91 W. Va. 776 | W. Va. | 1922
This writ of error goes to a verdict and judgment for the defendants, in an action of ejectment in which the plaintiff claimed by his declaration, four tracts of land containing respectively 280 acres, 25 acres and 8 poles, 3.7 acres and 3 acres. Before the trial, he eliminated the 3.7 acre tract. By a written disclaimer, the defendants conceded' to him the tract containing 25 acres and 8 poles and part of the 280 acre tract. The tract last mentioned is described in the proceedings and evidence as the Home Place and the 3-acre tract as the school house clearing’ or lot. The rights of the parties are determinable in a very large measure, by docu
The deed under which the plaintiff claims, bearing date, February 13, 1919, refers to a former deed dated, November 10, 1909, and partially adopts it for description and identification of the subject matter of the grant of the later deed. The earlier deed granted only the timber on portions of the 2‘,000-acre tract conveyed by the later one and on a large additional area. By it, C. L. McClung and Amanda McClung his wife, conveyed to J. 0. McClung and L. E. McClung the timber on land described by metes and bounds, as containing 5,208.8 acres, from which there was excepted the four small tracts hereinbefore referred to and a 100-acre tract called the O. G. McClung tract and a 263.4-acre tract called the R. 0. McClung tract, which were supposed to have a combined acreage of 675.9. After specification of the acreage of the entire boundary, the deed says the small tracts just mentioned were "to be deducted” and "excluded” and were "not conveyed.” At the end of the deed, there is a stipulation saying: "It is hereby agreed a resurvey of said certain reservation of 675.9 of cleared or hacked land is to be made and if the same is found less or more to be adjusted upon the basis of $10.00 per acre.” This deed described the land embraced within the exterior boundary as being situate "On the water shed of Meadow Creek Hominy Creek Mill & Laurel Creek in Meadow Bluff District in the County of Greenbrier W. Va.” With the 100-acre and the 263.4-acre
. As has been stated, the timber deed contained a stipulation for a resurvey of the tracts excepted therefrom. It conveyed the timber, however, with reference to a survey made by one Isaac Nutter, prior to the date thereof, for the purposes of a contemplated conveyance to one W. A. Porter, which was never consummated. That survey was made in the years 1905 and 1906. The reference to it in the deed of November 10, 1909, reads as follows: “The parties of the first part hereby grant and convey -the timber as aforesaid to the parties of the second part or their assignees on the. land hereinafter described giving the exterior boundaries
The evidential tendency and import of the recital in the ■deed of April 22, 1919, conveying to the plaintiff the 2-acre tract excepted from the deed of February 13, .1919, to the effect that it is the same tract that was ex■cepted from the timber deed under the designation, “Re•served at School House, ” -has been observed. If it is one of .the tracts excepted from the timber deed, exception thereof from the operation of the deed to the plaintiff is an admission of intent to include in the deed to the plaintiff, all of the tracts excepted by the timber deed, lying within the -watershed of Meadow Creek, and then to except one of them. 'The defendants now claim their deed to the plaintiff did not .include any of those tracts, but, if they deemed it necessary to except one of them from their deed to the plaintiff, to ■keep it from passing by that deed, the exception carries an implication that they were so included, in so far as they were not excepted. Materiality and potency of the recital -are, therefore, clearly manifest. To avoid its effect, the defendants introduced testimony tending to prove the two tracts are not identical and that the recital is clearly erroneous. The defendant, C. L. McClung, was not permitted so ■to testify, because the trial court thought he could not be ■allowed to contradict the terms he had used in his deed; but -five other witnesses were permitted to testify, over objections of the plaintiff, that the two-acre tract excepted from the deed to the plaintiff, described as being at the saw mill on •the Nicholas Road, and the three-acre tract excepted from the 'timber deed under the designation, “Reserved at the School House,” are separate and distinct tracts lying distant from •each other, about a quarter of a mile. The basis of the objections to this testimony, though not very clearly stated,
It is impossible to perceive in the terms of the two deeds the high degree of certainty and definiteness claimed in the argument for the plaintiff in error, as to what was granted ■and excepted. Contrary to the fact, the deed of February 13, 1919, seems to assume land was granted by the deed of November 10, 1909, for it describes the land conveyed as having been included in the timber deed. That deed in-
This practically contemporaneous conduct on his ¡part is a potent factor in the determination of what was meant by the loose description contained in the deed of February 13, 1919. In its terms, we find no fixed and rigid signification binding upon the court or the jury. They are descriptive of the subject matter and are not words of grant, except in so far as they are connected with the disposing terms of the deed. As descriptive matter, they define, limit and explain the disposing words, and, if, properly interpreted, they do not include the tracts excepted by the timber deed, the deed in which they are found do not carry those tracts. Their true meaning and intent. depend upon facts and circumstances in the light of which they were used and the sense in which they were understood by the parties, as shown by their subsequent conduct. Armstrong v. Ross, 61 W. Va. 38; Chapman v. Goal Co., 54 W. Va. 193; Caperton’s Adm’rs. v. Caperton’s Heirs, 36 W. Va. 486. In finding a verdict for the defendants, under the terms of the deed, viewed in the light of the facts and circumstances disclosed by the evidence, including the conduct of the parties indicating their interpretation of the instrument, the jury acted well within their province and the court properly overruled the motion for a new trial.
Seeing no error in the judgment, we will affirm it.
Affirmed.