55 W. Va. 512 | W. Va. | 1904
Appellant, Georgt W. Lambert, appeals from a final decree, made and entered against him and David G. Sayers, by the
The cause was formerly in this Court upon an appeal Clark et al. v. Sayers et al., 48 W. Va. 33, and the decrees then appealed from were reversed, without prejudice to either party; and the cause was remanded to the circuit court, with leave to both parties to amend their pleadings and proof in accordance with the truth, that there might be a fair and final determination of the controversy between the litigants.
The decree complained of here is, in part, that the deed from defendant, D. G-. Sayers to the defendant, George W. Lambert, bearing date of the 24th day of November, 1891, conveying one-third undivided interest in the tract of three thousand two hundred and twentj'-six acres of land referred to in the cause, be set aside and annulled as fraudulent, and as a cloud upon the title of plaintiffs to said tract of three thousand two hundred and twenty-six acres of land; that the estoppel arising from the covenants contained in the deed from the defendant, D. G. Sayers and others to Joseph I. Doran, dated November IJ, 1882, referred to in the cause, be enforced against said D. G. Sayers; that said Sayers shall convey by deed to the plaintiffs, or to such person or corporation as* they shall direct, all of the' title to one-third undivided interest of the said tract of three thousand two hundred and twenty-six acres of land, the title to-which was derived by eompormise, purchase and conveyance from the heirs of Joseph Jackson, Jr.; and that said Sayers and Lambert be perpetually enjoined from asserting or disposing of their claims of title to one-third of said three thousand two hundred and twenty-six acres of land under the said compromise anci conveyance from the heirs of Joseph Jackson, Jr., and under the said deed from Sayers to Lambert.
The material facts in the ease, briefly stated, are as follows r By patent of the Commonwealth of Virginia, bearing date on the 1st day of December, 1854, there was granted unto George-W. G. Brown, Samuel L. Graham and Joseph Jackson, Jr., a certain tract of land, containing three thousand two hundred and twenty-six acres, lying in Tazewell County, Virginia, (now McDowell County, West Virginia,) on the waters of Sand Lick Creek, and on the waters of Spice Creek, on the Laurel Branch,.-
The Mary Ladd one thousand seventy-five acre part was returned delinquent for the non-payment of the taxes thereon, and sold to said D. G. Sayers. The clerk of the county court •of said county of McDowell, by his deed bearing date on the 17th clajr of September, 1881, executed and delivered to said D. G. Sayers (by the name of David G. Sayers,) a deed in which it is, among other things, recited that on the 6th day of November, 1877, at a sale of the real estate theretofore returned' delinquent for the non-payment of the taxes due thereon in the said county of McDowell, said Sayers became the purchaser of a tract of land of one thousand and seventy-five acres, being •one undivided one-third part of three thousand two hundred and twenty-five acres'in said county-, which formerly belonged to, and was returned delinquent in the name of Mary Ladd for the non-payment of the taxes due thereon for the year 1876. The description of the land as given in the said deed is the same as that contained in the patent hereinbefore recited. The deed
By his deed, bearing date on the 22d day of September, 1881, similar in form to the above mentioned deed, except as to the name of the delinquent owner designated therein, the said clerk also conveyed to said Sayers another tract of one thousand and ■seventy-five acres, which formerly belonged to, and was returned delinquent in the name of, Joseph Mullins for the non-payment of the taxes due thereon for the year 1878; and was purchased by said Sayers at a sale thereof for said taxes on the 4th day of November, 1879. This deed is also recorded in Deed Book No. 5 at page 355. The entire tract of land is bounded therein, and described as containing in all three thousand two hundred and twenty-five acres, of which one thousand and seventy-five acres, being the one undivided one-third part thereof, was sold as aforesaid, and thereby conveyed to Sayers. By deed executed by David G. Sayers and wife, Iienry Harrison and wife and John Graham, Jr., to Joseph I. Doran, bearing date on the 27th day of October, 1881, the grantors therein conveyed unto Doran three several tracts of land, situated in McDowell county on the dividing ridge, Horsepen Creek, and Big Creek, one of them containing eight hundred and twenty acres, being the same tract of land, conveyed by the clerk of the county court of McDowell county to Sayers by deed dated August 31, 1881, and recorded in McDowell county in Deed Book No. 5 at page 335; one other of them, containing eight hundred and twenty acres being the same land, which the said clerk by deed dated September 1, 1881, recorded in Deed Book No. 5 at page 332, granted and conveyed unto said Sayers; and the other of them, containing one thousand and seventy-five acres, being an undivided one-third part of said tract of three thousand two hundred and twenty-five acres, and being the same tract of land which the clerk as aforesaid, by deed dated September 22, 1881, recorded in Deed Book No. 5 at page 355, granted and cohveyed to Sayers. The deed then says: “And the said David G. Sayers has
On the 4th day of March, 1882, by their deed of that date, said David G. Sayers and wife conveyed to J. H. Divine, “all the following described real estate lying and being in the county of McDowell, on Sand Lick, a tributary of Tug Fork of Tug Biver, being one undivided one-third part of three thousand two hundred and twenty-five acres, conveyed to D. G. Sayers, on the 17th day of September, 1881, by John F. Johnson, clerk of the county court of McDowell county, by deed, which is duly recorded in the clerk’s office of said county in Deed Book No. 5-at page 353. Said land adjoins a tract of six hundred and sixty-two acres of W. P. Cecil, and a tract of one hundred and fifty acres of James B. Harman, and for a more particular description of said land reference is made to said deed made by said Johnson, containing one thousand and seventy-five acres, more Or less, and being an undivided third part of said three-thousand two hundred and twenty-five acres as aforesaid," etc.
On the 6th day of November, 1882, John F. Johnson, clerk of the county court of McDowel county, by his deed of that date, which was admitted to record on the 28th day of December, 1883, and was recorded in Deed Book No. 7, page 7, in said clerk’s office, granted to said Sayers, the tract of one thousand and seventy-five acres, being one undivided one-third part of three thousand two hundred and twenty-five acres, which formerly belonged to, and was returned delinquent in the name of, Joseph Jackson, Jr.
On the 17th day of November, 1882, said Sayers and wife, and Henry Harrison and wife, for the consideration of $1,612.-50. of which $806.25 was paid in cash; the residue to be paid-in twelve months thereafter; and for which balance, to-wit, $806.25, a lien was reserved upon the land, by their deed of
The said David G. Sayers and Henry Harrison in and by ■their said deed convenanted that they would warrant generally ■the lands thereby conveyed; that they had the right to convey the same to the said party of the second part; that the said party of the second part should have quiet possession of the ¡said land; that they would execute such further assurances as might be requested; and that they had done no act to encumber •the same.
There is also in the record a deed made by Joseph Mullins to-Joseph I. Doran, bearing date on the 15th day of July, 1884,, by which said Mullins granted and released all his claims in'and'
The original bill, bill of review, amended and supplemental bill, and bill of revivor filed in the cause by plaintiffs, state all of the foregoing facts, and many others. It is shown by the record, and conceded by counsel, that the appellees, plaintiffs below, have title to all of said entire tract, (which is in some of the papers described as three thousand two hundred and twenty-five and in others three thousand two hundred and twenty-six acres), except such claim or title thereto as appellant, Lambert, may have under the said deed of Sayers and wife to him, bearing date on the 34th day of November, 1891. The present controversy between the parties seems t‘o be as to the true meaning and legal effect of the said deed of Sayers and wife, and Harrison and wife to Doran, bearing date on the 17th day of November, 1883.
Appellees contend that this last mentioned deed conveyed to Doran the Jackson third, or one thousand and seventy-five acres-1 of said three thousand two hundred and twenty-six acre tract,, while appellant, Lambert, claims that it did not and does not convey said Jackson third, or interest; but that the third, conveyed to Doran thereby, was and is either the Ladd, or the Mullins interest. As before stated herein, .on the 4th day of March, 1883, less than four months after the execution of said deed' to Doran, Sayers and wife conveyed to Divine, the Brown-Ladd interest in the whole tract. It is not likely that Sayers,, at that time, had overlooked the fact that he had executed the deed to Doran as aforesaid. It cannot, with much semblance of-reason, be said that the deed last mentioned was intended by Sayers, to convey, or that it did convey, the Graham-Mullins interest to Divine. Besides, the deed of Sayers and Har
In the deed of Sayers and Harrison and their wives, respectively, to Doran, bearing date on the 17th day of November, 1882, one undivided third of the entire tract is granted to Doran. In order to identify the land thus conveyed, the boundaries of the three thousand two hundred and twenty-six acres are set out in the deed. Then it is stated therein that it is the same tract, from which, was taken and sold for non-payment of taxes due thereon, the Mary Ladd interest or third; that another third, to-wit: the Mullin’s interest, had also' been sold for delinquent taxes thereon; and that both of said interests had been conveyed by deeds, to Sayers, the purchaser thereof, giving the dates of said last two mentioned conveyances. The interest thus fixed and conveyed by Sayers and wife and Harrison and wife to Doran by their last mentioned deed is the Jackson one-third interest in the entire tract. This deed, after referring to the sales and deeds and the recordation thereof to Sayers as aforesaid further recites that said David G. Sayers has since sold to said Henry Harrison, one undivided one-half of said undivided two-thirds of said tract of land, but never made to hi-m a deed therefor, and for that reason the said Henry Harrison and wife join in the present deed with the said David G.
'The three several interest in the land had not been partitioned, allotted or designated. At that time, November 17, 1883, but one of said undivided thirds remained unconveyed by Sayers. Harrison had already, with Sayers, conveyed to Doran his undivided half interest in the Mullin’s undivided -one-third of said tract of land. He was entitled to a one-half interest in one other undivided third of said entire tract. There 'being none other than the Jackson interest remaining uneon-■veyed, Harrison was entitled to his one-half interest therein. For that reason, it seems, he joined with Sayers in the deed of November 17, 1882.
By adopting this view, we take the practical construction put ■upon the whole transaction by the parties themselves. The -three tax deeds to Sayers, the two deeds from Sayers and others ■to Doran, and the deed from Sayers and wife to Divine, are Thus made consistent with each other, and given full force and - effect. No violence is thereby done to the rights of the parties thereto. Practical construction of contracts is that given to ■agreements by the parties themselves by acts subsequently done •with reference to the contracts. To such exposition of contracts • the courts pay high regard, and will effectuate it if they can. do •so consistently with the rules of law. Hammon on Contracts, -■section 399. Sayers derived title to the whole of said entire tract by and through the three several tax deeds to him. Whether such title was perfect or imperfect, it is not necessary -to decide. While it is shown that Mullins brought a suit -against Sayers attacking the tax deed, by which his interest in the land was conveyed to Sayers, and the Jackson heirs also instituted three several suits to set aside the tax deed, which .-granted their interests in the land to Sayers, yet it must be
The deed last mentioned, however, is not important in the disposition of the case. As we have shown, the title of Sayers • to the whole of the three thousand two hundred and twenty-six. acres and to each undivided third part, thereof, - was acquired by him through and by the said three tax deeds, neither of which was ever set aside or canceled. The recital in the said Mullins • deed made more tlidn three years after the deed of Sayers and others to Doran confirmatory of Doran’s title airead}'' vested,. being the language of Mullins, could neither contradict Doran' of any title, or be set up as an estoppel in this suit against his • grantees.
As between the original parties, a recital unnecessary to the • conveyance will not operate as an estoppel. 2 Devlin on Deeds,. section 995. A party making a deed is not estopped as between the original parties to it, by recitals unnecessary to the convey- ■ anee. Osborn v. Endicott, 6 Cal. 149. Eecitals in a deed estop all parties and privies, as a general rule, but this rule does not extend to mere description or non-essential averments. 65 Am. Dec. 498. In the deed of July 15, 1884, the recital that it was • the same interest and claim which was conveyed by Sayers and ' others by their deed of November 17, 1882, was unnecessary - and non-essential to the conveyance by Mullins of his interest in the land, if he then had any interest therein.
A mistake in the recitals of a deed, referring to a previous • deed of marriage settlement between the grantors, may, in equity, be shown by the grantees, by introducing in evidence.: the • deed referred to in the recitals. Bower v. McCormick, 23 Grat. 310. A recital in a deed only operates as an estoppel in eases in - which the declaration of the grantor would be evidence. A re- -
Eeverting to what has been said, it will be seen that. Sayers- and Harrison, and their wives, respectively, and Graham, by their deed of October 27, 1881, conveyed to Doran, the three-said several tracts of land, to-wit: eight hundred and twenty, eight hundred and twenty and one thousand and seventy-five-acres, respectively, lying on the dividing ridge, Horsepen Creek and Big Creek, the latter tract being the Mullins interest in the-three thousand two hundred and twenty-six acres. The consideration stated in the deed is $3,960. $1,980 was paid in cash,, and the balance $1,980, was to be paid in twelve months fronu that date. A lien upon the land was reserved by Sayers and Harrison in the deed to secure the payment of the unpaid purchase money, to-wit: said $1,980. By their deed of release-bearing date on the 23rd day of October, 1882, said Sayers and Harrison, acknowledged the receipt from Doran of $1,980,. which, with the like amount theretofore paid to them by him, was in full payment for the tract of land conveyed by them to-Doran by their deed of October 27, 1881, recorded in Deed Book No. 5 at page 399; and they thereby released and discharged the-said Joseph I. Doran of and from all claim and demand under-said deed, and especially released and discharged the said land thereby granted of and from the vendor’s lien for rhe balance ' of purchase money expressly reserved by them in said above-recited deed.
On the same day, to-wit: on the 23rd clay of October; 1882,. said David G'. Sayers and Henry Harrison, by their certain writing signed and sealed by them, and bearing the date last aforesaid, bargained, sold and conveyed to Joseph I. Doran, and his heirs in fee simple, with warranty of title, covenants-of quiet possession and freedom from incumbrance, a certain tract or parcel of land situate in the county of McDowell, containing 1,075 acres, more or less, adjoining the lands of Joseph I. Doran, and J. H. Divine, and bounded as follows: “Beginning-at part of a tract sold by us to Jos. I. Doran on Sand Lick.” It is provided in the writing “that the party of the second part
The said Deed of Mullins to Doran of July 15, 1884, was •executed for the consideration of two hundred and fifty dollars, the receipt of which is acknowledged by Mullins in the •deed. There is also in the record a receipt of Mullins to Doran, bearing date on the 15th day of July, 1884, which is endorsed •on the deed, for said two hundred and fifty dollars; and also •a receipt of Harrison and Sayers to Doran, bearing date on the 16th day of July, 1884, in the words and figures following: '“Received of Joseph I. Doran, two hundred and fifty dollars to be a credit on the purchase money for certain lands sold by the undersigned to said Doran, lying in McDowell county, West Virginia. And a lien reserved in Ihe conveyance of said land for part of the purchase money; and this payment we are to credit on the margin of the deed book in which said conveyance is recorded.
(Signed) Harrison and Sayers. By H. Harrison.”
By their certain deed of release, bearing date on the 29th day of April, 1886, Harrison and Sayers and their respective wives thereby demised, released, quit claimed and forever discharged the said tracts, or parcels of land, and particularly, all those certain three tracts or parcels of land conveyed by Henry Harrison et ux at al, by deeds, dated October 27, 1881, November 17, 1882, and November 17, 1882, respectively, recorded in McDowell county, West Virginia, in Deed Book No. 5 at page 399, No. 6 at page 43, and No. 6 at page 40, respectively, situate in said county, one thereof beginning * * the other thereof situate on the waters of Sand Lick Creek, and on the waters of Spice Creek, on Laurel Branch, and other small branches, but mostly on Sand Lick Creek, all waters of Tug River, adjoining a tract of William P. Cecil of six hundred and sixty-two acres; a tract of James B. Harman of one hundred nnd thirty acres, and bounded as follows: Beginning at two
Therefore, the facts conclusively established are, that Sayers acquired title by his tax deeds and otherwise to all of the tract of three thousand two hundred and twenty-six acres of land; that he sold, but did not convey, to Harrison an undivided half interest in two of the undivided thirds of said entire tract; that Sayers conveyed one of the undivided thirds, to-wit: the Ladd interest to Divine, but Harrison did not join in that deed; that Sayers, Harrison and their wives, respectively and Graham sold and conveyed to Doran the Mullins interest in said land, ’for which Sayers and Harrison received the purchase money and executed and delivered to Doran a release of the said vendor’s lien on the 23rd day of October, 1882; that, there being but one undivided third of the land then unsold and uncon-veyed, to-wit: the Jackson third, Harrison was entitled, as between Sayers and himself, to one undivided half thereof; that Sayers and Harrison then executed the writing to Doran of
This leads us to a consideration of the legal effect of the • covenants in the deed of Sayers and Harrison to Doran, of the 17th day of November, 1882.
In Burtners v. Keran, 24 Grat. 42, it is held that if a per-son conveys land with general warranty, and does not own it at ■the time, but afterwards acquires the same land, such acquisition enures to the benefit of the grantee, because the grantor is estopped to deny against the terms of his own warranty, that he had the title in question; but it does not operate actually to transfer the estate subsequently acquired. The court cites ■4 Kent. Com. 98: “If the conveyance be with general warranty, not only the subsequent title acquired by the grantor will enure by estoppel to the benefit of the grantee, but a subsequent pur- • chase from the grantor, under his after acquired title is equally • estopped, and the estoppel runs with the land.” Baines v. Walker, 77 Va. 92. Mr. Justice Story, in Carver, v. Jackson, 4 Pet. 86, says: In the next place it shows that such estoppel binds all persons claiming the same land, not only under the same deed, but under any subsequent conveyance from th'e same party; ■that is to. say, it binds not merely privies in blood but privies in estate, as subsequent grantees and alienees. In the next place, it shows that an estoppel which (as the phrase is) works ■on the interest of the land, runs with it into whosoever’s hands the land comes. In Myers v. Croft, 13 Wall. (U. S.) 291, it is held, that a grantor not having perfect title, who conveys for full value is estopped, both himself and others claiming by subsequent grant from him, against denying title; a perfect title
Appellant, in his answer to plaintiff’s bill, in part says: 'That he is an innocent purchaser, for valuable consideration, without notice, actual or constructive, of any real or pretended ■claim of plaintiffs, the land in controversy being unoccupied, wild and uncultivated, and he having had no actual notice in any way, and no constructive notice. He admits "that his co-defendant, D. G-. Sayers, who is his grantor, represented to 'him that he, (Sayers), having compromised with the heirs at law of Joseph Jackson, Jr., had a perfect and indefeasible title ■to said land, and that respondent having seen the conveyance ■to Sayers from the Jackson heirs, dated October 21, 1891, * * * purchased the land.” Appellant contends that there is nothing in the deeds hereinbefore, and hereafter referred to, sufficient -to put him on notice that the Jackson interest had been purchased by Sayers, or conveyed by him and others to Doran. 'The tax deeds to Sayers for the Mullins and Ladd interests, and the deeds from Sayers and others to Doran, and from 'Sayers and wife to Divine for those interests, respectively, were each on the record in the proper office, when Lambert took his deed from Sayers. Lambert admits that said deeds were on the record. In the deed from the Jackson heirs to Sayers, the tax sale and tax deed to Sayers for that interest are referred to. The tax deed last mentioned was also recorded at that time, ■as well as the said option, and the subsequent deed of Sayers and Harrison to Doran.
It is further shown by the evidence that Lambert was in the ■employ of the plaintiffs, or the company for which they are trustees, as their agent; that his employment began in the latter part of 1888, or early part of 1889; that he received a monthly salary-for looking generally after their interests, namely, plae-
In Fidelity Co. v. Railroad Co., 32 W. Va. 244, it is held that where a subsequent purchaser has actual notice that the property in question was incumbered or affected, he is charged constructively with notice of all the facts and instruments to the knowledge of which, he would have been led by an inquiry into the incumbrance or other circumstance affecting the property of which he had notice. Notice is actual when the purchaser knows of the existence of the adverse claim, or perhaps, when he is conscious of having the means of knowledge, and yet does not use them; and it is immaterial whether his knowledge results from direct information or is gathered fro in facts and circumstances. Minor Ins. Vol. 2, 978. Whatever puts a man upon inquiry amounts, in judgment of law, to notice, provided the inquiry becomes a duty, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. 16 Am. & Eng. Enc. Law, 792, and cases cited. To entitle an innocent purchaser without notice to protection in equity, the text books do not’ assert, nor has any case been found to adjudge that he must
Under the facts and circumstances of this case, as disclosed by the record, we must hold that Lambert was not an innocent, purchaser for a valuable consideration of the Jackson interest in said land, without notice of plaintiffs’ claim of title thereto, and ownership thereof.
Por the reasons stated, we affirm the decree.
■ Affirmed.