dissenting. I respectfully dissent from the majority opinion herein. The case is presented to us on Motions for Summary Judgment. Thus the facts are undisputed. It seems to me that the majority opinion completely overlooks the conclusive evidentiary effect of the passage of time in this case. I can agree with the majority opinion, save and except the language therein where it is stated that “when Gus re-purchased the land from McKissack, soon after the foreclosure sale, his purchase amounted under familiar principles of law to a redemption in favor of his sisters and their heirs.” I readily agree that this is established law under most factual situations. It is commonplace in landlord and tenant cases (such as the Slinkard case, supra), and tax redemption cases wherein the close, sensitive, fiduciary relationship is shown. In both the Slinkard and Lewis cases, supra, relied upon by the majority, a party to the relationship promptly protested to violation of it, and clearly established a fiduciary, sensitive, trust relationship. Having so established the relationship, then the violation thereof was clearly a redemption. The Lewis case, supra, was decided upon the theory of a constructive trust, as well as upon the after-acquired title statute. It refers to “the necessary element of that unconscientious conduct which equity calls constructive fraud.” It is this element that appears to me to be completely missing from the facts here involved.
Here the parties to the alleged relationship, over a span of 39 years, have made no protest whatsoever of any so-called “unconscientious conduct.” It seems to me that the majority opinion overlooks this, simply holding that upon establishing an assumption of the indebtedness, a default, and a repurchase, irrespective of all other facts, as a matter of law the repurchase is an equitable redemption. I cannot agree because of the factual situation in this record. The conduct of the parties themselves, followed for 57 years, seems to me to establish a complete absence of any unconscientious conduct.
I concur that the consideration (but not necessarily the sole consideration) for the 1920 deed was an assumption by Gus of the McKissack indebtedness. I do not agree, however, that this fact supports the indispensable finding that a family agreement was necessarily made, between Gus on the one hand and Maude, Carrie and Omie on the other, which created a fiduciary, a sensitive, a trust relationship which converted the 1928 deed from McKissack to Gus into an equitable redemption. Appellants’ position is squarely based upon such a finding. The majority assumes that Gus agreed to pay the indebtedness in order to preserve the property for the benefit of Carrie’s and Omie’s heirs. Absent such a relationship, the doctrine of equitable, redemption has no application.
The complaint filed in the old foreclosure proceedings indicates that other factors were involved. It states that an agreement was made with Gus, “in writing,” to assume this obligation. The 1920 deed makes no mention of any obligation to assume the indebtedness. It is the only “writing” between those parties. Thus it seems fair to assume that the “in writing” obligation was with McKissack, and the decree renders personal judgment in favor of McKissack against Gus. The foreclosure decree recites: “All defendants herein deeded their interest in the aforesaid land to Gus Lecroy, one of the defendants, for the consideration, among other things, that he assume the payment of the aforesaid note, which by agreement of all parties to this suit he did assume. ”
Note the language, “by agreement of all parties.” This, of course, includes McKissack. The indebtedness was due in 1919, and the deed to Gus was dated in 1920. Thus, the indebtedness was then delinquent, and McKissack had the right to immediately foreclose. Certainly McKissack had no interest in obligating Gus to assume the obligation in order to protect the title for the benefit of Carrie’s and Omie’s heirs. It is much more logical to assume that McKissack imposed the assumption agreement for his own betterment and that the Lecroys felt required to agree in order to avoid immediate foreclosure. This would explain why, when the inevitable foreclosure did occur, with Maude, Omie and Carrie parties thereto, that Omie and Carrie made no protest and reflected no outrage for the remainder of their lives because of Gus ’ reacquisition of the property ten months later.
Maude, Carrie and Omie were all parties to the foreclosure proceedings. They filed no answer and introduced no proof whatsoever, yet McKissack was fully aware of the assumption by Gus. It is most logical, therefore, to me, to find that Gus’ agreement to assume was made to McKissack to avoid the immediate loss of the land by foreclosure. The indebtedness secured by the Deed of Trust was, as aforesaid, due January 10, 1919. The Deed of Trust was not foreclosed until 1928.
From this record I cannot read into it any ruse or device exercised by Gus to permit the lands to be foreclosed to defeat the limitations in the deed. I think it is clearly and irrefutably established by the acts and conduct of the parties to the so-called family agreement that there was no understanding that Gus would assume the indebtedness for the purpose of protecting the land for the benefit of Omie’s and Carrie’s heirs. The so-called equitable redemption — the McKissack deed to Gus — occurred in 1928. The deed was absolute on its face, was dated August 22, 1929, and recorded August 26, 1929. Thereafter, as is alleged in the plaintiffs’ complaint, “Gus Lecroy and Mattie Lecroy executed and delivered to these defendants (16 in number), or their predecessors in title (the record does not reflect how many), deeds purporting to convey some interest in the above described land.” Various mortgages or deeds of trust have been executed upon the property, purporting to convey and encumber an absolute interest therein. The holders of three current mortgages are parties defendant to this action. It also appears that there are outstanding Oil and Gas Leases, since the prayer of the complaint seeks a decree impounding the proceeds of oil, gas and other minerals produced from these lands. In short, Gus Lecroy exercised absolute, overt, full and complete ownership of these lands from 1929 until the date of his death in 1972. Moreover, his widow still lives, and until 1976 no protest was made of her absolute ownership. During all of these years the title to this land was vested in Gus and Mattie, as husband and wife. None were heard to protest that, on the event of Gus’ death prior to Mattie’s death, she would become the sole record owner of the property.
Omie died July 4, 1945. Thus, for 16 years she observed her brother and his wife exercising such acts of ownership, and she made no protest. Carrie died July 1, 1967. She, likewise, observed this “unconscientious conduct” for 38 years, without protest. I am not unmindful of the fact that Carrie and Omie had conveyed their interest in these lands to Gus and that the ultimate owners thereof had no present right to bring a possessory action. Carrie and Omie did, however, have the right to institute a proceeding to declare and establish this to be an equitable redemption, a violation of the trust agreement to which they allegedly were parties. Yet they did nothing. To me, this is most persuasive, if not conclusive, evidence of the fact that they did not consider Gus’ reacquisition of the property, following the proceedings, a violation of any family agreement. Both Omie and Carrie, as aforesaid, were parties to the foreclosure and they are charged with knowledge that it purported to completely destroy any interest which they, their heirs or assigns, might have in these properties. They are equally charged with knowledge that Gus reacquired the property free and clear of any “family” obligation. His deed, on its face, purported to be in direct and specific violation of the agreement, if such agreement existed. Carrie and Omie observed the creation of interests in this property in favor of innumerable third parties (16 of whom are presently owners and defendants herein), which interests were directly and diametrically opposed to those of Omie’s and Carrie’s “heirs.” Yet they remained silent. To me, this silence speaks most eloquently in establishing that there was no family agreement. It seems quite obvious to me that such agreement was conceived and found its being by the discovery of oil on the property in 1976. In the absence of such discovery, the course of conduct previously pursued by all of the parties would have continued indefinitely, everyone being quite content with Gus’ and Mattie’s absolute ownership of the property.
I would affirm the Chancellor’s denial of the plaintiffs’ Motion for Summary Judgment and his action in granting the defendants’ Motion for Summary Judgment, agreeing with him that the record fails to establish any family agreement as asserted by the plaintiffs.
I am authorized to state that Justices Byrd and Hickman concur in this dissent.