The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1876-10-05
DECISIONS OF SUPREME COURT or AP4
PEALS

Court Of Appeals during its recent term in
this city. 6E
Miller ct ais Us. Blose's En-. ct al.-This
was a bill by a Judgment creditor seeking to
charge the real estate OF Jacob Miller, decd,
in the hands of his heirs, TO the payment OF
his debts and for Il settlement of his admin
istration accounts, &c.
The heirs were VIM. H. Miller and Mary,
the wife of Jno. C. Walker. Jno. C. Walker
and VIM. II. Miller, the administrators, an
swered that they had settled up the personal
estate, which had been insufficient to pay the
debts, they having sold it in sG3 for Confed-
crate currency, which creditors in many in
| stances had refused to receivc.
They admit their interstate lefta tract Of 1872
acres of land, but affirm that its rents and
profits would pay his debts in five years.
This was the only issue made by the orig
inal bill and answers thereto.
In September. 1870, there was q decree di-
rccting all account OF the outstanding iabili-
ties of Miller and their priortIes; u settlement
of the administration ACCOUNTS and an ascer-
| tainmcut of the real and personal assets of
| his estate.
The account was taken and report return
ed with various exceptions; one, rs to the
real estate, upon the ground that Miller was
| the cwner Of only one half of said tract, ill
ing with said exception u deed from S. ami
wife conveying said land to Miller and one
Kite, jointly, dated August, 1861.
In May, 1871, the Court appointed. commits
sioncrs to allot one half of said land to the
heirs of Sarah Miller, (wlo was the daughter
of Kite and the wife OF jacob, Miller and the
other to Milel's creditors.
| Before the action of its commissioners had
been confirmed, the court rcmanded the cause
| to rules, with leave to complainant to file an
amended and supplemental bill, which was
filed at December rules, 1871.
This bill alleges that in 1913, VIM. Kites
heirs made partition of all his real estate and
executed various deeds 70 carry it out and
exhibits among them deed from all the
heirs of VIM. Kite. except Mrs. Miller, con-
veying the 732 acre tract to Jacob Miller. in
| fee, in consideration Of $1,000.
1t charges that the whole, and not one
half is subject to his debts, and that its rents
and profits for five years will not pay the
debts. The administrators and heirs an
swered this bill. and, although in their an
swer to the original bill they had admitted
| the whole tract to be Miler's property. and
in their amended answer to same that one
half was owned by him, in fee. they now de-
| ny that he was ever seized,in fee, of any part
of it or paid any part of the purchase money
therefor. is5St sl
They aver that. the greater part of the
purchase money was paid by Kite in his life
time. and the residue by his administrator;
that the equitable title never vested in said
Miller and that the legal title was a trust
for the benefit of his wife and children.
| They insist that as Miller paid no part of
the purchase money, was part of Kites real
estate, and so treated in the partition.
They admit the execution of the deeds,
| filed will the amended bill but insist he held
subject to this trust aud that the land was
not liable for his debts.
| Dispositions were taken to support the an
swer, and, in October, 1873, the Court held
that the children Of Sarah Miller were enti-
| tied, by descent from their mother, to LA
OF the said tract and that Miller died, seized
| in fee of the residue 1914, which was liable
| to be sold for his debts and that there was
no resulting trust, and directed commission
ers to assign LA to Mrs. Miller's5heirs, and
to Jacob Miller's heirs 1874, subject to be
sold to meet his debts. From this decree the
| appeal was taken. ~7a nd II
The Court holds there was no error. That
Miller and his heirs had been in possession
of this tract for forty gears and uoUdrds ); /
possession was held under two deeds recor-
ded in 1881 and 1913. BY both the legal IL
tie is conveyed to Jacob Miller; there is no
trust on their face in favor of any one they
are absolute, conveying the property with
out condition or reservation.
The deed of 1881 from S. and wife conveys
the land to J. Miller and VIM. Kite jointly,
in consideration Of 81 .ss4, then.in hand paid
| by said X. and NJ. BY Tie decd of 1913, the
heirs of VIM. Kite, for the consideration of
| SIS, 900. to them in hand paid by said Miller,
conveyed tile land to the ''only proper use
&c., Of said Miller, his heirs &C. |
After the lapse of nearly half 4 century, |
holding under deeds absolute on their face
informing those who choose to deal with him
that the property was his absolutely, it is de-
MED he was merely trustee for his |
wife and children, and his creditors could
not subject it,. The evidence to establish such
claim in the face Of such deeds must be
clear and leave no doubt Of the character of
the transaction, citing 18th Leigh 57G-5S1.
The basis OF the claim is that Kite and his
administrators paid all the purchase money.
A resulting trust must arise at the time of
| the execution of the conveyance. Payment |
or advance o. the purchase money before or
at time Of purchase is Indispensable. A
| subsequent payment will not, by relation, at
tach q trust to the original purchase, for the
trust arises out of the circumstances, that the
money of the real, and not the nominal pur-
chaser, formed, at the time, the consideration
of the purchase and becomes converted into
| land. Lead cases sn equity p. III &c. |
Johns, Oh. r 4O5 to 414.
The ground Of a resulting trust is that pay
ment of the purchase money, is an equity TO
have the land. The mere fact of payment will
not always be sufficient to raise q prcsump-
ton of u trust. But evidence OF intention
must often enter in, whether that payment
is such in equity under the circumstances,
e.g. payment by father and land conyey- /
ed to 4 son or nephew or son-in- law Or any
one 70 whom ne stood IN loco PARENTS.
So that il Kite had paid all the purchase
money and the whole tract had been con-
veyed to Miller, his son i'll law, this would
not of itself have created a trust, but would
have been regarded only rs gift. But there
was no proof to show either the payment of
the whole purchase money or that it was made
under circumstances which would create a
a resulting trust at the time of the execution
of the conveyance. Tie only evidence of
how the purchase money was paid {le hors
the deed,) isaa receipt for the balance of 5000
paid by the administrator Of Kite on the 5000
bond endorsed on its back. No evidence at
all to contradict the deed as to the payment
ofany of the residue. stf
OHc WltAcsS LII Il uepOSilloll taken more
than forty years after the transaction
says that Inc did not think that from AIiller's
pecuniary condition, he could have paid for
any considerable real estate. though he made
considerable money, and he knew OF his
borrowing money from witness father.
That he was a punctual man and competent
to pay such debts Us he made and estimated
his property at 500, 900. -
Upon such eyldence as this the Court could
not assume in the face Of the deed and with
out proof that X. paid all the purchase mon
ey. As to the share decrecd by the court below
to the children of Mrs. Miller, viz: LA.
Court held there was no error because as one
Of seven heirs OF Kite, she was only entitled
to one-seventh of his real estate; that by uni
ting with her husband in the deeds to other
heirs she had Invested herself of her interest
in these tracts and as by deed of S. and wife
To Kite and Miller X ties share would only