130 Va. 682 | Va. | 1921
Lead Opinion
delivered the opinion of the court.
On September 5, 1901, Green Charles and wife and D. M. Charles and wife conveyed a certain tract of land to George W. McClanahan. So much of the granting clause as is necessary to recite reads thus: “The said parties of the first pail; do grant, bargain and sell unto the said George W. McClanahan, all that certain piece or parcel of land situate in Buchanan county, Virginia,” (here follows a proper description of the land) “containing 20 acres, the same more or less. (One-half of the mineral is excepted from this conveyance.)” Then follows a covenant of special warranty, with the usual Virginia statutory covenants of title.
The pertinent facts as to the original conveyance from Charles to McClanahan are, that at the time the grantors did not think that they owned but half of the coal and mineral underlying the tract (though Green Charles denies this). The claim on the part of McClanahan is, that it was his purpose to buy and the intention of the grantors to convey their entire interest in the land; and he filed an answer which he asked to be read as a cross-bill, praying that his deed be reformed so as to carry out this intention.
It is manifest, however, that even if the grantors were mistaken in thinking that they did not own all of the minerals, it is nevertheless true, and is clear from the testimony, that when they came to execute the deed, it was explicitly and distinctly understood that the title to one-half of the minerals thereunder was not to be conveyed. There
In Slocum v. Bracy, 55 Minn. 249, 56 N. W. 826, 43 Am. St. Rep. 499, it is said that “no rule of law is better settled than that where a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio, and the rights of the parties rest thereafter solely on the deed.’’
In Woodson v. Smith & Johnson, 128 Va. 652, 104 S. E. 794, this is said: “Doubtless, many cases may arise in which distinct and unperformed stipulations contained in a contract for sale will not be merged in or discharged by deed where that instrument is silent upon the subject of such stipulations. In such cases, there is no conflict between the contract and the deed. But- the deed must be regarded as the sole and final expression of the agreement between the parties as to every subject which it undertakes to deal with. All inconsistencies between the prior contract and the deed must be determined by the latter alone, and previous negotiations or agreements, verbal or written, cannot be set up for the purpose of contradicting it. The application of these principles may result in occasional hardship and occasionakfailure to carry out the real intention of the parties; but the principles themselves are safe and sound, they have been shown by experience to promote justice and fair dealing in the average case, and they are, for these reasons, abundantly supported by authority.” Citing Portsmouth Refining Co. v. Oliver Refining Co., 109 Va. 513, 64 S. E. 56, 132 Am. St. Rep. 924; Stephen Putney S. Co. v. R., F. & P. R. Co., 116 Va. 211, 81 S. E. 93; 2 Devlin on Deeds (3d ed.), sec. 850a; 13 Cyc. 616; 8 Ruling Case Law, p. 1048, sec. 102; note to Clifton v. Jackson Co., 16 Am. St. Rep. 622.
The trial court dismissed the complainant’s bill upon the ground, to use the language of the decree, “that the equities are with the defendants” — that is, the decree refused to grant the prayer of the bill for the correction and reformation which was prayed for by the complainant, Charles, and also denied his prayer that so much of the deed from George W. McClanahan to his son, Wilson Mc-Clanahan, of July 16, 1918, as purports to convey the one-half of the coal and minerals underlying the tract which had been excepted from his conveyance, because it constituted a cloud upon his (Charles) title.
We are of opinion that this constitutes harmful error, and that this relief should have been granted. Under our construction of the original deed to McClanahan, he has no title to the half of the minerals which was reserved, and it appears from this record that the complainant, Green Charles, is now the sole owner of the estate which was thus reserved. The deed from George W. McClanahan and wife to Wilson McClanahan does, therefore, constitute a cloud upon his title, which he is entitled to have removed.
The equitable doctrines referred to in the dissenting opinion are not controverted. We cannot, however, apply them to the facts appearing in this record, for we find no evidence of fraud on the part of the appellant, Charles. He testifies that at the time of the original contract the reservation of the minerals was made, saying with reference thereto that he told McClanahan “in the beginning that we would except one-half of it;” and that he “also told him when we made the deed that we would except one-half of it.” This version of the original contract is strikingly confirmed by the testimony of McClanahan himself, for in his cross-examination this question and answer appear:
“Q. Then at the time you bought and at the time you accepted this deed, you bought the surface and one-half of the coal and mineral underlying this tract, didn’t you?
“A. That is what I bought.”
Our conclusion, therefore, is to reverse the decree of the trial court and enter a, decree here cancelling, vacating and annulling the deed from George W. McClanahan and Jemima McClanahan, his wife, to Wilson McClanahan, dated July 16, 1918, in so far as that deed purports to convey one-half of the coal and minerals underlying the twenty acres of land embraced in and conveyed by that deed, and removing the cloud thereby created upon the appellant’s title to one-half of the coal and minerals underlying the tract.
Reversed.
Dissenting Opinion
dissenting:
I cannot concur in two of the holdings of the majority opinion, namely: (a) That the defendant, George W. Mc-Clanahan, is not entitled to have the deed to him from Green Charles and D. M. Charles, of date September 5, 1901, reformed, as prayed for in the answer of such defendant, by striking therefrom the clause therein which is as follows, to-wit: “ (one-half of the mineral is excepted from' this conveyance),” so as to make the deed conform in its subject matter with the contract of purchase which was entered into between said defendant and such grantors prior to the execution and delivery of the deed; and (b) that the deed from such defendant and wife to their son, Wilson McClanahan, of date July 16, 1918, should be cancelled, vacated and annulled in so far as it purports to convey one-
The correctness of both of these holdings depends upon the correctness of the holding first mentioned.
As I understand the opinion, it does not affirmatively decide whether the evidence does or does not establish that the contract of purchase differed from the deed in that the contract of purchase contained no reservation of any mineral interest, whereas the deed did contain the reservation aforesaid, nor does the opinion affirmatively decide whether such reservation in the deed was or was not occasioned by the mutual mistake of both the grantors and the said defendant grantee in thinking-at the time the deed was executed and delivered that the grantors owned only a half interest in the minerals (meaning coal and other minerals), underlying the land, or by such mistake on the part of the grantee, induced by the fraudulent representation of the grantors. But the opinion takes .the following position, namely (I quote from the opinion) :
“* * * that even if the grantors were mistaken in thinking that they did not own all of the minerals, it is nevertheless true, and is clear from the testimony, that when they came to execute the deed, it was explicitly and distinctly understood that the title to one-half of the minerals thereunder was not to be conveyed. There was no mistake of the draftsman in drawing the deed, nor was there any mistake or misunderstanding as to the property which the deed conveyed and as to the estate in the minerals therein which were reserved. The precise form of the deed grew out of the ignorance of both the grantors and the grantee as to the true estate which the grantors owned prior to the conveyance.
“We must first determine, then, in this case, the true effect and proper construction to put upon the original conveyance of the twenty acres here involved. McClanahan*691 claims that it was the previous understanding that he was to have the entire estate therein which the grantors owned. In the absence of fraud or mistake in the instrument itself, the rule is universal, applicable to deeds as well as to all other contracts, that prior stipulations and understandings are merged in the final and formal contract executed by the parties, and when a deed has been delivered and accepted as performance of an antecedent contract to convey, the contract is merged in the deed.” Then follows the citation of a number of cases to sustain such position.
This position, as I understand it, is this: If it be assumed that the contract of purchase was of the land and all mineral interests, and that when the deed came to be made subsequently, the clause reserving one-half of the mineral interest, which is ¡at variance with the contract of purchase, was inserted in it solely because of the mutual mistake of the grantors and grantee in thinking at the time that the grantors did not own such one-half interest, nevertheless the grantee is bound by the deed as it stands, since the language employed in it is the precise language intended at the time by both grantors and grantee to be so employed, there being no mistake of the draftsman in drawing the deed. Such position, as it seems to be, is in direct conflict with the well settled doctrine on the subject.
As said in 2 Pomeroy’s Eq. Jur. (3rd ed.), sec. 853: “All mistakes of fact in agreements executed or executory, express or implied, must be either concerning the subject matter or the terms. In the first case the terms are stated according to the intent of both the parties, but there is an error of one or both in respect of the thing to which those terms apply — its * * * title * * * and the like
The case before us belongs to the first class of cases mentioned in the quotation just made. The error under con
As said by the same authority, section 866: “The doctrine in all its breadth and force is maintained by courts and
And as also said by the same authority, section 859: “It is * * * settled that in suits, whenever permitted, to reform a written instrument on the ground of a mutual mistake, parol evidence is always admissible to establish the fact of the mistake and in what it consisted; and to show how the writing should be corrected in order to conform to the agreement which the parties actually made.”
The same is true in cases of fraud. Idem, sec. 872 et seq.
And the same doctrine is applicable where the reforma
Hence, in the view I take of the case, it is essential for the decision of the questions covered by the two holdings of the majority opinion above referred to that we should decide what the evidence in the cause establishes was the contract of purchase with respect to its difference from the deed; and what caused the reservation aforesaid to be inserted in the deed.
Upon such a question of fact it is true,- as is well settled, that “the evidence must he clear, convincing and satisfactory.” Charles v. Charles, 127 Va. 604, 104 S. E. 823; Pomeroy’s Eq. Jur., sec. 862. But the testimony of the defendant, George W. McClanahan, who, it is to be remembered, was examined by the appellant, Green Charles, as a witness in his behalf, clearly, convincingly and satisfactorily shows that the contract of purchase contained no reservation of any mineral interest in the land; and that it was not until subsequently to the payment and satisfaction in full by this defendant of the purchase money and other consideration for the land that, when the deed to be made by the vendors was mentioned, the vendors (through appellant) stated to the defendant vendee that they owned only a half interest in the mineral interest in the land, and for that reason alone would have to reserve such an interest by the provisions of the deed. Both of the vendors testify in the cause as witnesses for appellant, and it is, to my mind, a significant fact that neither of them deny, and the appellant practically admits, that they did represent to the said defendant at the time they made the deed to the latter, as the reason for the reservation aforesaid, that they owned only the half interest in the minerals which the deed by its provisions conveyed, and said defendant positively testified repeatedly in his deposition was their distinct representation on the subject; yet, both of such vendors testify in
“Q. Wasn’t the exception made because you did not think you owned the entire interest in the coal?
“A. It might have been something bearing on my mind that way, that we did not own the entire interest, I could not say.
^ $
“Q. Did you not state to George W. McClanahan that you did not own the one-half interest in the coal?
“A. I don’t remember of ever saying much to him about it. I might have said something to him that we didn’t own it, on account of some settlement that was made in the Pearson survey.”
D. M. Charles testified on the same subject as follows: “We thought there was a third of the coal gone from us but we were going to except half of it.”
Such being the facts, it seems to me to clearly appear that the untrue representation of the grantors to the grantee as to the title was in effect a fraudulent representation, since the grantors knew at the time they made it that it was not a correct representation, and it was intended to induce the vendee to act upon it as being strictly correct.
There is nothing in the testimony in chief of appellant or in the other evidence for appellant, in conflict with the testimony of said defendant with respect to what the contract of purchase was, except that there are certain state
On the whole, therefore, I think that the case established by the evidence is as follows: The contract of purchase was of the land, including all mineral interests (meaning coal and other mineral interests). When the deed came to be made, the aforesaid reservation provision was inserted in it, solely because of the mistake of the grantee aforesaid in thinking that the grantors did not own and hence could not convey more than a half of the mineral interest embraced in the contract of purchase, such mistake on the part of the grantee being induced by the fraudulent representation aforesaid on the part of the grantors.
This presents, to my mind, a typical case for reformation of the deed under the well settled doctrine on the subject. And the same would be true if the mistake aforesaid had been merely a mutual mistake of grantors and grantee.
McClanahan held the deed as he did for seventeen years before this suit was brought because he thought it was all the conveyance his grantors had it in their power to make him. He was led into this mistake by the false representation of his grantors aforesaid. From the bill in this suit McClanahan first discovered the existence of the mistake. He thereupon promptly answered the bill and asked for the reformation aforesaid of the deed.
I think, therefore, that the deed should be reformed in