67 W. Va. 639 | W. Va. | 1910
Lead Opinion
This is a suit for partition of four several tracts of land in Pocahontas county. Plaintiff alleges that he is the owner of an undivided one-sixth thereof; Victoria Totten of another sixth; the defendants Eflier and Belcher, jointly of a one-twelfth, and George W. Lambert of another twelfth, together constituting the one-sixth conveyed to W. L. Totten; and the Pocahontas Coal & Coke Co., of three-sixths undivided interest therein, constituting, as the bill alleges, the one-sixth,originally conveyed to Matilda J. Totten, and the two-sixths conveyed to Walter C. Totten and Boyd M. Totten, deceased, infant children of T. K. and Matilda J. Totten, who died subsequent to the conveyance thereof to them and inherited from them by their father, said T. K. Totten.
The Pocahontas Coal & Coke Co., denies that plaintiff and its co-defendants, -alleged to have such interests in said land, have in fact any interest therein. On the contrary it alleges that by deed from the said T. K. Totten and Matilda J. Totten, February 24, 1902, made in execution of the power of sale and rights reserved to them in a deed'of September 5, 1889, and now- calling for our construction, it acquired and now owns
The decree appealed from granted partition as prayed' for.
By deed of September 5, 1889, upon which the conflicting claims of the parties depend, the said T. K. Totten, in consideration of one hundred dollars, receipt of which is therein acknowledged, and “the further consideration of a good and peaceable life maintenance, * * * * bargained and conveyed” unto the said “Matilda J. Totten, his wife, and ¥m. L. "Totten, Major H. Totten, Boyd M. Totten, Walter C. Totten and "Victoria Totten” all of his estate real and personal, particularly described, including the land which the bill seeks to have partitioned. The deed recites that certain option contracts were outstanding for certain of the tracts conveyed, and provides that if the lands covered thereby should thereafter be sold and conveyed pursuant to said contracts, then the purchase money therefor should be thereby conveyed. The deed also contains a covenant on the part of the grantees binding them “to pay all debts made by the said T. K. Totten for the purchase of, goods north or elsewhere, also a fee to D. E. Johnston.” But the important provisions thereof calling for construction, and the one upon which the rights of the parties to the controversy mainly depend, are as follows: “And the said T. K. Totten claim and retain the power in this deed, if the family ever wants to move from the premises or if the said T. K. Totten & .wife think they can better their situation then -they shall be vested with the right and power to sell and convey anything embraced in this deed, that is to say, as long as the said T. El. Totten is living, and the said T. K. Totten does vest in himself the legal title to sell or dispose of anything or any part of any land or lot mentioned in this deed by the consent of his wife, if the family ever become needy of anything, and it is his opinion that it is advisable to do so.
■ The division of this deed, shall at the death of the said T. K. Totten be made equal between his wife, and all of the children now surviving and those that may survive.”
The Pocahontas Coal & Coke Company, appellant, by its
It is conceded on both sides that the polar star that should guide us in the construction of deeds as of all other contracts is, what was the intention of the party or parties making the instrument, and when this is determined, to give effect thereto, unless to do so would violate some rule of property. This rule has been often declared by this Court. Gibney v. Fitzsimmons, 45 W. Va. 334; Uhl v. Railroad Co., 51 W. Va. 106 and cases cited. In the latter case Judge BeaNNON says: "As to wills the rule has ever been that regardless of form or orderly parts, we must look.at the real intention; but this has not been the case in the construction of deeds. Deeds have orderly parts, technical words- of precise legal signification, and in times gone by those parts and words, and the strict rule of construction of them, have been rigorously observed often defeating the manifest intention. Modern construction,-however, has leaned towards the intention, overriding mere form and technical words, and nowadays it may be said that the intention must rule the construction in deeds as well as in wills. Humphrey v. Foster, 13 Grat. 653; Mauzy, v. Mauzy, 79 Va. 537; Lindsey v. Eckels, (Va., 1901) 99 Va. 668, show this to be the rule in Virginia; and Hurst v. Hurst, 7 W. Va. 289; and Goldsmith v. Goldsmith, 46 Id. 426; McDougal v. Musgrave, 46 Id. 509; and Bank of Berke
On behalf of appellees it is said tbat one of tbe rales of property well established is that “stipulations, reservations, exceptions, or conditions, in a deed, which are inconsistent with, or tend to depreciate or destroy, the estate or interest granted, are void”, and that repugnant words, clauses or conditions must be made to yield to the main purposes of the grant. Riddle v. Town of Charles Town, 43 W. Va. 796; Goldsmith v. Goldsmith, 46 W. Va. 426; Uhl v. Railroad Company, supra; Chapman v. Coal & Coke Co., 54 W. Va. 193. That another rule, of ancient origin, is that against restraints on the power of alienation. This rule is perhaps nowhere better stated than by the Supreme Court of the United States in Potter v. Couch, 141 U. S. 296, as follows: “The right of alienation is an inherent and inseparable quality of an estate in fee simple. In a devise of land in fee simple, therefore, a condition against all alienation is void, because repugnant to the estate devised.” Other cases relied and stating and applying these rules are McClure v. Cook, 39 W. Va. 579; Steib v. Whitehead, 111 Ill. 247, 251; Pynchon v. Stearns, (Mass.) 45 Am. Dec. 210; De Peyster v. Michael, (N. Y.) 57 Am. Dec. 470; Mandlebaum v. McDonell, 29 Mich. 78 (18 Am. Rep. 61); Anderson v. Cary, 36 Ohio St. 506 (38 Am. Rep. 602); Maker v. Lazell, 23 Am. St. Rep. 795; Latimer v. Waddell, (N. C.) 26 S. E. 122; Bouldin v. Miller, (Tex.) 28 S. W. 940; White v. Dedmon (Tex.) 57 S. W. 870; Jones v. Port Huron, (Ill.) 49 N. E. 700; Murray v. Green, (Cal.) 28 Pac. 118; Case v. Dwire, (Iowa) 15 N. W. Rep. 265; Miller v. Denny, 34 S. W. Rep. 1079; Pritchard v. Bailey, (N. C.) 18 S. E. Rep. 668; Teaney v. Mains, (Iowa) 84 N. W. Rep. 953; Maynard v. Polhemus, (Cal.) 15 Pac. 451; Ray v. Spears, (Ky.) 64 S. W. 413; Hardy v. Galloway, (N. C.) 15 S. E. 890; McDaniel v. Puckett, 68 S. W. 1007; Blair v. Muse, 83 Va. 238; Durand v. Higgins, (Kans.) 72 Pac. 567; Hamilton v. Jones, (Tex.) 75 S. W. 554; Pritchett v. Jackson, 63 Atl. 965; McDonald v. Jarvis, 60 S. E. 990; Brady v. Fuller, 96 Pac. 854.
It would not be profitable, or within the limits of judicial opinion, to attempt to quote from or to analyze these eases, in
The proposition for 'which these cases are cited is not controverted by the appellant, but the application of them to the case in hand is controverted. We must return then to the pivotal question in the case, namely, what estate was and was intended to be granted by the deed of September 5, 1889? If a fee. simple estate the plaintiff should prevail, and the decree below should, be affirmed.
As we have seen the rules of construction not only permit, but require us to look to the whole instrument. See on this subject in addition to cases cited, 2 Devlin on Deeds, section 836; 1 Sheppard's Touch. 50, et seq. In the premises of the deed of - September 5, 1889, the grantor “bargained' and conveyed * * * all of his estate both personal and real", without any words of limitation, sufficient we may say, under section 8, chapter 71, Code 1906, if unaffected by its subsequent provisions, to pass the fee- simple or the whole estate which the grantor had the power to dispose of: That section says such a deed shall have that effect “unless a contrary intention shall appear by the will, conveyance or grant." At cúmmon law, prior to the original enactment of this section, such a deed would have been construed to pass no greater estate than one for the life of the grantor or testator. Markells v. Markells, 32 Grat. 544, 557, and cases cited; 2 Minor (4th Ed.) 915, 916. We have here then a deed, which but for the statute, would not pass a fee simple estate. This statute by its very terms is not to have the effect of passing such an estate if the contrary intention appears. Now when we look-to the provisions of the deed of September 5, 1889, following the words of bargain and conveyance, we see that the grantor plainly did not intend to grant a fee simple estate, for in terms too plain to call for interpretation he specifically'reserves or excepts the legal title, and the power of sale, and upon the conditions named therein, not a naked power, but one coupled with an interest, for there is the provision for his support and maintenance during life. The
The intention of the grantor in the deed involved here being plain, and not being competent for reasons given to pass a fee simple estate to the grantees, the rules against repugnancy and restraints upon alienation, applicable to grants of estates in fee simple, can have but little, if any, application. Totten had the absolute property in the land at the time of the conveyance. He placed no restraint upon his grantees in the alienation of such estate as was granted.
Two cases, which we regard pointedly applicable to the case here, are Blanchard v. Morey, 56 Vt. 170, and Hardy v. Clarkson, 87 Mo. 171. In the first case the conditions of the deed were: “That the said Wm. C. and John Morey, Jr., are not to have any right or title whatever to the above described premises as long as we or either of us live; and the above deed is not to be binding upon us or either of us if any case we should want or need to sell a part or all of said real estate in order to maintain us, and the above deed is to be null and void in such case and we are to have the entire control of the above premises during our natural lives.” The deed was in form'a grant of an estate in fee simple. While commenting upon these apparently repugnant provisions of the deed the court says: “But a deed should be interpreted most favorably for its own validity and for the effectuation' of the design of the grantors, where that is- plainly expressed or can be collected,, or ascertained from the deed, unless it is in conflict with some rule of law.” “The intent is to be. derived upon view and comparison of the whole instrument. We think the grantors’ intent in 'this deed, though clumsily expressed, yet fairly collectible and ascertainable from it as a whole, was to convey the premises in fee, conditioned
The deed from T. K. Totten and Matilda- J. Totten to the Pocahontas Coal & Coke Company, of February 24, 1902, which recites the occurrence of the contingencies and conditions upon which the grantors by .the terms of the deed of September 5, 1889, reserved the right and title to convey said land, was we think a valid execution by them of the powers thereby lawfully conférred, and invested in the appellant company title to the land, and operated as a defeasance of any and all right and title immediately vested, or that might have become invested in the grantees, or the survivors of them, upon the death of the grantors, as provided therein. '
The theory that the power of sale reserved in the deed of September 5, 1889, might be construed as a power of revocation, and the deed to appellant of February 24, 1902, as a valid execution of that power, has also been presented and elaborately argued by counsel. And the. questions have also been presented and argued, whether there was ever a valid delivery to and acceptance by the grantees of the deed of September 5, 1889, and whether or not there could be an acceptance thereof by the infant children and grantees burdened with the obligations thereof to be performed on their part?
The conclusions already reached render it wholly unnecessary to consider these questions. The authorities cited and relied on, on the theory of a power of revocation, are, Waldron v. Coal Co., 61 W. Va. 280; Ocheltree v. McClung, 7 W. Va. 232; Fitzgerald v. Fauconberge, (1729) Fitz-Gibbon’s Kings’ Bench Reports, 207; Ricketts v. Louisville &c. Ry. Co., 91 Ky. 221; Stamper v. Venable, 117 Tenn. 557 (97 S. W. 812); Funkhouser V. Porter, (Ky.) 107 S. W. 202; Pollard v. Union National Bank, 4 Mo. App. 408; Nichols v. Emery, 109 Cal. 323. We would reach the same conclusion, whatever our answers to these questions might be, and it is therefore unnecessary to decide them.
Our conclusion is to reverse the decree below, and enter such decree here as the circuit court should have entered, dismissing
Reversed and Dismissed.
Dissenting Opinion
(dissenting):
We shall not elaborate our dissent. We hold that the granting clause, using words oí grant found in Code of 1906, chapter 72, sections 1 and 2, passed a'full fee along with jus disponendi, that is, full right of alienation, and that the clause reserving to the grantor title and power of alienation is repugnant to the granting clause and void. By established rules of law, constituting through ages rules of property, a man cannot by deed -grant and yet hold. It is a rule of law that where, in a deed clauses conflict, that first occurring shall prevail, especially shall the granting clause prevail over any inconsistent clause down lower in the deed. Principles touching the habendum and tenendum clause used in old common law deeds apply to inconsistent clauses. In that late work, very valuable for its elaborate collection of cases and its annotations; American & English Annotated Cases, Yol. 8, 444, is a full collection of cases on this intricate, technical subject. Washburn on Beal Prop, says: “If there is a clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former; but if they can be construed so as to stand together by limiting the estate, without contradicting the grant, the court alwajfs gives that construction, in order to give effect to both.” Just here we would ask how in the world these two clauses can live together in the deed involved in this case? Beferring to 8' Ann. Cases 445, “If the habendum be found to be in conflict to the granting clause the habendum must give way upon the theory that the deed shall be construed most strongly against the grantor, in order to prevent a contradiction or retraction by á subsequent part of the deed, or a limitation being placed upon a' right which had been granted and given in the premises.” “This is a consequence of the rule already stated that deeds shall be construed most strongly against the grantor; therefore, that he shall not be allowed to contradict or retract by any subsequent part of '.the deed the gift made in the premises.” 2 Lomax’s Digest 216. Justice Field says in Cowell v. Springs,