7 W. Va. 289 | W. Va. | 1874
This was an action in ejectment, brought in the county of Harrison. There was an office judgment had .against-the defendant at rules on the first Monday in May, 1869. Afterwards, at a circuit court held for said county, on the 27th day of May, 1869, the cause came regularly on the docket, and the plaintiff and defendant appeared in
“This deed made this 9th day of December, 1863, between Shadrach Hurst and Catharine, his wife, of the county of Harrison and State of West Virginia, of the one part, and Martin Van Burén Hurst, of the same county and State of the other part, witnesseth :
“That the said Shadrach Hurst and Catharine his wife, for and in consideration of the sum of one dollar, have granted, bargained and sold unto the said Martin V. B-Hurst, his heirs and assigns forever, a certain piece or par'cel of land, lying in said county of Harrison on Owen Davis' Fork of Limestone creek, and bounded," <&c\ (the boundaries the same as contained in the declar
This deed was signed, sealed and acknowledged by Shadrach Hurst and wife on the day of its date, and duly admitted to record in the Becorder’s office of said county, on the 30th day of January, 1864. And also, after the plaintiff had given to the jury evidence tending to prove, that after the date of the said deed, the plaintiff continued in the possession of the land therein mentioned, claiming the same as his property, until the first day of January, 1867, and with the consent and approval of the defendant occupied the land and claimed the same as his own, during his life, and still claims the same. And after the defendant had admitted in court that he did not claim the land as tenant of the plaintiff, but that he claimed the same adverse to him, and in fee simple, the said defendant gave evidence to the jury tending to prove the following facts, viz: That at the time of the execution of the said deed, the plaintiff delivered the possession of the land therein mentioned to the defendant, who then took possession thereof and continued to hold the same ever since, claiming the title thereto; that afterwards, on the 1st day of January, 1864, the plaintiff sold and delivered to the defendant all'his personal property, including his stock on said land, which was a part of his
To which instructions, and each of them the defendant objected, and moved the court to instruct the jury as follows:
“First. If the jury believe from the evidence that in the execution of the deed from the plaintiff to the defendant of the 9th of December, 1863, it was the intention and purpose of the grantor to pass the legal title, presently, to the grantee, they will give such effect to the deed in determining the issue before them.
“Second. It is proper for the jury to consider the acts and declarations of the plaintiff and defendant in relation to the ownership and control of said land since the 9th day of December, 1863, and prior to the institution of this suit, to determine whether the right of possession thereof was conferred upon the defendant by the deed of the former date.
“Third. If the jury shall believe from the evidence that the land in controversy is the same land embraced in the deed from the plaintiff, dated the 9th day December, 1863, and offered in evidence by the jdaintiff, that they are to consider the said deed as passing, in presentí, the absolute fee simple title to the land.”
To giving the instructions so asked by the defendant the plaintiff objected. The court overruled the defendant’s objections to the instructions asked by plaintiff, and gave them to the jury as asked, and sustained the objections of the plaintiff to the instructions asked by the defendant.. By bill of exceptions number two of defendant, it appears that upon the trial of the cause it was admitted by the parties, that the plaintiff, on the 9th day of December, 1863, was in possession of and the
“First. If the jury shall believe, from the evidence that the .land in controversy is the same land embraced in the deed from the plaintiff, dated the 9th day of December, 1863, and given in evidence to the jury by the plaintiff; and if they further believe from the evidence that the plaintiff, at the time of the institution of this suit had no other right to recover the possession of said premises against the defendant than his previous ownership and rightful possession of the premises together with any interest thereto retained, or reserved, in said deed, then they must find for the defendant.
“Second. And if the jury shall further believe from the evidence the plaintiff put the defendant in possession and has no other right to recover the possession of said premises than his previous rightful ownership and occupancy thereof, and the reservation therein contained in the conclusion of said deed, that they must find a verdict for the defendant.”
To the giving of which instructions by the court, the plaintiff objected, and the court refused to give the instructions, and the defendant excepted. The questions
It is true that when the language used is susceptible of more than one interpretation, it has been held that courts will look at the surrounding circumstances, existing when the contract was entered into, the situation of the parties and of the subject matter of the instrument; and sometimes when the words are ambiguous the courts will call in aid the acts done under it, as a clue to the intention of the parties. See French v. Carhart, 1 Comstock (N. Y.) 109. But in this case the language is not so ambiguous as to admit, or require such evidence to a proper understanding of the meaning of the parties as to the character, quality and extent of the estate intended to be reserved by the grantor to himself. I think it is clear upon full consideration that the plain purpose and legal effect of the deed in question, was, and is, to convey to the grantee, an estate in fee simple to commence on the death of the grantor, and to reserve to the grantor an estate for and during, his life, in the lands ; and that parol evidence of acts or declarations of the parties, or either of them, after or at the time of the execution of the deed, to enlarge, explain, restrict or alter the plain legal effect
JUDGMENT Affirmed.