Circuit Court for Washington County a bill in equity alleging the death of Sarah J. Brillhart, intestate, and possessed of the real estate which has been mentioned; that she left surviving her John W. Brillhart, her husband, and two adult children, the said Mary C. Resh and George W. Brill-hart; that the undivided interest of the said Mary C. Resh • in the real estate left by the said Sarah J. Brillhart had been'conveyed to her husband and co-plaintiff, Franklin D. Resh, and that of the said George W. Brillhart to his wife, Iva M. Brill-hart; that the said real estate was not susceptible of partition without loss and injury; and praying a decree for a sale of the same for the purpose of partition. To this bill John W. Brill-hart and George William Brillhart and the latter’s wife, Iva MBrillhart were made defendants and were the only defendants. John W. Brillhart filed his separate answer thereto admitting “all the matters and things” stated therein and consenting to a sale; and that the lands should “be sold free of his interest as surviving husband provided that he receive from the sale of said lands the amount of money allowed a surviving husband” by the equity rules of the Court. George W. Brillhart and his wife filed their joint answer admitting the allegations of the bill, consenting to a decree for sale, and agreeing that out of such of the proceeds of sale as might be distributed to the share of Iva M. Brillhart there might be paid “the liens existing against” the “respondents or either of them * * * until they are wholly satisfied and discharged.” A ⁴⁵⁵ decree for a sale of the lands in question was thereupon passed.

After the decree had been passed certain judgment and mortgage creditors of Franklin D. Resh and wife, and of George W. Brillhart and wife entered voluntary appearances in the cause and filed answers averring themselves willing that the lands decreed to be sold might be sold free of their liens provided that the proceeds of sale falling, in the distribution thereof, to their respective debtors be first applied according to legal priority to the satisfaction of their claims. On December ioth, 1903, the trustees appointed by the decree to make sale of the land in question reported a sale of several parcels thereof. To this sale exceptions were filed by Frank W. Mish, a purchaser of one of the parcels sold and by Samuel P. Angle, the trustee named in the deed of the 18th of November, 1899. The purchaser, Mish, excepted because of the alleged outstanding title to the property in Samuel P. Angle, who had not beeh made a party to the proceedings in which the decree for the sale had been passed, and who claimed to still have the right to collect the rents and profits of the real estate decreed to be sold during the life of the said John W. Brillhart; and because of two outstanding mortgages overdue and unpaid to which the undivided interest of P'ranklin D. Resh and wife in the real estate sold to him was subject; and which he claimed should be paid out of the proceeds of sale of the said interest and released before he is required to take and pay for the land of which he was reported as purchaser.

Samuel P. Angle bases his right to except to the sale upon his title under the deed from John W. Brillhart to him; and while setting up other grounds of exception urges, as the principal ground, that he as trustee under that deed was not made a party to the cause and “has not consented to the decree of sale * * * * and the Court was without jurisdiction as to the estate of John W. Brillhart to pass said decree ; ” and that the trustees appointed by the decree in the cause to make sale of the land in question had “no authority to sell or convey the interest of the said John W. Brillhart in said lands.” ⁴⁵⁶ ' As respects the exception to the sale upon the part of the purchaser Mish, which is based upon the fact of the property-purchased by him being subject to the mortgages mentioned in his exceptions the record contains evidence of the existence of the mortgages; and, if, as he alleges, it was represented to him by the trustees, and he was induced to purchase ■ under the belief, that he was to get a clear fee-simple title to .the land sold to him he will be entitled to have the property freed from the liens of the mortgages by having the same satisfied from the purchase-money or to be released from his purchase. The record discloses nothing as affecting this exception further than to show the existence of the' mortgáge liens therein referred to; and nothing more definite can be determined in regard to it than what has been said. The ex- ‘ ception of this purchaser based upon the alleged outstanding title in Samuel P. Angle, as trustee, under the deed of the