63 W. Va. 535 | W. Va. | 1908
Judgment for the plaintiff in an action of ejectment, rendered by the circuit court of McDowell county, on an agreed statement of facts, in favor of H. Bank and others against Aaron Catzen and others, is the matter complained of here.
G. PI. Lawson, the owner of a tract of ten acres of land, irregular in form, but oblong, the longer lines thereof running northeast and southwest, and the shorter lines northwest and southeast, _ conveyed one-half thereof to G. B. Buchanan, by a deed’which describes the part conveyed as follows: “One half interest in a certain tract of land containing ten acres, said one-half interest to be taken off the west end of said tract of land.” Prior to the execution of this deed, and in anticipation of the purchase of one-half of the land by Buchanan, he and Lawson went upon the land and attempted to divide it equally, by establishing a line through the same on which stakes were driven at intervals of a few feet, and building a fence on each side of the line so marked, leaving a lane about ten feet wide between the fences. Later, Lawson and wife entered into a contract with H. Bank and W. H. Show for the sale of “the eastern half of the tract.” Still later, Buchanan and wife conveyed to Aaron Catzen their part of the land, describing it as “being the west end of said tract.” Then Lawson and wife conveyed to Bank,
This action was brought not only to recover the 88-100 of an acre, but to obtain it in such manner as to change all together the line established before the deeds were executed. This line is almost parallel with the northeastern line of the entire tract, the course of which is S. 11° E., while that of the division line is S. 13° E. The demand set up in the declaration is based upon the location of a division line running due north and south, on the theory that the deed contemplates such a line. A recovery of the land demanded would change both termini of this division line, throwing the north end east and south end west. This is vigorously resisted by Catzen because the effect of it would be to take practically all of the additional land out of what is regarded as his frontage, land suitable for building purposes, now very valuable because of its location and character. Catzen insists that, if the plaintiffs are entitled to the additional area, the whole line should be set over so as not to change the form of his land, nor to take an undue portion of the part thereof that is suitable for building purposes.
As the terms, “the eastern one-half of the ten acres of land,” conveyed to the plaintiffs by Lawson and wife, had,
That technical terms are not, and need not, always be used by the parties to a contract in their technical sense, is very well settled by the authorities. Like non-technical words, they sometimes have peculiar meaning, ascertained by reference to the subject matter, the situation and purposes of the parties and the surrounding circumstances. “Where a technical word is used, evidently in a sense different from its technical signification, the court will give to it the construction which the grantor intended. A grantor has the right to assign to words in the deed a meaning different from that which they ordinarily bear.” Devlin on Deeds, section 837. “The court will not resort to arbitrary rules of construction, if, without so doing, the'intention of the’parties can be ascertained. The deed and its descriptive clauses will be construed as any other contract would be. When a doubtful description is to be construed, the court should endeavor to assume the position of the parties, the circumstance of the transaction should be carefully considered, and in the light of those circumstances, the words should be read and interpreted.” Id. section 1012. This principle was applied in Armstrong v. Ross, 61 W. Va. 738, in which a contract purported by certain terms used in it to convey all the coal in a certain tract of land, but bore evidence on its face, by references to other documents and otherwise, of intention, on the part of one party, to sell, and, on the other, to buy, only one of the several veins of coal, it appearing that, at the time, they knew of only one vein, wherefore, it was presumed that they had no intention of selling and buying, respectively, any other vein. It is true that the documentary evidence in that’ instance disclosed this intention, but we said that, if it had not, it would have been proper and allowable to establish it by extraneous evidence and thereby accomplish the
Reversed. Remanded.