78 W. Va. 19 | W. Va. | 1916
In this action of assumpsit for the value of 210 trees cut and removed from a tract of land containing 11.19 acres, founded upon a claim of title to the land, the jury returned a verdict for the plaintiff, in obedience to a peremptory instruction by the court so to do, given upon the assumption of lack of controversy as to the material facts, and judgment was rendered thereon.
. In its treatment of the issue as one of law, the court was manifestly right. The question of title depends altogether
It was made in a friendly suit in equity instituted for the purpose, among others not material here, of carrying into adjudication a verbal partition of a tract of land containing more than 400 acres, made in March 1899, by means of a survey marked out on the land, reduced to writing and platted, and an allotment of. the tracts or parcels, among the cotenants. The bill exhibited the plat and written description of the tracts and the decree confirmed the partition so made and adjudged, ordered and decreed that the parties thereto and their assigns have and hold in severalty the tracts or parcels allotted’to them therein, out of which some of them had made sales. Tract No. 1 described as containing 100 acres went to Amanda Mundy; tract No. 2, 87% acres, to S. T. Litz; tract No. 3, 87% acres, to Hutoka Mundy; tract No. 4, 87% acres to T. L. Knight and Rhoda J. Brooks, vendees of Sarah J. Dillion, one of the original cotenants; and tract No. 5, 87% acres, to Frank Brewster, Geo. Wool-dridge and Louerie Brewster, vendees of Geo. W. Marrs, one of the original eotenants. The dispute arises over the division line between tract No. 2, conveyed by S. T. Litz to William Day, the plaintiff, by a deed dated, January 9, 1908, and tract No. 3 still owned by Hutoka Mundy.
In the survey, copied in the decree as matter of description, this line is described as commencing at a corner stake near a large poplar, 40 pol.es distant from another corner common to said tract and tract No. 1, and running thence
If' the general, as well as the particular, description may be'considered upon the inquiry for the meaning and effect of the decree, its latently ambiguous character is manifest. That both are to be considered, when found in a deed, is placed beyond question by the authorities. Mylius v. Raine-Andrew Lumber Co., 69 W. Va. 346; Herbert v. Wise, 3 Call. 239. No reason for denial of the application of the rule, in the construction of a decree, is perceived. Both descriptions are primary matter in a decree as well as in a deed. They are here, undoubtedly, for the decree proceeds upon the assumption of identity of the subject matter of the two descriptions.
Ordinarily, a call in a deed for an identified monument or marked line controls and prevails over an inconsistent call for course or distance; but this rule and its application are generally declared in cases in which no additional cireupi-stance indicating contrary intention of the parties, is disclosed by the deed or admissible extraneous evidence. Monuments do not alvrays control. Brown Oil Co. v. Caldwell, 35 W. Va. 95; Clayton v. County Court, 58 W. Va. 253; Western M. & M. Co. v. Cannel Coal Co., 8 W. Va. 406. In all three of these cases, the presumption against intent on the part of the grantor to retain a long, narrow and practically useless strip of land, was held to be sufficient to overcome calls for fixed points, and to extend the conveyance beyond them, under general, or less definite, terms signifying intent to' convey up to a certain boundary or dispose of all of a certain tract. The general rule subordinating calls for courses and distances to calls for monuments, has for its purpose only the ascertainment of the intent and meaning of the parties, arid exceptions to it are numerous. State v. Herold, 85 S. E. 733. When the court has nothing before it, but the inconsistent calls, the call for the monument is allowed to prevail because it is deemed to be a more definite and certain expression of intention than the call for course and distance. When other circumstances appear, conclusively shoAving the call for the monument does not express the real intention and will not effectuate the plain purpose of the instrument, and that the calls generally regarded as inferior and less certain do ex
Here the purpose was to divide a tract of land among the owners thereof. It was not a ease of sale. Partition proceeds upon the basis of equality in point of value. These two lots were obviously regarded as .containing land of the same quality. Both the plat and survey call for equal areas in them, and so does the decree. The plat, survey and decree all call for a 40 pole line at the southern boundary, and, to make equality of area, a line of that length is required. For a period of about four years prior to the entry of.the decree, the parties claimed under a plat and survey which purported to give equal quantities of land in these two lots. By some oversight in the actual surveying, which the surveyor is unable to explain or account for, the end lines of the irregular parallelogram constituting tract No. 2 were made too short and those of tract No. 3, too long, to make the tracts con form to the purpose and expectation of the parties, if the marked line is to control. As it is obviously inconsistent. with the intention of the parties .and the plain purpose of the court, disclosed by the decree read in the light of the bill and its exhibits, we are constrained to except the case from the operation of the general rule' and give dominancy to the general description.
The deed from Litz to Day conveys all the former got under the decree. It, like the decree, contains two descriptions, one general and the other particular. It in terms con veys the land allotted to Litz in the partition suit and calls for a 40 pole line at the south and 87^ acres.
The defendant, purchaser of the timber on both tracts, had been notified of the plaintiff’s claim of title before it cut the trees on the strip of land in controversy, wherefore it cannot invoke estoppel.
These conclusions result in an affirmance of the judgment.
Affirmed.