43 W. Va. 246 | W. Va. | 1897
Joseph Jarretr and his daughter Virginia Anderson owned jointly a tract of three hundred and fifty acres of land, and Jarrett owned alone an adjoining tract of one hundred and ninety acres. The three hundred and fifty-acre tract was made up of two tracts, one called the Feamster land, the other the Shuck land, and the one hundred and ninety-acre tract was called the Oarraway land. Jarrett and Mrs. Anderson entered into a written agreement, by which Jarrett agreed to convey to Mrs. Anderson the Oarraway land (one hundred and ninety acres) and the Shuck land (part of the three hundred and fifty acres), and she agreed to convey to Jarrett the remainder of the three hundred and fifty acres, the Feam-•ster land. Before the execution of deeds under this agreement, Mrs. Anderson died, leaving infant children, and Jarrett brought a suit against them, to execute the agreement, in which was a decree that it be executed by the execution by a commissioner of a deed to Jarrett in behalf of Mrs. Anderson’s heirs for the land lie was to get under it, and one to the heirs for the land which Mrs. Anderson was to get under it, and authorizing the commissioner to have a survey made, and to make the deeds conformably to it. Such survey was made, and the deeds were made according to it. Later the heirs of Mrs. Anderson brought this suit, alleging a mistake in some of the lines of said deeds, whereby Jarrett got six or seven acres of land belonging to Mrs. Anderson under the agreement, and praying that said deed be reformed by the correction of such mistake; and, the court having decreed such reformation, Jarrett appeals.
It is said in argument, in support of the appeal, that the demurrer to the bill ought to have been sustained, because it does not set forth with sufficient definiteness the al-
Adverting now to the aspect of the case as presented by the evidence, as the case rests on a very considerable quality of oral evidence, and considerably conflicting, I do not see why we can be expected to reverse the findings of fact made by the chancellor below. It cannot be requisite, or even proper, that I detail evidence, or even all the facts, as they elucidate no principle of law, and would be no precedent for future cases.
It is urged in the petition for the appeal that the line claimed by the Anderson children is not the true, original line separating the Shuck from the Teamster tract, and the contract says she gets the Shuck land. I answer that, if its locality was uncertain, the agreement, was designed to make it certain; and, if it varies from it, stick, was the intent, of the parties, because they made the contract, specify that old fence as the line, thus intending change; and thus we. may say that Jarrett, on the day of the contract, in fixing this line, was not finding the original Shuck line, but originating and fixing a line agreed on between him and Mrs. Anderson, as specially agreed on. The statement in the. agreement, that. Mrs. Anderson was to get the Shuck land was a general description of the land, not definitive. of this line when a special clause fixed this particular line or description. Where there are inconsistent calls, — one general, the other specific, — the specific prevails. 2 Am. & Eng. Enc. Law, 498; 1 Greenl. Ev. § 801. The short of the case is that, the line claimed by the plaintiffs is that, one located by Jarrett. himself, pursuant, to and in immediate execution of the agreement., no doubt, along just that fence well known and well understood by him and his daughter.
It cannot be said that the adjudication in the first suit is conclusive. It did not specify the line, but (likely improperly) left it to be ascertained by after-surveying, not confirmed by court, and the line was fixed by it and the commissioner’s deed, and not adjudicated as true. This point is not urged; hardly claimed as good. The decided
Affirmed.