Carter v. Carter

87 W. Va. 254 | W. Va. | 1920

Miller, Judge:

In a suit for partition of a certain bouse and lot in the city of Huntington, the court below dismissed the bill, and plaintiff has appealed^

Plaintiff is the father-in-law of defendant and the 'sole heir ’ of his deceased son, Angus R. Carter, Jr., who was the husband of the defendant, and died intéstate.'

. The basis of plaintiffs claim of right to partition is that during the life time of said decedent, he and the defendant, his wife, joined in a deed to J. W. Perry, trustee, conveying to him said lot, with covenants of general warranty, without condition or limitation, and without any specific' power thereby created, except as implied in the recital therein, as follows:

“Witnesseth: That whereas, the property hereinafter mentioned and described is now in the name of Angus R. Carter, Jr., and the said Angus R. Carter, Jr., desiring that he and his wife, Elah Carter, should be and become joint owners in and to the property above referred to, and to come equal owner therein. Row,'therefore, this deed witnesseth;” etc.

- On the same day and contemporaneously with the making, execution and delivery of the said first deed, said J. W. Perry, trustee, made, executed and delivered to said Angus R. Carter, Jr., and Elah Carter, a deed, whereby in consideration of one dollar and other valuable consideration, the said grantor, trustee^thereby granted unto said grantees, the said’lot, which deed contains the following:

‘It is expressly understood that if the said Angus R. Carter, Jr., should die before his wife, Elah Carter, dies, that then the entire estate in and to the said property shall be and become the sole property of the said Elah Carter; that if the said Elah Carter _ should die before her husband, Angus R. Carter, Jr., should die, then the entire estate, in fee simple in and to the said property, should be and become the sole property of the "said Angus R. Carter, Jr. And the said party of the first part doth hereby covenant with the parties of the second part, that he will warrant generally the title to the property hereby conveyed.”

At common law there was right of suvivorship in joint tenants, but section IS, chapter 71 of the Code, abolishes such right, unless, as provided in section 19 thereof, it is made to appear from the tenor of the instrument that it was intended that the part of the one dying first should then belong to the others., It is conceded by both parties that the two deeds, being parts of one and the same transaction, should be read and considered together; but because the deed from Carter and wife to Perry, trustee, does not specifically create in him power to reconvey to the grantors subject to any conditioñs or limitations except such as may be implied from the preamble in the deed, he was without power in his deed to create in his grantees a joint tenancy with right of survivorship; and for this proposition we are referred to, Seborn v. Beckwith, 30 W. Va. 774; Fidelity Co. v. Railroad Co., 32 W. Va. 244, 265; Atkinson v. Beckett, 34 W. Va. 584; and other authorities holding in general terms that a naked trustee to hold property in trust, has no implied power to sell or encumber the trust subject. There is no doubt about this proposition. But here we have a deed from the beneficiaries of the trust, with a recital implying an intention to create a joint tenancy in the property, which at common law would have created in them the right of survivor-ship. In an effort to effectuate their purposes, and manifestly with reference to the provisions of section 19 of said chapter 71, we must say, in construing the two deeds together, that they procured Perry, their trustee, to grant the property to them in such a way as to give right of survivorship in them. They accepted this deed and placed it upon record, and took and held the property thereunder. That deed must be regarded as their interpretation of the contract, and if good to invest title in them, evinces their intention in the' premises. The- plaintiff, therefore, as sole heir took no estate in the property entitling him to partition thereof; no estate in the land descended to him. By accepting a deed poll, the grantee is bound by the covenants or conditions; he takes the estate created with the burdens imposed. 2 Minor’s Inst. 666-7; Crawford’s Ex’or v. Patterson, 11 Gratt. 364, 370; Vanmeter’s Ex’ors v. Vanmeters, 3 Gratt. 148; 2 Devlin on Deeds, §§ 850a, 940a; 18 C. J. p. 217, § 128, and eases cited in note.

For these reasons we must affirm the decree. ■

Affirmed.