103 F. 243 | 4th Cir. | 1900
after stating the facts as above, delivered the opinion of the court.
This appeal requires us to give interpretation to the instrument of April 10, 1882, which in terms "grants and conveys to the railway company the full and free right of way, of the width of 50 feet, with necessary grounds for cuts and fills for the road of said company in, upon and through the lands of Pugh,” upon the line surveyed by the engineer of the company, “which right of way is hereby granted and conveyed for the consi ruction, building, and use of the road of the said company.” If it had ended here, there could be no doubt that it was intended to convey simply the right of way, an easement, and not the land itself. The doubt has arisen out of the concluding words, which are as follows;
“And the said Pugh does also hereby covenant and agree to execute and acknowledge in due form of law, when required by said company, a deed conveying to said company in fee simple the land hereinbefore described.”
In a clause added at the foot, it is provided that the sum of $90 should be accepted in full payment for certain trees destroyed upon the right of wav. No. deed was demanded until shortly before the commencement of these proceedings, and none was ever actually executed. The court below held that it was immaterial whether the deed was called for or not; that the defendants, having taken and held actual possession of the land for over 10 years without interference, had acquired an absolute title to the same; and the appeal impeaches the correctness of that conclusion.
The first rule of exposition, which governs every other, is that contracts should be so interpreted as to give effect to the intention of the parties; and while the words selected by the parties themselves as a symbol to denote their purpose are usually the primary source from which intention is drawn, and the best and surest guide to its discovery, yet being employed sometimes by designing persons to disguise rather than to express the true thought, and being liable to care
In Sweet v. Brown, 12 Metc. (Mass.) 176, there was an action for alleged breach of covenant; the defendant having conveyed “all my rights, title, and interest in and to” certain real estate, with covenants that he was lawfully seised in fee of said premises, that they were free of all incumbrance, that he had good right to sell and convey the same, and that he would warrant and defend the same against all persons. The court says:
“The covenants are in terms general, but in the construction of a deed we are to look at the whole deed, and the covenants are to be construed so as to give effect to the intention of the parties, so far as it can be done consistently with the rules of law. The warranty is of the premises which were granted and conveyed by the deed. But that was ‘all my right, title, and interest in and to that parcel of real estate situate,’ etc. It was not a grant of certain land in general terms, but of his title and interest in such land, and this particularly and fully expressed. The warranty must be taken in a limited sense. It must be restricted to his title and interest. The covenant here attaches to the estate and interest conveyed, and is not a general covenant of warranty of the whole parcel particularly described by metes and bounds. Such construction will reconcile all parts of the deed and give effect to each.”
The case of Moore v. McGrath, 1 Cowp. 9, is cited in Allen v. Holton, 20 Pick. 458, to sustain the proposition that every deed is to be construed according to the intention of the parties as manifested by the
There is no reasonable ground to doubt that the court would have ordered this deed to he reformed at the instance of the grantor, Pugh, if he had made it clearly to appear that it was his intention to grant only a right of way, and that he was misled by the grantee as to the effect of this form of expression, if it ivas intended to be claimed that by the use of the words “fee simple” he covenanted to convey an absolute estate in the lands, when he was led to believe that its effect was only to carry out the agreement made by him, which was to convey an easement simply. “Oourls will reform deeds where by mistake the words are made to convey other estate than the parlies intended, even though the mistake consists in the legal effect of the words used, while the words themselves were such as the scrivener intended to make use of.” 3 Washb. ReaJ Prop. 381.
We are of opinion that it. was the intention of the grantor to convey only a “right of way” and that the words chosen to effectuate that: intention have a well-known and universally accepted legal meaning, and describe the tenure, not. the land granted; that the railway company therefore took only an easement in the land, and not the land itself: that the covenant is not to be construed so as to enlarge the grant; and that the railway company is not entitled by virtue thereof to anything more than a formal deed in fee simple of an incorporeal hereditament. It follows that the decree of the circuit court is reversed. and the case remanded for further proceedings in conformity with this opinion.