Lagorio v. Dozier

| Va. | Jun 13, 1895

Keith, P.,

delivered the opinion of the court.

This is a writ of error to a judgment of the Corporation Court of the city of Norfolk, rendered in an action of ejectment. The record discloses the following facts:

On the 31st of August, in the year 1860, a deed was entered into between Robert Rhea, of the one part, and Clement Hill and Mahala Hill, his wife, of the city of Norfolk, of the other part. The deed is as follows:

“This deed made this thirty-first day of August, in the year eighteen hundred and sixty, between Robert Rhea, of the city of Norfolk, on the one pait, and Clement Hill and Mahala H., his wife, of the city of Norfolk, of the other part.

“Whereas, the said Robert Rhea is seised of a certain lot of land, lying and being situate in the city of Norfolk on the corner of Chapel and Falkland streets, and bounded as follows : Beginning at a point three feet from the line of the lot of the said Robert Rhea, now occupied by Mrs. Jane Ashley, and running on a line parallel to and three feet distant from the line of the said lot now occupied by the said Ashley (for the purpose and so as to leave a three-foot lane between the lot now conveyed and the said remaining lot of Robert Rhea), to the line of the lot of James E. Barry; thence eastwardly along the line of the lot of the said Barry to Chapel street; thence along the line of Chapel street to its intersection with the line of Falkland street; thence along the line of Falkland street to the place of beginning. And whereas, the said Clement Hill and Mahala H., his wife, are seised of a certain lot in the city of Norfolk, lying and being on the corner of Church and Moseley streets, bounded as follows: Beginning at the line of Benjamin Hill at its intersection with Church street, and running along the line of the lot of the said Benj. Hill one hundred and nine feet to the line of the lot of Mary Brown; thence along the line of the lot of Mary Brown, thirty feet to Moseley street; thence along the line of Moseley street, to the intersection with Church street; thence along Church street to the place of beginning. And whereas, the said parties of the first and second parts are desirous of exchanging their said lots, the one for the other, and upon the terms and for the considerations hereinafter expressed; now this deed witnesseth:

“That the said Robert Rhea, for and in consideration of the premises and the grants and covenants hereinafter mentioned, doth grant, with general warranty, all that lot of land lying and being in the city of Norfolk, on the corner of Chapel and Falkland streets, as hereinbefore described, with the appurtenances, reserving to him, the said Rhea, the three-foot lane next his said lot, now occupied by Mrs. Jane Ashley. And this deed further witnesseth that the said Clement Hill and Mahala H., his wife, for and in consideration of the premises and grant and covenants herein contained, and the sum of seven hundred dollars to them in hand paid, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth grant, with general warranty, unto the said Robert Rhea, all that lot of land with the appurtenance thereto belonging, lying and being in the city of Norfolk, on the corner of Church and Moseley streets, and bounded by the lots of Benjamin Hill and Mary Brown, hereinbefore described.

“And the said parties of the first and second parts do mutually covenant and agree that they have good right to make conveyance of the lots of land hereby conveyed to each other; that they have done no acts to encumber the said lots; that they shall have respectively quiet possession of said lots, free from all encumbrances; and that they will mutually execute such further assurances of the said land as may be requisite.

Witness the following signatures and seals.

Robebt Rhea. [Seal.]

Clement Hill. [Seal.]

Mahala H. Hill.-[Seal.]”

This deed fulfills all the essential conditions of a deed of exchange. The only peculiarity about it, and the one out of which this controversy arises, is that it wholly omits to name any grantee from Robert Rhea of the lot or parcel of land conveyed by him; but we apprehend that this omission may be supplied and full effect may be given to the instrument, if, upon an inspection of the deed, enough shall appear to enable the court to say in 'whom the title to the lot vested. It is a familiar principle that courts -will so construe the contracts of parties ut res valeat magis guam gpereat. Applying this rule, and remembering always that it is the duty of courts to give effect to the true intent of the parties, ascertained, not by straining the signification of words so as to reach what to the court may appear a more rational or more equitable construction than that to be deduced from the language actually employed, but by construing the language used in accordance with its common and usual acceptation, and searching the entire writirg in which the parties have seen fit to set out their agreement. Confining our view to the deed itself, we find that it declares that Clement Hill and Mahala, his wife, are seised, that is to say, possessed, of a freehold in a lot of land, describing their interest therein in the precise terms employed to describe the interest of Robert Rhea in the lot conveyed by him. Robert Rhea is named as ‘ ‘party of the first part.” Clement Hill and Mahala, his wife, are named as “of the other part.” The lots owned by them are described, and the instrument states that the parties of the first and second parts, being seised of their respective lots, desire to exchange them, the one for the other; Robert Rhea, paying in addition $700 in cash to Clement Hill. Apt words to convey the lots are employed, and the usual covenants are introduced; the only thing unusual about the paper being, as before observed, the omission of the names of the grantees from Rhea. This being a deed of exchange the party who granted to Rhea must of necessity be his grantee. The deed describes Clement Hill and Mahala, his wife, as the party “of the other part” (not the one more than the other) and unless some rule or principle of law, or of construction, can be shown, which, under such circumstances, requires the exclusion of Mahala, we can see no reason, in the nature of things, why her name should not be introduced as well as his.

They are declared to be seised of the lot which they conveyed to Rhea; they (the two together) and not either one of them, by the express terms of the deed, are the parties “of the other part, ’ ’ and it is with them, as such parties and not with either of them individually, that the party of the first part contracts; and finally “the said parties of the first and second parts do mutually covenant and agree that they have good right to make conveyance of the lots of land hereby conveyed to each other; that they have done no acts to encumber the said lots; that they shall haue respectively quiet possession of said lots, free from all incumbrances, and that they will mutually execute such further assurances of the said land as may be requisite.” It is to them unitedly and not to either of them individually, that Rhea must be held, under the terms of this deed, to have conveyed the lot. Does this result violate any rule or policy of the law? Is it a thing unheard of that a man should thus make provision for his wife ?

May not the relinquishment of her dower interest in the more valuable parcel of land have furnished the consideration for the interest thus vested in her by this deed ? If this be the legitimate construction to place upon this deed we have nothing to do but so to decide. But the idea seems to be entertained that this view does not reflect the intent of the parties, because it is alleged the whole consideration moved from Clement Hill. In the first place, there is nothing to show that such an intention existed as that Clement Hill, and he alone, should be the grantee in fee. That assumption, if not wholly gratuitous, rests for its sole support upon the deed from Capps to Hill set out in the record.

If the deed of August 31, I860-, as written does not accurately set forth the contract of the parties; if by mutual mistake it fails to contain, that which the parties intended it should contain, then we apprehend that a bill in equity is the proper mode by which to seek reformation of the instrument. Certainly, a court of law is powerless to furnish any such relief. We cannot, in the construction of this deed, look outside of its contents. It is plain and unambiguous.

To seek elsewhere for its true construction, would be in effect to reform it. If, by consulting other papers filed in the record, the construction of this deed is to be controlled, then, these papers are, in our judgment, inadmissible for any such purpose, for that would be, in effect, not to interpret this deed but to make a new one. Looking to this deed, and to this deed only, in order to ascertain the intention of the parties, there would seem to be no room for doubt that the names of both Clement Hill and Mahala, his wife, must be read into the deed, as grantees therein. This being the legal effect of the deed, it would seem to be clear that it vested the legal title jointly in them. If this be so, then any evidence showing or tending to show, that the consideration for the conveyance by Eobert Ehea moved from Clement Hill only, and that, therefore, the conveyance must be construed as intended for his benefit only, would be, in effect, to set up a resulting trust in Clement Hill, and this, we apprehend, cannot be done in a court of law. If, therefore, we were per-' mitted to look beyond the instrument for evidence to aid in its construction in a case in which the paper to be construed presented no ambiguity, the only effect of the evidence to which our attention has been invited, to-wit: the deed from Wilson Capps to Hill, dated the 6th of October, 1857—would be to show that the consideration for this exchange, consummated by the deed under consideration, moved from Clement Hill, and therefore created, or tended to create, a resulting trust in him. ’

But inasmuch as a court of law is incapable of dealing with interests of this nature, it would avail the plaintiff nothing in this case.

hi or do we think-that the deed of the 28th of September, 1860, from Clement Hill and his wife to George Hewton, throws any light, by which we can be guided, upon the difficulty in this case. It is true that deed conveys a part of the land which was conveyed by Robert Rhea to Clement Hill by the deed under investigation, but there is nothing in the deed to Hewton inconsistent with the construction placed upon the deed from Robert Rhea to Clement Hill and wife by the Corporation Court. The deed to Hewton recites that “it is the same piece or parcel of land which was sold and conveyed to. the said Clement Hill by Robert Rhea by deed of record in the clerk’s office of the court of the corporation of the city of Norfolk.” The fact being that it is not the same piece or parcel of land which was so sold and conveyed, but only a portion of it; and even though Clement Hill and Mahala Hill, his wife, had been jointly seised of the undivided tract, the most that could be made of this deed is that Clement Hill and "Mahala Hill, being so jointly seised, conveyed a part thereof to George JSTewton, the effect of which would be, with respect to the residue not conveyed, that Mahala Hill would be entitled to so much thereof as would make her share equal to that of her co-tenant, he being charged in the partition (had such partition been made) with the portion thus sold.

We are of opinion, therefore, that this assignment of error is not well taken, and that the Corporation Court did not err in holding that under the deed of the 31st of August, 1860, Clement Hill and Mahala, his wife, took a joint estate in fee in the lot of land conveyed by Robert Rhea.

The agreed facts in the case show “that Clement Hill was in actual, open, continuous, exclusive, and notorious possession of the land from the time of Mahala’s death until he conveyed it to A. Lagorio; that during that time he received the profits and paid the taxes; that A. Lagorio and those claiming under him have been in actual, open, continuous, exclusive, and notorious possession of the land from that time until the present. ’ ’ It appears that Mahala Hill died in 1864; that the plaintiff in error attained his majority on the 30th of April, in the year 1872; and that the deed to A. Lagorio of the land in controversy was made in August, 1881. Hpon the death of Mahala Hill, there having been no issue born to her marriage with Clement Hill, her interest in this land vested in her son, as her sole heir, and he became tenant in common with Clement Hill.

With respect to persons so situated, it is well settled that the possession of one, though exclusive, does not amount to a disseisin of the co-tenant. As was said by Judge Marshall in McClung v. Ross, 5 Wheat., 116" court="SCOTUS" date_filed="1820-02-14" href="https://app.midpage.ai/document/mclung-v-ross-6607981?utm_source=webapp" opinion_id="6607981">5 Wheaton, 116, “A silent possession, unaccompanied by any acts which amount to an ouster, or giving notice to the co-tenant that his possession is adverse, cannot be construed into an adverse possession. ’

It is held that the mere receipt of profits and the payment of taxes is not such an ouster. These principles seem to be thoroughly well established in this court. See Rowe v. Bentley, 29 Gratt. 760; Purcell v. Wilson, 4 Gratt. 16; Hannon v. Hounihan, 85 Va. 429" court="Va." date_filed="1888-09-20" href="https://app.midpage.ai/document/hannon-v-hounihan-6808207?utm_source=webapp" opinion_id="6808207">85 Va. 429; Creekmur v. Creekmur, 75 Va. 436.

We are therefore of opinion that the claim of adversary possession relied upon by the plaintiff in error, is not, under the circumstances of this case, sustained, and that the judgment complained of must be affirmed.

Affirmed.