CHARLESTON.

#### French J. Raines *v.*James M. Raines

Submitted March 18, 1924.

Decided March 25, 1924.

1. *Trusts.'*— Father, *-Permitting Son to Possess and Improve Lands Purchased Jointly Will he Deemed to Hold Legal Title in Trust.*

Where a father and. son purchase land, each contributing- to the purchase price, and the title is taken by the father for the son at the son’s instance and direction, and the son im*66mediately takes possession of the land arid continues in possession for nineteen years, making improvements thereon equal to or in excess of the purchase price, and the father hy numerous declarations to his neighbors and friends recognizes the son’s right to' the land and his ownership' thereof and makes a will devising the land to the son hy which the son is lulled into security; hut after estrangement has arisen from some trivial matter between them the father seeks to sell the land claiming it as his own; the father will he deemed as holding the legal title in trust for the son, and a court of equity will extract it from him and invest the son therewith. (p'. 71).

2. *Same.*— Accounting *Proper, Where Evidence as to Parties’ Rights Not Olear.*

Where in such case the evidence is not sufficiently full and clear to establish that the moneys expended hy the father for the son in the purchase were intended as gifts or advancements to the latter, and that the father has received moneys from minerals optioned and timber, sold from the land, the relation of debtor and creditor exists between them and an accounting is proper and should he had between them in a suit to extract the legal title, (p. 71).

McGotnis, Judge, absent.

Appeal from Circuit Court, Randolph County.

Action by French J. Raines against James M. Raines. From a decree for defendant, plaintiff appeals.

*Decree reversed; bill reinstated; remanded•*

*W. B. <& E. L.*Maxwell, for appellant.

*LeRoy See,*for appellee.

Lively, Judge:

The decree appealed from denied the relief prayed for and dismissed the bill.

The import of the bill is to compel the defendant to execute a deed to plaintiff for a tract of land of 100 acres lying on G-lady fork in Randolph county, which was conveyed to defendant by deed of March 13, 1903, from E. C. and David B. Canfield, plaintiff claiming that the land belongs to him under and by virtue of an agreement entered into with his *67father, tbe defendant, at tbe time of tbe purchase. Plaintiff s bill sets out in full tbe transaction by which tbe land was purchased from tbe Canfields, and avers that be and bis father, tbe defendant, purchased tbe land together, plaintiff furnishing more than one-half of tbe down payment with tbe understanding that, tbe land should be bis and that what money was furnished as a part of tbe purchase price by bis father was to be considered as an advancement out of tbe father’s estate and not to be repaid by plaintiff; that be actually furnished $300 of tbe $500 which was paid in cash and was put in immediate possession of tbe land, upon which be has made valuable improvements amounting to at least $1,500, and that be hás remained in exclusive possession from that day until tbe bringing of tbe suit, nearly twenty years, and has paid tbe taxes thereon; that tbe purchase money notes amounting to $500 (tbe entire purchase price being $1,000) were executed by bis father and have since been paid by their joint efforts; that bis father has been repaid all of tbe money which be paid on tbe purchase, out of tbe land and tbe timber thereon, having at one time received $100 for an option on tbe mineral and $600 from tbe timber sold off of tbe place; that it was understood at tbe time tbe land was purchased that it should be bis and that tbe deed should be made to him whenever requested. Tbe bill further says that in tbe earlier part of tbe twenty years after tbe purchase be requested execution of a deed, but was assured by bis father that be bad made bis will and that tbe land would go to him by that method; that be and bis father have been in perfect accord and that be was not insistent upon execution of tbe deed and carrying out tbe agreement until in later years after bis father married again when an apparent estrangement arose between them; that bis father is seventy-seven years old, has become feeble and becoming incensed because plaintiff would not furnish him with $100 except upon execution of tbe deed promised, has advertised tbe land for sale on tbe market. Tbe bill asks for prevention of tbe sale and tbe specific performance of tbe contract and that a deed be made to him for tbe land.

Tbe answer denies the material allegations of tbe bill, and *68avers that defendant purchased the land for himself and not for his son, the plaintiff, but admits that plaintiff was put in possession of the land by him with a view of furnishing him a home for himself, his wife and children; admits that he has made improvements thereon and has remained in possession; avers that the rents, issues and pro-fits and timber cut off of the land by plaintiff would more than equal the improvements ; denies that defendant paid any cash payment or helped pay any of the deferred payments; denies that plaintiff has paid the taxes on the land; admits that about $300 of money and property furnished by plaintiff went into the land, but charges that it was a loan made by plaintiff to defendant; admits that the loan has never been repaid but that upon a proper accounting it will be paid; avers that it was his intention to give the land to the son but because of plaintiff’s recent misconduct he has decided not to do so, but that he intended to give to plaintiff’s wife and children the portion of his estate he had hitherto intended for him; and now he has become old and feeble and needs money and finds it necessary to sell the land.

It appears that the father owned several tracts of land in Randolph county and that plaintiff, his son, married and with three children, was a foreman on railroad construction occupying a railroad construction house on his father’s farm and that he had in cash $200 saved from his wages. The Can-fields desired to sell the 100 acres and information of that desire was conveyed to the father who said he was interested and would probably purchase the land for his son French. French (the plaintiff) says his father came to him and told him the land was for sale and that if he wanted it he would help him purchase it and asked him to- go and inspect the land. Being busy he could not then go, but in a few days thereafter went with his father and viewed the land and they concluded to purchase it. On the 23rd of March, 1903, they went to Canfield’s house where the deed was drawn. He furnished $200 for the purchase price giving a check for the same, either to the Canfields direct or to his father on that occasion; that his father owed him for a horse which he says amounted to $85 but which the father says he put in at $100, *69making $300 of tke cask payment wkick Frenck (tke son) paid on tkat occasion. Tke grantors in tke deed are dead. James R. Canfield, wko was present at tke time tke deed was made, says kotk tke fatker and son were tkere and tke fatker asked Frenck wkick way tke deed skonld be made, and Frenck told kim ke did not want it made to kimself at tkat time, until ke could “get out of tkat law suit.” referring to some litigation ke was having over a lien claimed upon some otker land wkick ke kad purckased from some of kis wife’s people. Afterwards, wken tkis witness was preparing to move on tke land in question to work, ke kad a talk witk tke old gentleman wko told kim to go on and wkatever ke and Frenck did was all rigkt, tkat tke place belonged to Frenck *■*tkat Frenck was to kave tkat part and ke could make kim a deed for it at any time. N. W. Canfield, a son of one of tke grantors, says tkat on different occasions, botk before and after Frenck took tke land, defendant told kim tke land was purckased for Frenck. Four of five otker witnesses wko lived in tke neighborhood testified tkat on different occasions defendant told tkem tkat tke land was intended for Frenck. A. L. Raines, a brother of plaintiff, says kis fatker kad told km tkat ke and French bought tke place together and tkat Frenck kad paid some of tke money on it, but how muck he was not informed. This witness says kis father told kim tke land was intended, for Frenck. A few days after , tke deed was made, plaintiff moved on tke land, and tke improvements placed thereon are estimated, by kim to be $1,500; several witnesses wko were examined on tke value of tke improvements placed them all tke way from $600 to $1,000. These improvements consisted of making a substantial addition to tke house, which is of log structure, building porches, laying floors, ceilings, covering tke barn and fencing tke land witk wire fences, cleaning up tke brush fields and removing tke rocks therefrom. In comparison witk tke value of tke land it appears tkat these improvements were substantial. Several years after tke date of tke deed tke fatker sold tke timber off of tke land and a piece adjoining, the greater portion from tke land in question, for wkick ke received $600. Afterwards tke son sold tke remaining timber, for wkick ke received about *70$40. There is no controversy about the removal of the major portion of the timber, and the fact that the father got the benefit of it. He also collected $100 for an option for some minerals supposed to be under the land. The son testified that hej paid one-half of one of the deferred purchase money notes and that he had paid the taxes on the 100 acres; and the year prior to the bringing of the suit he had paid all of his father’s taxes, including the taxes on the 100 acres. The father’s evidence is to the effect that his son had no interest in the land or its purchase, that he was not with him at the time of the execution of the deed or at the time he inspected the land before the purchase; that he furnished no part of the purchase money, saying that he had borrowed the $200 from his son and that he owed him $100 for the horse, all of which went into the cash payment. He says he still owes these sums and intends to pay the same back when he sells the land. It does not appear that any note or memorandum of the loan was given. He denies that he ever told any of his neighbors that the land was purchased for French, •and denies that he had any conversations with them about it. He denies that French paid any of the taxes, except all of his taxes for one year which he admits were paid by his son. On two of the tax tickets we find that there is a memorandum that French had paid a portion of all of the father’s taxes for those years. It is very evident that the memory of the father had become imperfect at the time his deposition was given. He says he intended to will the land to French but that a short time before the suit was brought he called on his son for a loan of $10 and was refused; then after-wards for $100 which the son refused, and he concluded that he would sell the land to raise money to meet some of his pressing necessities. He denies that he had any contract or understanding with his son about the purchase of the land. He admits his immediate occupancy and possession of it, but says it was for the purpose of furnishing his son a decent place to live and on which to raise his family. Plaintiff says that on different occasions when he asked his father to make him a deed his excuse therefor was that his wife “Bee. ” (plaintiff’s step-mother) would not sign it. This is the substance of the testimony. ,• _.

*71To support tbe decree it is argued that tbe contract, the specific execution of which is demanded, is so indefinite and uncertain that a court of equity cannot enforce it. It will be observed that the defense is that no contract at all was in existence. Defendant denies that there was any understanding or agreement that this land or any part thereof was to belong to his son; that he purchased it on his own initiative and with his own money, and placed his son on the land in order to give him a place to raise his family; a fatherly interest to help the son along. If there was a contract or agreement, we must look to the plaintiff’s evidence to determine what it was, because there is a total denial of any contract on the part of defendant. Was there a contract or understanding! We think the vast preponderance of the evidence is that there was an agreement. Then what was it! Plaintiff says his father came to him while he was working on the grade and told him that he, defendant, could buy the Canfield place and if he wanted to, he would help him buy the place and he could move down there; that they went together and looked at the land and concluded to buy, and that the land was bought for him and with the understanding that he should have a deed therefor whenever he wanted it. His explanation of the fact that the deed was made to his father is that he had purchased a piece of land from some of his wife’s relatives on which there was a lien about which he knew nothing until after the lienor or some one had instituted a suit which he was defending and did not care at that time to have the land deeded to him. He says he did not have this done to hinder or delay or defraud any of his ereditprs because he had none at that time; the' lien about which he was involved in litigation was not his debt. It was against the land he had purchased, but not against him. This statement of the contract and agreement is corroborated by expressions and declarations of the father as told by many of the witnesses, some of whom say that the .old gentlemen told them that the land belonged to French; others that it was intended for him; and one other, that French had asked him to make a deed about a year before the suit was instituted, and he said that he had made a will for that purpose, and he would have it in that *72way. Tlie circumstances impel tlie conclusion that there was a contract. The fact that the son took possession and made valuable improvements upon the land and lived in exclusive possession 'upon it for nineteen years without question from his father; that he exercised ownership over it in cutting the remainder of the timber, known to his father, the remodeling of the house and making valuable improvements thereon as well as building substantial fences and cleaning up the land, would impel the conclusion that he at least was relying upon the fact that the land was to be his by virtue of some agreement or understanding with his father. We think that plaintiff has not only established the existence of a contract but has shown what that contract was with sufficient definiteness which can be enforced by a court of equity. The relations between the father and son were cordial until recent years when the father became enfeebled and when it appears that the step-mother became somewhat estranged. The son testified that he had always helped his father work on his place, had paid him in labor much in excess of the taxes which his father had paid for him and which were charged on his father’s tax tickets, which included many other tracts of land and his personal property; that he had furnished his father money, and that the break came when his father wanted $100 from him which he proposed to give to his father if he would execute the deed which had been promised him, and it was then that the step-mother became abusive to him, and a short time afterwards his land was put on the market for sale. While the father says the $300 furnished by the son went into the land, he claims that this amount was borrowed and that he still owes it and will pay it back when he sells the land. It will be observed that no evidence of that alleged obligation was taken, and it has long since expired by limitation. Moreover, the witnesses, including the plaintiff, and the circumstances contradict this theory of a loan. It is evident that this money went into the land and that the father took the title at the request of his son'or by agreement between them. Under this evidence, the father would be a trustee holding the legal title of the land for his son, under the well established principle that where one person furnishes money for the pur-*73cbase of property and tbe title is taben by another a resulting trust springs up for tbe benefit of tbe former. Tbe interest of bim wbo pays tbe money is not a mere equity wbicb can be discharged by repayment by tbe trustee in money. It is an equitable estate in tbe land in which tbe legal title is vested in tbe trustee, and may be conveyed, transferred, devised or otherwise dealt with as property. It may be enforced against tbe trustee, bis heirs and personal representatives and all others wbo derive title from bim as volunteers or purchasers with notice, but not as against *bona, fide*purchasers for value without notice. 3 Pom. Eq. Jur. sec. 1043. Tbe father paid off tbe purchase money notes, except one-half of one of the notes paid by tbe son. Tbe father has been fully or partially repaid out of tbe son’s timber and tbe option on tbe mineral. Possibly there are other sums to wbicb each would be entitled; a proper accounting would determine these mutual demands.

We think tbe preponderance of tbe evidence warrants tbe conclusion that tbe land was purchased for tbe son, and was to be bis; and that bis father was helping bim to pay for it. Whether tbe sums paid by tbe father were to be advancements, as claimed by tbe son, is not so well established. Tbe circumstances indicate that they were in the nature of a loan and not a gift. Whether a transaction is a gift or loan is always determined by the intention of tbe donor as gathered from tbe facts attending tbe transactions. *Mahon*v. *Johnston,*7 Leigh 317. Tbe father has retained tbe title to tbe land into wbicb bis money went, a circumstance wbicb strongly repels tbe intention to make a gift. Where a parol gift is made, complete delivery is a most essential circumstance. 2 Blackstone Com. 341; *Dickeschied*v. *Bank,*28 W. Va. 340. While tbe son was given complete possession of tbe land, be bad no power to encumber or sell. Tbe evidence to establish a gift *inter vivos*must be clear and convincing of every element necessary to constitute a gift. *Brock*v. *Brock,*92 Va. 173; *Collins*v. *Lofftus,*10 Leigh 5; *Brown*v. *Handley,*7 Leigh 119. Tbe father .did not relinquish complete dominion over tbe thing alleged to have been given or advanced. Tbe evidence and circumstances do not measure up to tbe full requirement of *74the law to prove a gift of the money from the father to the son. On the other hand, the’ evidence and circumstances do show that the land was purchased by them for the son, and that the legal title is held for the latter. Perry on Trusts, Vol. 1, sec. 133, says: “if one should advance the purchase money and take the title to himself, but should do this wholly upon the account and credit of the other, he would hold the estate upon a resulting trust for the other.”

The decree denies to plaintiff any interest in the land. The purchase money which he put into the land is lost to him under the decree, for, as a debt it has long since been barred by time. His improvements and labor are also denied. The expressed intention of the father is to disinherit him, because of refusal to extend him a loan, or because of some domestic trouble which the son has experienced. The pleadings and evidence warrant a decree extracting from the father the legal title to the land and vesting it in the son; and this relief should have been granted. Inasmuch as the evidence does not justify a finding that the father intended the sums paid by him on the purchase were intended as gifts or advancements, the relation of debtor and creditor exists between the father and son and there should be an accounting between them to determine their mutual claims.

The decree will be reversed, the bill reinstated and the cause remanded.

*Decree reversed; bill reinstated; remanded.*