106 Va. 701 | Va. | 1907
delivered the opinion of the Court.
The case presented on this appeal is as follows: Geo. W. Settle and wife executed three certain deeds of trust on real estate in Rappahannock county to secure to John Q. Rhodes
On the 15th of August, 1903, Settle and wife, by deed duly recorded, conveyed to Mollie R. Reid certain lands described as follows: “All the land embraced within the boundary of what is known as the ‘Original Jordan’ tract inherited by the said George W. Settle from his father, Thomas H. Settle, deceased, except that part of said tract embraced within the boundary of a certain deed of trust to James M. Dearing, trustee, to secure the payment of a certain debt due John Q. Rhodes, dated September 30, 1891, said boundaries being as follows.” The deed then proceeds to set out precisely the boundaries of the land as contained in said deed to Dearing, trustee, of September 30,
Mrs. Reid borrowed the consideration, $3,000, to be paid to Settle for the lands conveyed to her, as stated, securing the payment of the loan by trust deed on this land, as well as upon .an additional tract of land owned by her, and the $3,000 was to be applied to the liens upon the said land acquired by Mrs. Reid from Settle, estimated to amount to $3,000, including the lien of Rhodes for the $1,000, secured by the trust deed of December 22, 1892, which amount, with accrued interest there•on, was paid to him on July 1, 1904. At the time of said purchase by Mrs. Reid of Settle and wife, Dearing, as trustee, and at the request of Rhodes, had advertised for sale the land embraced in the deed of September 30, 1891, and in his advertisement had followed the exact terms of description given in the deed, which have been quoted in full above.
A controversy having arisen between Settle and Rhodes, Settle, on September 12, 1903, obtained an injunction against •the sale advertised by Dearing, trustee, and at the second October rules taken in the clerk’s office of Rappahannock Circuit ■Court, Rhodes filed his answer to the bill upon which the injunction was granted, his answer bringing forth for the first time, as contended by Settle, a suggestion of a controversy over ■the construction of the deed under which the sale by Dearing, trustee, was advertised,- or as to the property embraced in it.
The contention made in the answer is, first, that the deed •called for one hundred acres of land, and that a true construction of this deed would make the description override the lines fixed by the deed; and, second, that the true contract between the parties was that Rhodes should have one hundred acres, ¡and that the deed should be reformed and the lines so run as to embrace one hundred acres.
Upon the filing of his answer the deposition of Rhodes was taken, and the contention in the deposition conforms to the ¡averments in his answer.
The county surveyor, acting under the order of the court, upon a view of the premises, with the deeds before him, platted the lands as purchased by Mrs. Reid of Settle. Surveys were also made by the county surveyor of the land which Rhodes-claimed he had a right to have sold to pay the debt secured by the deed of September 30, 1891, the first of which, controlled by the boundaries as set forth in the deed, shows the amount’ of land embraced therein is 55.5 acres. The second was made under the decree and instructions of the court, whereby 23-23.80* acres of land claimed by. Mrs. Reid were added to the first survey, the whole amounting to approximately 79 acres, 21 acres short of the 100 acres which the court intended to be embraced in the survey made under its instructions. At the December term, 1904, an exception was taken to this second survey of 79 acres by Rhodes, and a decree made which, after holding that the deed of September 30, 1891, operated to convey the land embraced in the calls of said deed and all the land “north of the house and orchard,” ordered another survey to be made
It is true that appellant is the sister of George W. Settle, but there is no proof whatever in the record to show that she did not act in the utmost good faith in buying the property of her brother, who was in financial straits, not only paying a fair price therefor, but going even to the extent of borrowing money with which to make the purchase, out of which appellee Rhodes was to be and was paid what was due him from Settle, secured on a part of the property she so purchased. Ror is there any evidence offered to prove that appellant had actual knowledge of any right in appellee Rhodes to have the said deed of September 30, 1891, reformed, so as to give him right to sell 100 acres of the “Original Jordan tract” to satisfy the debt thereby secured, regardless of the descriptive boundaries contained in the deed. Therefore, whatever notice appellant had of such a right in appellee is such constructive notice as that deed,
In Hunter v. Hume, 88 Va. 24, 13 S. E. 305, it was held:
*707 “Particular boundaries govern general description of land; and ■a false description is rejected and the instrument takes effect if a sufficient description remains to ascertain its application.”
“Quantity is regarded as the least certain mode-of describing ■ land, and hence must yield to description. by boundaries and distances.” See also Devlin on Deeds, sections 1038, 1039. Flanary v. Kane, 102 Va. 547, 46 S. E. 312, 681, and eases cited. ' •
. It is difficult to see how any one connected in any. way with -the several interests involved in this .suit would, ever have contemplated that the deed in-question conveyed more land than .’the boundaries given, upon- their face, appeared to convey. ■ '
•' Rot only was appellant without notice, actual or constructive, -of the contentions made, by appellee in this suit, but,' on the contrary, she had strong reasons to know prior to her purchase of: Settle that appellee had no idea that his deed in -question would take him east of a north '.and south line with the -house -and orchard, first,'because he had practically admitted this when he sought to secure a right of way from the land embraced in his deed to the Sam Settle land, upon which he also held a deed of trust, when, if the deed here in question, which had been in force for twelve years, enabled him to go west of this north and south line given therein far enough to embrace 100 acres within the call of his deed, the land over which he desired the right of way would have practically belonged to him; and, second, the advertisement that had been posted by Dearing, trustee, at the instance of appellee Rhodes, showed that no claim was laid to any land other than the land included in the boundaries of the deed.
In Florance v. Morien, 98 Va. 35, 34 S. E. 800, the opinion by Buchanan, J., says: “The recorded instrument is sufficient to give notice under the registry laws, if the property be so described and identified that a subsequent purchaser or encumbrancer would have the means of ascertaining with accuracy what and where it was, and the language used be such that if
In this case the deed measures up to the requirements of the opinion just quoted, and upon an examination of it appellant could have reached no other conclusion, we think, than that appellee could lay no claim to any land not included in the descriptive boundaries given in the deed. All of these boundaries, as is conceded, are definite and certain except one, and that boundary is made definite and certain by the require* ments of the deed as to how the line was to run establishing it.
The construction of the deed adopted by the court below is not only contrary to any and every claim made in the pleadings in the cause, but gave to the word “north” an interpretation which overrode the other descriptive words “west and north” of the house. The construction was evidently founded on the words in the deed “embracing all the land north of said house and orchard,” the word “north” being interpreted as embracing any land to the north of an east and west line, whether the same was directly north of the house and orchard or not. The land, as understood by the parties for twelve years or more, lies north and west of the house. By the first survey made by the county surveyor the line, and the only line as to which there is a dispute, as run by him, fulfills every description of the deed. It is true that it does not embrace 100 acres of land, but neither does the construction of the deed nor the survey approved in the decree appealed from.
In our view of the case there is no ground whatever upon which the deed should be construed so as to make the call “one hundred acres of land” override the lines fixed by the deed, nor for reforming the deed and so running the lines as to embrace 100 acres.
Whatever may be the rights of appellee Rhodes, as against Settle, which is a question not requiring our consideration, he fails to show that he is entitled to the relief he asks as against
Reversed.