59 W. Va. 683 | W. Va. | 1906
. On a writ of error to a judgment of the circuit court of Mason county, in an action of ejectment, C. J. Baker and Geo. W. Baker make only one assignment of error, namely, the refusal of the court to grant them a new trial, on the ground that the verdict in favor of the plaintiff, Maria E. Casto, is contrai’y to the law and the evidence.
Strange as it may seem, there is no conflict whatever in the evidence. The testimony of all the witnesses is in perfect harmony and agreement, and the only question submitted to the jury was that of the intent of the grantor in the execution of three deeds. In the year 1878, Charles Baker, having-four sons and a daughter, namely, W. H., J. M., C. J. and Geo. W. Baker, and Maria E. Casto, and owning a considerable quantity of land, divided it among his children, by executing deeds to them for the portions which he desired them to have. Accordingly, A. W. Rollins, a surveyor, came, at his request, and divided the land into parts, by survey, as directed by Charles Baker, and then prepared the deeds, which were immediately executed by Charles Baker and his wife. The lots so laid off for G. J. Baker, Geo. W. Baker and Maria E. Casto, respectively, were coterminous, and a corner, common to the lots surveyed for C. J. and Geo. W. Baker, was in the eastern line of the lot surveyed for Maria E. Cas-to, the general course of which, though broken, is practically north and south. Where the grantor fixed that line, by the deeds to said three children, is the bone of contention.
As the calls of that line follow the first call in the description of the tract conveyed to Maria E. Casto, as found in her deed, it is necessary, in the interest of clearness, to quote here the description of the first line as well as that of the one
The question thus determined by the jury was one of intention, involved in the construction of the deed, a. matter of law and fact combined, not one of pure fact. A latent ambiguity in the deed, discovered in the effort to apply it to its subject matter, the land, and not apparent on its face, made it necessary to consider all the circumstances attending the execution of the deed, the situation of the parties and their conduct in the transaction of the business. The object of the departure from the survey, in the execution of the deeds, was to give Mrs. Casto more land near the south end of her eastern line. The problem submitted to the surveyor was, whether he could accomplish that result, without further surveying. To aid him, it was suggested that he make the poplar the south terminus, instead of the stone. All knew where it was. Then his field notes disclosed the oak corner tree on the line surveyed. To that, he could determine the distance by calculation, or insert the distance between it and the stone pile, for it was approximately the same pile. The course of this new line from the poplar to the oak would differ from that of the old line, and the making of that change was probably the most difficult matter in the transaction. For some reason, he failed to make it. If he had made it, all the other courses would have agreed with the line, as indicated by the monuments. He did not know, and could not have known, what object would be the C. J. and Geo. W. Baker corner on the line, in lieu of the oak -tree, nor at the northern terminus, instead of the black oak he had marked, if he moved the entire line over. He never went to these points to ascertain what the monuments would be, or to establish any. In point of fact, there was no white oak where the corner would have been and no tree at the end of the line. To have moved the whole line over, without further surveying, it would have been necessary to leave out calls for monuments, or put in calls for imaginary ones. He did neither, but put in those he had marked on the line surveyed. The description of the line, as he wrote it, and the parties all accepted it, under
This analysis of the parol evidence illustrates the wisdom and justice of the well settled rule, that marked lines and natural monuments control courses and distances. Its most frequent application is found in cases in which the subject matter of the inquiry is the identification of a boundary line, but the element of intention enters more or less into every such case. Here, it is unusually prominent, for the reason that all the facts and circumstances, relating to the preparation, execution and delivery of the deeds are shown. Ordinarily, they do not so fully appear. The difference between this case and those in which the rule is generally applied, is one of de.gree, not of principle. The jury, in arriving at their verdict, wholly ignored this rule. They also returned a verdict clearly inconsistent with the overwhelming weight of practi
For-the reasons stated, the judgment will be reversed, the verdict set aside, a new trial allowed and the case remanded.
Reversed. Remanded.