Believing that a restatement of how the legal questions submitted for decision arose in the lower court will clarify my view of the case, I shall first state my understanding of how the issues were raised, beginning with the allegations of the bill of complaint.
This proceeding was instituted by Irene Cales for the purpose of having partitioned among the eight heirs at law of R. H. Ford two contiguous tracts of land of which he died seized and possessed, one containing one hundred and fifty-four acres and the other forty-four acres and sixty-five poles, both having been conveyed to R. H. Ford by Mark Addison Ford and wife by deed dated the third day of August, 1939, and recorded in the office of the Clerk of the County Court of Summers County in Deed Book 71 at page 349, and for the purpose of having assigned to Dora Ford, widow of R. H. Ford, her vested estate of dower in the land described in the bill of complaint.
Dora Ford, widow, and John Ford and Elmer Ford, both sons of decedent, filed their joint and several answers in which they admit practically all of the allegations of the bill of complaint, but go further and allege in substance that by deed dated July 21, 1939, R. H. Ford conveyed the two tracts of land described in the bill to Mark Addison Ford, in which conveyance the right to live upon the land conveyed was reserved, and a right to support and maintenance for life was erected in favor of the grantors, R. H. Ford and Dora Ford, his wife, and also in favor of Elmer Ford and John Ford, two sons. Respondents aver that their right to support and maintenance out of the tracts of land described in the bill has never been extinguished nor disposed of by them and that in addition they have the right to live thereon. They, therefore, resist partition, contending that their right to support and maintenance is chargeable upon the entire boundary operated as a whole, and that their right to live upon the *Page 174 boundary as a whole of necessity involves and carries with it the right of possession.
Thereafter Irene Cales filed a special replication, the substance of which is to allege that the two deeds dated the 21st day of July, 1939, between R. H. Ford and wife, parties of the first part, Mark Addison Ford, party of the second part, and Elmer Ford and John Ford, parties of the third part, are now void and of no effect because based upon no consideration, and because they attempt to create an estate not recognized at law and are entirely too uncertain to be so recognized. It is to be noted that this replication of necessity attacks the validity of R. H. Ford's title to the land of which Irene Cales in her bill of complaint alleges he died seized and possessed, the bill containing allegations to the effect that both tracts sought to be partitioned were conveyed to decedent by Mark Addison Ford. If Mark Addison Ford had no title, as the replication charges, he could not convey title to decedent, as the bill of complaint alleges.
On the twenty-third day of September, 1941, an agreed order was entered submitting the cause for decision upon the bill of complaint, the answer of Dora Ford, John Ford and Elmer Ford seeking affirmative relief, and the special replication of Irene Cales.
On May 12, 1942, a final decree was entered in effect adjudging that the rights and interests of the defendants Dora Ford, John Ford and Elmer Ford as set up in the deed dated the twenty-first day of July, 1939, between R. H. Ford and Dora Ford, his wife, parties of the first part, Mark Addison Ford, party of the second part, and Elmer and John Ford, parties of the third part, were enforceable and "that the said deed vests a life estate in said Dora Ford, and after said life estate, a maintenance and support and use in a tract of one hundred and fifty-four acres, and a tract of forty-four acres and sixty-five poles for and during the natural life of said Elmer and John Ford, together with their right to live thereon and be supported off of the same for and during their natural *Page 175 lives, and that said right shall be protected in the settlement of the estate of said R. H. Ford, deceased." The decree further holds that after the expiration of the life estate in Dora, John and Elmer Ford the remainder vests in fee in the heirs at law of R. H. Ford. The clerk is ordered to "omit" the case from the docket.
This is the decree from which this appeal was granted and to which the assignments of error relate. The assignments being four in number read as follows: "First: In denying the plaintiff the relief prayed for; second: In holding that the deeds mentioned in the answer were valid; third: In holding that the deeds were testamentary papers and valid; fourth: In refusing to partition and sell said real estate."
It seems plain to my mind that all but the first assignment may be ignored: the second, for the reason that the bill of complaint bases the decedent's title of the land the plaintiff seeks to partition upon a deed from Mark Addison Ford dated the third day of August, 1939, and the deeds attacked by the plaintiff in her replication, and charged to be void are the two deeds dated the twenty-first day of July, 1939, conveying to Mark Addison Ford, subject to the charge for support and maintenance, the identical tracts of one hundred and fifty-four acres and forty-four acres and sixty-five poles that the bill charges he later conveyed to R. H. Ford. Consequently, if the deeds from R. H. Ford by which Mark Addison Ford acquired title are cancelled and set aside, then the later deed from Mark Addison Ford to R. H. Ford, the title upon which the bill of complaint bases the relief prayed for, also fails. The only way by which this contradictory position can be avoided is to suppose that Mark Addison Ford claimed the boundaries in dispute under more than one source of title. This we believe is an hypothetical assumption not warranted by the state of this record. The third assignment is entirely without support and there is no showing that the trial chancellor either expressly, or impliedly, held that the deeds from R. H. Ford to *Page 176 Mark Addison Ford were testamentary in their nature. Since they contained provisions charging the land granted with the support and maintenance during his lifetime of R. H. Ford, and for that reason the purpose to put them into effect upon delivery appears, it is difficult to see how it could be contended that their nature was testamentary. Recollecting that this is a proceeding to partition real estate, it is hard to perceive how the fourth assignment of error might be considered because it complains that it was not decreed "to partition and sell" the land in question. Reading the fourth assignment in the disjunctive instead of the conjunctive, discloses that it is merely a repetition of the first assignment, therefore, I so consider it.
Disregarding all of what might be considered technical inconsistencies and, for the sake of expediency, dealing with the plaintiff's right to a decree either partitioning the land described in the bill of complaint or ordering it sold and the proceeds distributed among the lawful claimants, I am of the opinion that the answer of Dora Ford, John Ford and Elmer Ford defeats that right as shown by the allegations of the bill of complaint. A proceeding in chancery to partition land is based upon the right to possession and though the proceeding has been expanded by Code, 37-4-1, to include controversies concerning title, this Court has construed the statute as confining its terms of enlargement to conflicting claims under the title upon which the right to partition is based. See the discussions inJones v. Comer, 123 W. Va. 129, 137, 13 S.E.2d 578. This case as submitted to the trial chancellor rests upon a controversy concerning the immediate right to possession of the land described in the bill of complaint. I believe that under the allegations of the answer just referred to the right to immediate possession rests in Dora Ford, John Ford and Elmer Ford for the following reasons.
By the two deeds dated July 21, 1939, R. H. Ford and Dora Ford, his wife, conveyed the property to Mark *Page 177 Addison Ford and in each deed charged the property with the support and maintenance, together with the right to live thereon, of himself and wife and Elmer Ford and John Ford, two of their sons. R. H. Ford is now dead and these two deeds, according to the record showing at the time the cause was submitted to the trial chancellor for decision, are the only expression of his purpose, intention and wish concerning the final disposition of his land. His grantee, Mark Addison Ford, is charged with knowledge of the contents of the deeds to him which took effect as valid and binding contracts at the moment the tendered delivery was voluntarily accepted by the grantee, the beneficiaries being R. H. Ford, Dora Ford, John Ford and Elmer Ford all of whom acquired a contractual right.
The grantee can decline delivery of a deed. Not doing so, he is bound. The contention that there was no valid consideration to sustain the two conveyances is easily disposed of by simply calling attention to the fact that Mark Addison Ford in accepting the deed became bound to the extent that caused him quickly to reconvey, apparently under the impression that returning the land would work complete relief. Of course, there being a consideration between the grantor and the grantee, it is unnecessary to show that a consideration moved from each of the beneficiaries under the deeds' provisions.
Overlooking the somewhat glaring inconsistency in the plaintiff's praying in her replication that these two deeds be cancelled and annulled, while in her bill of complaint she seeks partition under a paper title in the chain of which they both appear, I believe it can be asserted with confidence that the reconveyance did not have the effect of a cancellation. I do not agree with the statement contained in the majority opinion that what a court may do in the cancellation of a deed, the parties may do voluntarily. See Ferguson v. Bond, 39 W. Va. 561,20 S.E. 591; Hensley v. Swann, 93 W. Va. 49, 115 S.E. 864. Of course there is no question that the interested parties suijuris *Page 178 can overcome and by their own act counteract the effect of any binding understanding. But it lies within the power of a court of chancery alone to completely obliterate as an absolute nullity a deed or other binding contract. However, even under the viewpoint of the majority here all the parties in interest did not act. Only R. H. Ford accepted a reconveyance from Mark Addison Ford, leaving the interests of Dora, John and Elmer Ford undisturbed. To assert that they had no interests to my mind is plainly not maintainable. We then come to consider the nature of that interest and although that question in general is quite confused by the decided cases in this country, (see 76 A.L.R. 749) in my opinion it is fairly clearly stated and settled in West Virginia.
In the case of Johnson v. Billups, 23 W. Va. 685, this Court had under consideration a deed conveying one hundred and twenty-five acres of land "subject, however, to half the support of Hiram W. Johnson and his wife during their natural lives, and which is to be attached to the land as a lien upon the land", Hiram W. Johnson and wife not being parties to the deed in which the quoted provision appeared. Samuel L. Billups was the grantee and concerning the effect of the charge upon the land this Court, through Judge Green, had this to say: "This deed creates an executed trust; and by its terms Samuel L. Billups as trustee was to hold this land upon trust to furnish out of its proceeds half the support of Hiram W. Johnson and his wife during their natural lives." Green then proceeds to discuss the question of the cestui que trust not being parties to the instrument by which the trust is erected and the indefiniteness of a provision for support and maintenance, both being questioned as here.
The Billups case is to be clearly distinguished from Carteret al. v. Reserve Gas Company et al., 84 W. Va. 741,100 S.E. 738, in which a similar provision was held to create a condition subsequent with the right to reenter for non-performance necessarily vested in the grantor, a party to the deed, a reconveyance from the grantee being *Page 179 held to constitute a rescission. See also White v. Bailey,65 W. Va. 573, 64 S.E. 1019, 23 L.R.A. (N.S.) 232, and the dissent of Judge Brannon. Here the beneficiaries are not parties, could retain no right of reentry and consequently no condition subsequent could be enforced by them.
Viewing the conveyances now before us as creating an executed trust and Dora Ford, John Ford and Elmer Ford ascestuis, or beneficiaries, the question then arises as to the effect of the trust property being reconveyed to the trustor or creator of the trust. For a rather full discussion of this question see the case of Ewing v. Jones, 130 Ind. 247,29 N.E. 1057, 15 L.R.A. 75 and the footnotes appended to the last reference and for a general text treatment see 26 Rawle C. L. 1207 and the cases cited in the footnote. It will be found by reference to the above citations that the overwhelming weight of authority is to the effect that, without the consent of the beneficiaries, the equitable interests created by a trust are irrevocable, unless the power of revocation has been retained by the grantor in the trust instrument. By doing so if the party creating the trust chooses he can control the execution and life of the trust arbitrarily. See the annotations in 91 A.L.R. 104.
In the light of the foregoing it is my opinion that the instruments now before the Court under our West Virginia rule created an executed trust that a reconveyance to the trustor by the trustee, or any act not participated in by the beneficiaries would not set aside nor revoke, and that the final decree of the trial chancellor subject to a correction to be dealt with hereafter should be affirmed. There can be no question but that the supervision of trusts by courts of chancery makes them quickly responsive instrumentalities.
We come now to consider the effect of the order entered in this cause on the twenty-fifth day of May, 1942, thirteen days after the entry of the final decree. That order reads as follows: *Page 180
"This 25th, day of May, 1942, came Irene Cales, in person and by her counsel, J. Raymond Gordon, as well as the defendants herein, in person, and by their counsel; and thereupon the plaintiff moves the court to set aside the decree entered herein on the 12th day of May, 1940; and showed to the Court that the case was improperly developed, and that important phases of it were not called to the Court's attention; and the Court, after hearing the argument of Plaintiff's attorney, and the defendants and considering the matters of law arising on said motion, the Court overruled the motion to set aside said decree. Whereupon the plaintiff tendered her amended bill of complaint and asked leave to file same. The Court having seen and inspected the same, refused to file the same, but ordered the same lodged with the papers herein, and is marked for identification 'Amended bill of Complaint'."
It will be noted that it includes two separate and distinct steps that the plaintiff desired to have taken, first, to have the final decree set aside because "the case was improperly developed, and that important phases of it were not called to the Court's attention;" and second, upon the Court's overruling the motion to set aside the decree, plaintiff tendered and asked leave to file her amended bill of complaint, which was refused. It will be observed that the motion to set aside the final decree did not include as an assigned reason the fact that the decree mentions but one deed made by R. H. Ford and wife to Mark Addison Ford, although it refers to both tracts that were conveyed by separate deeds between the same parties. The plaintiff does not attempt to proceed by bill of review.
As to the motion to set aside the final decree the trial chancellor of course is clothed with a very broad discretion, and since the order states its ground in general terms only, specifying nothing, I think no lack of discretion is shown. That fact, coupled with the fact that the cause was finally submitted September 23, 1941, and the final *Page 181 decree not entered until May 12, 1942, forces the conclusion that it was adequately considered. I am of the opinion that there was no error in the trial chancellor's refusal.
Conceding that there might be error involved in the rejection of an amended bill of complaint after final decree and looking upon the two conveyances in question from the broad general attitude of the majority opinion, I still perceive nothing in the amended bill warranting the conclusion that its consideration would result in more substantial equity to the parties concerned. It introduces a third tract of one hundred and forty acres and alleges that the three conveyances were made pursuant to an agreement, evidently oral, between the grantor and the grantee providing for the support and maintenance of R. H. Ford and wife; that R. H. Ford being old and of feeble mind soon learned that the grantee did not intend to support and maintain him and his wife and on the third day of August, 1939, twelve days after the conveyances were made in consideration of support and maintenance, he secured a reconveyance from Mark Addison Ford that he, R. H. Ford, believed to include the three tracts that he had conveyed to Mark Addison Ford. The amended bill of complaint goes on and alleges that R. H. Ford believed the agreement for his support and maintenance had been entirely invalidated by the reconveyance and circumstances tending to show that Mark Addison Ford received advances from his father and nevertheless allowed the funeral expenses to be paid by his father's estate. So far as any interest of R. H. Ford or his right to support and maintenance is concerned, those questions are now moot. R. H. Ford is dead. It may be conceded that as to his individual rights his acceptance of the conveyance of two tracts from Mark Addison Ford constituted a rescission so far as the land conveyed was concerned. He retained whatever interest he had in the third tract of one hundred and forty acres, title to which did not revest in him. As to cancelling the deeds signed *Page 182 and acknowledged by R. H. Ford, in which the right to support and maintenance was provided, on the theory that ignoring them carries out the purpose of R. H. Ford, the suggestion approaches a contradiction in terms. I see no reason to permit the plaintiff by amended bill to rest her cause upon equities militating to her advantage which the trial chancellor has already held do not exist. An affirmance is not precluded by the discussion in the majority opinion of a reversal resulting in arriving at and carrying out the intention of R. H. Ford. R. H. Ford cannot now speak for himself. He did that when he executed and delivered the three deeds providing for the support and maintenance of himself, Dora Ford, John Ford and Elmer Ford and making that support a first charge upon his property, to have preference over the division of that property among his heirs at law. His intention should be discovered from his deeds: not from prior or contemporaneous oral understandings. The plaintiff's attitude was in the beginning, and still is, that the land should be equally divided among his eight heirs at law, free from the charge upon it for the support and maintenance of his widow and two sons. I do not believe that that conclusion is based upon sound reasoning nor do I believe that it accords with the only clearly expressed intention of R. H. Ford that is, or could be, now available.
While I am of opinion that the decree of May 12, 1942, should not be affirmed due to an obvious mistake appearing upon its face, I do not think it should be reversed upon any of the assigned grounds of error. I would therefore remand the cause to the Circuit Court of Summers County with direction to correct the decree so that its finding will include both deeds executed on the 21st day of July, 1939, by R. H. Ford and wife, and will correctly decide the estates conveyed by each and to whom. There being no right to immediate possession in the plaintiff, the cause should then be dropped from the docket at her cost. *Page 183