144, 23 S. E. 32 (Syl., point 4). Cooey v. Porter, 22 W. Va. 120 (Syl., point 4): "It is the intention of the tenant or parcener in possession to hold the common property in severalty, and exclusively as his own, with notice or knowledge to his co-tenants of such intention, that constitutes the disseisin." It is insisted by appellants that the conveyances by deed of trust of the whole of the tract by W. A. Dingess to James A. Nighbert, and recording of the same, was an act of ouster and adverse possession. "If one co-tenant executes and delivers a deed of the entire estate, and the grantee causes the deed to be recorded, and enters into possession claiming title to the entirety, and openly exercises acts of ownership, this is a disseisin of the co-tenants." Busw. Lim. § 300; Parker v. Proprietors, 3 Metc. (Mass.) 91. In the case at bar the possession was not changed by the conveyance, and the purchaser at the sale under the trust deed could not take possession until the trustee put him in possession after the sale; and it does not appear from the record that possession was even taken by the purchaser under the sale made by the trustee, and the deed is averred by the purchaser to be dated April 25, 1892, some time after the institution of this suit. A conveyance alone, without possession taken under it, cannot amount to an ouster. The same remark is applicable to a mortgage of the whole. If such mortgage can have any relevancy in determining whether the mortgagor had been guilty of an ouster, it must be in connection with other circumstances tending to show an intent to hold the property adversely. Freem. Co-Ten. 226; Hannon v. Hannah, 9 Grat. 146. For the reasons herein stated, the decree of the circuit court is affirmed.

1. A court of equity will not enforce a parol contract for the sale of land unless the terms thereof are made certain and definite, and in all respects placed beyond the bounds of mere conjecture by full and clear proof.

2. A plaintiff seeking specific performance of such parol contract must rely upon his own acts of part performance, and not on the repudiated acts of the defendants, or the person under whom the defendants claim.

3. Possession, to be sufficient to sustain a suit for specific performance of a parol contract, must be actual, open, notorious, exclusive, and continuous under the delivery of the plaintiff. Constructive possession of vacant town lots is not sufficient. Such possession remains with the legal title.

4. Persons who are directors and stockholders of a corporation are incompetent to testify against the administrator and heirs at law of a deceased person in favor of such corporation as to any communication or transaction had with such deceased person in their official capacity as such directors, unless such administra

tor and heirs at law are examined as to such communication or transaction in their own behalf, or the testimony of such deceased person touching the same is given in evidence.

(Syllabus by the Court.)

Appeal from circuit court, Cabell county; Thomas H. Harvey, Judge.

Bill by the Huntington & Kenova Land Development Company against John Thornburg and others. Decree for defendants, and plaintiff appeals. Affirmed.

Vinson & Thompson, for appellant. Rankin Wiley and T. W. Peyton, for appellees.

DENT, P. The Huntington & Kenova Land Development Company filed its bill and amended bill against the administrators and heirs of J. N. Thornburg, deceased, in the circuit court of Cabell county, seeking to enforce specific performance of an alleged verbal contract partly performed. The court, at the hearing of the case, refused the relief sought; hence this appeal. The allegation of the bill in relation to the matter is as follows: "That on the 1st day of August, 1891, it was seised and possessed by a good fee-simple title of the following described lots or parcels of land, situate in Central City, Cabell county, West Virginia, and designated upon the map of said Central City, recorded in the office of the clerk of the county court of Cabell county, West Virginia, to wit: Lots Nos. 4, 5, 6, 7, in block No. 50; lots Nos. 15, 17, 18, in block No. 59; lots Nos. 6, 7, 8, in block No. 49; lot No. 21, in block No. 22; lot No. 3, in block No. 73; lot No. 23, in block No. 113; lot No. 17, in block No. 85; and also the following described real estate, situate in Kellogg, Wayne county, West Virginia, and designated on the map of said Kellogg, filed in the office of the clerk of the county court of said Wayne county, to wit: Lot No. 1, in block No. 61; lot No. 21, in block No. 15; lot No. 21, in block No. 97; lot No. 5, in block No. 61; lot No. 27, in block No. 105; lot No. 29, in block No.. 88. And, being so seised and possessed of said real estate, plaintiff bargained and sold the same to T. H. B. Thornburg (then in full life) for the sum of twenty-seven hundred dollars ($2,700.00) by verbal contract. That the said Thornburg, in his lifetime, took possession of said lots, and each of them, and paid the taxes thereon up to the time of his death. That he made payments upon said purchase of said lots to the plaintiff as follows, to wit, on November 2, 1891, $600; on July 12, 1893, $600; and that this was all that was ever paid by the said Thornburg in his lifetime, or by his administrator since his death, or by any of his heirs, or by any one else for him or them; and that there is now due and unpaid to the plaintiff upon the purchase money of said lots the sum of one thousand eight hundred and forty-six dollars and fifty cents. with its interest. Plaintiff is advised, and therefore alleges, that it has a lien upon the lots of land aforesaid for the unpaid purchase money due thereon, and that it has a right to

have the said lots of land sold in satisfaction of its lien. The plaintiff here tenders a deed in compliance with said contract of sale; that plaintiff is entitled to a specific performance of said contract, or a sale of said land. It further alleges that the purchase of all said lots was made at the same time, and is one entire and complete transaction." The allegation of the amended bill is as follows: "Plaintiff further says: That on the 1st day of August, 1891, it was seised and possessed of a good fee-simple title of the following described lots or parcels of land, situate in Central City, Cabell county, West Virginia, and designated on the map of said Central City, recorded in the office of the clerk of the county court of Cabell county, West Virginia, to wit: Lots Nos. 4, 5, 6, and 7, in block 50; lots Nos. 16, 17, and 18, in block 59; lots Nos. 6, 7, and 8, in block 49,-in Central City, Cabell county, West Virginia; and, being so seised and possessed of said real estate, the said T. H. B. Thornburg, then in full life, purchased said lots from this plaintiff, agreeing to pay therefor the price of $300 per lot, less 10 per cent., making, net, $2,700. This agreement was by parol at the time it was entered into, and afterwards it was ratified and approved by a written memorandum made by the said T. H. B. Thornburg, which is filed herewith as a part of this bill, marked 'Exhibit No. 2.' That the said Thornburg, in his lifetime, took possession of the said lots, and each of them, and paid the taxes thereon up to the time of his death. That he made the payments on the purchase of said lots to the plaintiff as follows: On November 2, 1891, $600; July 12, 1893, $600; and that these were all the payments that were ever made by the said Thornburg in his lifetime, or by his administrator since his death, or by any of his heirs, or by any one else for him or them; and that there is now due to the plaintiff upon the said purchase money of the said lots the sum of $1,846.50, with its interest." The allegation of the answer to the bill is as follows: "These respondents say it is not true, as alleged by plaintiff, that it, the said plaintiff, bargained and sold the said lots in Central City and Kellogg, as set forth in plaintiff's bill, to T. H. B. Thornburg in his lifetime, for the sum of $2,700, by verbal contract. They expressly deny that said T. H. B. Thornburg, in his lifetime, took possession of said lots, and each of them, and paid the taxes thereon up to the time of his death. These respondents say that the said plaintiff issued stock of its company, known as 'allotment stock,' at the par value of $100 per share, whereby it agreed with the purchasers of said allotment stock to convey by good and sufficient deed of general warranty, free from any and all incumbrances whatever, one lot of land as laid off by said company upon the plats of said Central City and Kellogg, as aforesaid, for each and every two shares of such allotment stock purchased by any and all persons; and these respondents now allege and charge that

their intestate, T. H. B. Thornburg, possessed twenty (20) shares of the said allotment stock issued by the plaintiff, and paid for the same in full, whereby he became entitled to ten (10) lots, which were assigned to him, and for which, although fully paid for, he did not receive a deed in his lifetime, nor has any deed been made for the same to his heirs at law since his death. These respondents further say that in the year 1891, T. H. B. Thornburg, then in life, made a verbal contract for the purchase of ten (10) lots of land in the town of Central City, which were at the time of this contract selected by him, and the price thereof fixed at $2,400, $1,200 of which was to be paid in cash, and the other $1,200 to be paid in allotment stock, which had theretofore been issued by the plaintiff, and $20,000 of which had been subscribed and paid for by the said T. H. B. Thornburg. These respondents further say that the said T. H. B. Thornburg did pay upon said purchase of said 10 lots on November 2, 1891, $600, and on July 12, 1893, $600, making the $1,200 in money that he had agreed to pay at the time of said purchase; that these defendants deny that there is now due and unpaid to the plaintiff upon the purchase money of said lots the sum of $1,846.50, with its interest." The allegation of the answer to the amended bill is as follows: "That it is not true, as alleged by the plaintiff, that said T. H. B. Thornburg, when in life, purchased certain lots from the plaintiff, situate in Central City, Cabell county, West Virginia, as set forth by the plaintiff in said amended bill. And it is not true that he agreed to pay therefor the price of $300 per lot, less 10 per cent., making them net $2,700. That they know nothing about any agreement to purchase said lots, or whether it was by parol, and afterwards ratified and approved by written memorandum made by the said T. H. B. Thornburg. They therefore deny said allegation, and call for strict and full proof of the same; and, if any verbal contract should be established by the proof, the defendants expressly plead and rely on the statute of frauds. These respondents, further answering, say that it is not true that the plaintiff has a lien on all the lots of land, as set forth in its amended bill, for the unpaid purchase money thereof, and denies that it has a right to have said lots of land sold in satisfaction of its lien, and denies its right to have a judgment over against the estate of the said T. H. B. Thornburg in the event that said lots do not bring a sufficient amount of money, when sold, to pay the costs of this suit and the plaintiff's debt. But respondents allege that the said plaintiff has no claim or debt against the estate of the said T. H. B. Thornburg, deceased, and is therefore not en. titled to a judgment for any sum whatever." The defendants rely on the statute of frauds, To avoid this, plaintiff alleges part performance by the payment of $600, possession of the lots, and the letter set up as in satisfaction thereof, in these words: "J. L. Caldwell

Dear Sir: I inclose you check for $600.00 to credit on purchase of lots 4, 5, 6, and 7, of block 50; 16, 17, and 18, of block 59; 6, 7, and 8, block 49. I will also send you check for $16.40 to pay taxes as follows, per your statement: $8.00 on Nos. 4, 5, 6, and 7, of block 50; $6.00 on Nos. 6, 7, and 8, of block 59; $1.65 on No. 17, of block 85; 75c. on No. 3, block 73. This leaves Nos. 16, 17, and 18, of block 59; No. 23, in block 113; No. 27 in block 22,-that you have never sent statement for. When I get able to come, will be down. Very truly, T. H. B. Thornburg."

So far as the competent evidence, and, it might be said, the incompetent evidence, is concerned, the terms of the contract, except by mere inference from other sales, is left entirely unproven; for while it might be inferred that the deceased was to pay $3,000 for the 10 lots, with 10 per centum off, yet the evidence tends to show that a part of this purchase money was payable in allotment stock. So the court is left to conjecture what the terms of the contract really were, and this conjecture is made doubly doubtful by the variance between the original and the amended bills, one being a material departure from the other, showing clearly that the plaintiff was not fully advised as to the real terms of the contract it was seeking to enforce. The lots were unimproved lots, lying open to the commons, in the actual possession of no one, and in the constructive possession of the person having the legal title, which was the plaintiff. So the question of possession is out of the case.

The payment of the purchase money, in whole or in part, is not of itself such part performance as will take the case out of the statute of frauds, even against the plaintiff, and is nothing in his favor. Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297. The letter relied on in confirmation shows nothing whatever of the terms of the contract, and is not such a paper as will avoid the statute of frauds. The evidence of the witnesses Miller and Caldwell, they being interested in the result of the controversy, is incompetent as to personal transactions and communications had with the decedent. Code, c. 130, § 23; Carskadon v. Minke, 26 W. Va. 729. Six hundred dollars paid, a letter admitting a purchase and no more, and inferences from other transactions, is all the court has on which to decree specific performance, in the face of the statute of frauds. In the case of Campbell v. Fetterman's Heirs, 20 W. Va. 398, relied on by plaintiff's counsel, Judge Snyder says: “In such a case it must appear: First, the parol agreement relied on is certain and definite in its terms; second, the acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved; third, the agreement must have been so far executed that a refusal of full execution would operate a fraud upon the purchaser, and place him in a situation which does not lie in compensation at law." The parol agreement is not shown by competent evidence to be cer

tain and definite in its terms, nor is there such performance that the refusal to execute it would operate a fraud upon either party. The plaintiff must show that an action at law for damages will not afford him adequate relief, and he must furnish clear and full proof of the contract, so that it may be enforced finally, and with due regard to the rights of all the parties concerned. Brown, St. Frauds, § 452. Again, the acts of part performance relied upon by the plaintiff must be acts done by himself. Id. § 450. There is no act of part performance either alleged or shown on the part of the plaintiff. Both the original and amended bills allege that Thornburg took possession of the lots, but they neither allege that the plaintiff delivered possession thereof. The plaintiff cannot rely on the repudiated acts of the defendants as part performance, but only on its own act. And such delivery of possession must be alleged and shown to have been notorious, exclusive, and continuous. A mere technical possession, not open to the observation of the neighborhood, and capable of being proved only by select and confidential witnesses, is insufficient. Id. §§ 472, 473. In this case there was no actual possession, as before stated, but the constructive possession remained with the plaintiff by virtue of its retaining the legal title. Hence, clearly, the plaintiff has not shown itself entitled to specific performance of the alleged contract, and, if it has any rights in relation thereto, it must seek them in a court of law. The circuit court committed no error in the decree complained of, which is confirmed.

(46 W. Va. 209)

SKAGGS v. MANN et al. (Supreme Court of Appeals of West Virginia. April 1, 1899.)

EQUITY PLEADING-TRUSTS.

1. L. J. B. purchased a tract of land with his wife's separate estate, and, without her knowledge or consent, took the deed in his own name. They moved on the land, and occupied it as a common home. He afterwards, without her knowledge or consent, conveyed the land in trust to secure certain creditors and indorsers of his, who directed the trustee to sell under the trust. About the time of the sale the beneficiaries in the trust entered into a written contract among themselves, appointing M., one of their number, agent on behalf of all of them to purchase the property in case it did not sell for a sum exceeding $2,250, binding themselves each to pay his proportional part of expenses of sale, payments to the trustee as they should fall due, and all other claims for which they were bound as indorsers for L. J. B. in said trust deed, and in proportion to the amounts of bonds upon which they were indorsers, and any one failing for the space of 15 days to pay his proportion of his liabilities after it became due should forfeit his claim to the benefits of said contract, and were to share ratably any profits which might accrue from said purchase. M. purchased the property at the price of $1,200, took a deed in his own name, paid the purchase money himself, some of the others paying their proportion of costs of sale, and paying considerable sums on some of their indorsements. M. claimed the property

as his own, refusing to recognize the others as co-purchasers under the contract. J. S., one of the parties to the contract and a beneficiary in the trust deed, filed his bill in chancery against M. and the other parties to the contract and L. J. B. and the trustee in the deed of trust, praying that the trustee's deed to M. be construed to be a trust deed for the benefit of all the parties to the said contract in the proportions that each had paid, that M. be required. to account for rents and profits and damages for waste, and that the land be partitioned or sold, and proceeds divided. S., the wife of L. J. B., tendered her petition, making the plaintif and all the defendants in the suit parties thereto, setting up her claim and title to the land in controversy, praying process against the parties thereto, and that they be required to answer the petition; that the trust deed made by L. J. B. and the trustee's deed to M. be set aside; that the deed to L. J. B. be construed to be a trust deed, and the property held thereunder by L. J. B. for her benefit; and that M. be required to account for rents and profits, etc., which petition was, not being excepted or objected to, permitted to be filed, process thereon accepted by all the parties, the petition taken for confessed by all the parties except M., who filed his demurrer and answer thereto, to which answer general replication was made. Depositions were taken by all the parties interested, including their own depositions, and a full and fair hearing was had on the merits of the case as set up in said petition and answer. 'Held, under the circumstances of the case, not error to treat such petition as an original bill.

2. When a party has acquired the legal title to property to which another has a better right, a court of equity will convert him into a trustee of the true owner.

(Syllabus by the Court.)

Appeal from circuit court, Summers county; J. M. McWhorter, Judge.

Bill by Judson Skaggs against James Mann and others. A decree was rendered, from which defendant Mann appeals. Affirmed.

Miller & Read, for appellant. J. W. Arbuckle and A. R. Heflin, for appellee.

MCWHORTER, J. Judson Skaggs filed his bill in equity in the circuit court of Summers county at the January rules, 1895, against James Mann, A. W. Burdett, R. M. Burdett, W. C. Eades, L. J. Burdett, J. J. Swope, and W. J. Lemon, trustee, defendants, alleging that the defendant L. J. Burdett was the owner of valuable real estate, upon which he lived, in said county; that said L. J. Burdett became and was financially embarrassed; that defendants A. W. Burdett, R. M. Burdett, and J. J. Swope and plaintiff were creditors and indorsers of said L. J. Burdett, who, to save his creditors and indorsers, and secure them from loss by reason of their indorsements, executed a deed of trust to defendant W. J. Lemon, trustee, on said real estate, which was duly recorded in said county, and exhibited a copy thereof with his bill; that one of defendant L. J. Burdett's said debts was due and payable to one John Graham, and for which he had a decree to sell the said real estate; that plaintiff, and the defendants L. J. Burdett, J. J. Swope, R. M. Burdett, A. W. Burdett, and W. C. Eades, bought the said decree, and on the 8th day of

November, 1886, executed to said Graham their several separate notes or bonds, payable in one, two, and three years, for said debt or decree, so as to get time to adjust the said debts and save themselves harmless as far as possible, which is shown by a contract in writing among said parties; that plaintiff, along with defendants James Mann, J. J. Swope, R. M. Burdett, and A. W. Burdett, ordered the trustee to sell the land, and he did accordingly advertise the same for sale to be had on the 31st day of March, 1887; that on said last-mentioned day the same parties who ordered the sale entered into a contract in writing to share equally and ratably, and to pay equally and ratably, the said debts of said L. J. Burdett on which they were indorsers, and to buy the land if it should not sell for a sum sufficient to relieve them of all their respective liabilities, and in said contract appointed James Mann as their agent to purchase the said land for them unless it sold for the sum of $2,250, which was near the amount for which they were liable, and that each of said obligees in said writing was to share equally and ratably in the payment of the said debts upon which they were obligated, and to hold an interest in said land in proportion to their payment on said debts, and filed a copy of said contract; that said Mann purchased the land at said sale at the sum of $1,200, which was really less than one-half its value, and only about one-half the amount for which said parties were liable; that soon after the sale Mann sent plaintiff a statement of his part of the costs, which he promptly paid to said Mann, which was the only demand said Mann ever made on plaintiff; that soon after A. W. Burdett and R. M. Burdett became entirely insolvent, and paid nothing on any of the obligations; that, soon after it became known that said parties were insolvent, plaintiff, Mann, and Swope met and entered into a parol agreement that Mann would pay the demands as they became due to the trustee for the purchase of the land; that Swope would pay on the large note in the Bank of Union, upon which Swope, A. A. Miller, R. M. Burdett, and James Mann were indorsers, and that plaintiff would pay on another large note in the Bank of Union, upon which plaintiff, A. W. Burdett, and R. M. Burdett were indorsers. and also to pay each and other smaller debts for which they were liable, and which were secured in said trust deed; that in pursuance of said last agreement Mann paid the sums as they came due to the trustee, and were ap plied, as plaintiff was informed, to the payment of the notes given by plaintiff and others, to John Graham; that Swope paid large sums on the debt to the Bank of Union, which he so agreed to pay, and the plaintiff paid out in full the debt on which he was to pay to the Bank of Union and other debts embraced in said trust deed to the extent of about $800; that this contract was made for the convenience of the parties, and that all

the payments so made on the debts by him were to be credited to him as so much paid on the lands, or as his part of the purchase money; that L. J. Burdett and W. C. Eades paid nothing on the debt due to John Graham; that at divers times plaintiff, Mann, and Swope met and settled about the rents and profits of the land and the payments they had respectively made on said debts, and agreed to have a final settlement of the said transaction when the trustee was ready to made the deed, and they would divide the land in kind among themselves, or sell and divide the proceeds in proportion to the amounts paid; that plaintiff took for a year or two, with the full knowledge and consent of Mann, a part of the proceeds of the rent of the farm in grain, etc., and left the remainder in the hands of their agent, Mann, to be applied as a credit on whatever Mann had paid above his proportion; that Mann was to keep a correct account of expenses and of rents and profits, and settle from time to time, which he did for a year or two, but now wholly refuses to do so; that there was no breach or failure on plaintiff's part of any of the contracts about the land; that Mann took to himself a deed from the trustee for said land, a copy of which he exhibits; that Mann claims title and ownership of the land, has gotten large sums from said land since the purchase, much more than he has paid on Burdett's debts, has cut and destroyed large amounts of saw timber and ties and tan bark, and greatly damaged and despoiled the value of said land; that said Mann is not the owner of said land, but only has an equitable interest in same, along with plaintiff and others; that he bought it as agent or trustee of them, and that the deed, as far as It conveys an absolute title, is a fraud on plaintiff; that it is only a trust deed, and Mann holds said land in trust, and prays that said deed may be construed to be a trust deed for the benefit of the parties who paid as specified; that all necessary and proper accounts of payments by the several parties on the debts of L. J. Burdett be taken, said Mann be required to render a strict account of the rents and profits and for all damages done by the destruction of timber on same, and for partition in kind or sale and division of proceeds, and for general relief.

Defendant Mann filed his demurrer to said bill, and, without waiving his demurrer, answered the same; admits the deed of trust executed by L. J. Burdett to defendant Lemon, trustee, and the written agreement; says they were executed by him in good faith; that he purchased the land at trustee's sale at $1,200; that he paid all the purchase money therefor, none of which was refunded to him by plaíntiff or either of defendants; that the notes executed to said trustee were by respondent, J. J. Swope, plaintiff, R. M. Burdett, and A. W. Burdett, but were wholly paid by respondent, as well as costs of said sale; that out of the proceeds of said notes and sale of the land the

John Graham debt represented by said agreement was paid, and the said agreement assigned to respondent, and the balance of the fund from the sale of the land was distributed as follows: One hundred dollars paid by trustee to Swope, $100 to plaintiff, and the residue, $37.41, to other and minor creditors, secured by said trust; denies that plaintiff or either of defendants paid off the debts or either of them, that respondent was indorser on or upon which they were indorsers, but utterly failed to do so; that all of said debts had been paid by respondent, except one of about $800, for which there is a decree against respondent; that said plaintiff and defendants, except respondent, violated the contract of January 1, 1884 (evidently meaning March 31, 1887), and failed to comply with it in every particular, and have forfeited their claim to the benefits to be derived therefrom; denies any oral agreement as alleged, or that respondent, plaintiff, and Swope ever met and settled about the rents of the land, or that he refused to make a final settlement with said trustee, but that respondent had long since made a correct and final settlement with him; avers that defendant Swope is not an indorser for L. J. Burdett, and paid nothing for him; denies any agreement to divide said land in kind or proceeds thereof; that the rents were accounted for until after the bonds for the purchase money became due, and he had to pay them, plaintiff and other parties having failed and refused to pay any part, or to comply with said agreement; denies that he received large sums from said land since the purchase, as much or more than he had paid out on debts of Burdett; denies that he cut or destroyed large amounts of timber, ties, and tan bark, and has greatly damaged and despoiled the land. Respondent avers that he has improved the iand, cleared about 20 acres, and spent much more than he received therefor from any source; denies that the land is worth more than what he paid for it, $1,200, and has offered and requested plaintiff to take the land at what he paid for it, with its interest, which he refused; and denies each and every allegation of the bill not expressly admitted. Defendant Swope answered the bill, admitting the material allegations thereof, and claiming an interest in the property to the extent of his payments on the debts of L. J. Burdett, as per the agreement, and prays that Mann may be held to be trustee for the parties holding the property in trust for the several parties. Susan Burdett tendered her petition in said cause, alleging that she is the wife of defendant L. J. Burdett; that her maiden name was Susan Scott; that at time of her marriage she was possessed of valuable separate estate worth $2,000 cash, and that she furnished to her husband $1,800 with which to buy land for a home for her, and that with said money he bought the land in controversy; that the legal title was to be conveyed to her, but, as she is informed, by some mistake it was not done, but was conveyed to her husband; that she was to pay