9 W. Va. 671 | W. Va. | 1876
P. Whitham filed his bill in the circuit court of Ritchie county, in October, 1872, against William Sayers, M.
The pleadings and depositions show the following to be the facts. In 1863, Robert Horner and David Horner, being the owners of one thousand acres of land in that county, agreed, by parol, to divide the same between them by a certain line, and, therefore, David Horner sold and conveyed the five hundred acres which had been assigned to him to M. F. Murray and his brother Linville Murray. This deed, therefor, bears date December 30, 1863. "Without amr recitals, it grants and conveys this five hundred acres by metes and bounds, “together with, all and singular, the tenements, heredita-ments and appurtenances, and all the estate, title and interest of the party of the first part therein. And the party of the first part, David Horner, did, thereby, covenant and agree with the parties of the second part, the grantees, that he would warrant and defend the above granted premises in quiet and peaceable possession of the said parties of the second part, their heirs and assigns forever.” This deed vras duly recorded on January 12, 1865. On February 12, 1864, W. F. Murray and brother, and their wives, conveyed the. same land to the plaintiff, P. Whitham. The deed, in the granting part, uses the same language as the deed above recited to the grantors, and has a covenant in the same words as the deed to the grantors. It v'as recorded at the same time, January 12, 1865. Shortly afterwards, David Horner, discovering that the title to the land he had sold was defective, there never having been any deed of partition
On October 24, 1873, the cause was heard, and the court being of opinion that the plaintiff had failed to show, that the deed from the recorder of Ritchie county to the defendants, Hitchcox and Rawson, dated May 17, 1871, is invalid, and that the complainant, Whitham, was the owner of the entirety, in fee, of this tract of land; and the court, being further of the opinion, that the deed from the Murrays to the complainant, Whitham, of February 12,1864, conveyed to him an undivided moiety of said tract of land, and that the title of the other moiety was, at that time, vested in Robert Horner, whose deed, dated April 12, 1865, conveyed this undivided moiety to the Murrays, and that the same did not pass to the plaintiff, because the deed from the Murrays to him was a deed of special warranty only; and the court, being further of opinion, that this undivided moiety of said land, conveyed by Robert Horner to the Murrays, passed by the
The boundaries of this tract of land, called five hundred acres, more or less, in the deed, really contains four-hundred and ninety-nine acres, and this is, probably, the reason why it was put on the assessor’s bo.oks, in one instance, as four hundred and eighty-nine acres, he making a mistake of ten acres in the entry.
The decree of the circuit court shows that, the question discussed before that court was, whether the deed from 'Robert Horner to the Murrays passed, by way of estoppel, their legal title to one undivided moiety of this land to their vendee, P. Wrhitham, the plaintiff, by virtue of the previous deed made by them to the plaintiff. The ■circuit court was of opinion, that it did not. This question has been elaborately discussed before this Court. It is insisted that a conveyance of land, with general warranty of title, passes a title subsequently acquired by the grantor, the title subsequently acquired by the grantor being, at once, transferred, by estoppel, to his former ■grantee: that a- general warranty does not, simply, operate to estop the grantor from claiming the land, but as an absolute transfer of the title subsequently acquired by him; that while a special warranty might not have this effect, that a covenant for quiet enjoyment will; and that whenever the terms of the deed, or of the covenants it contains, clearljT show that it was meant to convey an absolute and indefeasible title, and not merely that which the grantor had at the time, it will bind and pass every estate, or interest, which may vest in the grantor, subsequent to its execution, whether the warranty be general or special, and though it may contain no warranty whatever. ■ It is also insisted that, as the estoppel, produced
In the view I take of this case, it is unnecessary to determine any of these questions. We are not called upon to decide whether the deed from the Murrays to the plaintiff, Whitham, operated by way of estoppel to convey to the plaintiff the legal title to one moiety of this land, snbsquently conveyed by Robert Horner to the Murrays.
The deed from David Horner to the Murrays conveyed to them the legal title to one undivided moiety of this land, and the equitable title to the whole of this land. The mere legal title to the other undivided moiety of this land remained in Robert Homer. The records did not their show that the Murrays had an equitable title to this moiety of the land, the legal title of which was in Robert Horner. The assessor seems, however, to have understood the real facts, for he taxed, on his books, the whole of this tract, calling it four hundred and eighty-nine acres, and assessed it to the Murrays. After they obtained their deed from David Horner, and after they conveyed this land to the plaintiff, Whitham, he assessed the whole tract, calling it five hundred acres, to him. But, after Robert Horner conveyed his mere legal title to this land to the Murrays, the assessor, improperly,
It is hardly necessary to quote authority for a position so obviously right, but I will refer to the case of Lohrs v. Miller’s Lessee, 12 Gratt. 452. In that case, a party who merely claimed to be a purchaser from a person who held the legal and equitable title to a tract of land-, had the same assessed in his name, and paid the taxes thereon. The records disclosed that he claimed to be such purchaser, but did not show that he really was such purchaser, or that he had any real interest in the land. Nevertheless the court held, that the assessor having assessed the land in the name of the party, who the record thus showed claimed to be a purchaser’, it would have been improper to have assessed it, in the name of the party whom the record showed had the legal title, and the failure, therefore, to so assess it, did not produce a forfeiture of the land for such failure. This case goes much further than it is necessary to go in the case before us, in setting aside a deed based upon a failure to pay taxes.
The decree of the circuit court must be reversed, and the appellant recover of the appellees, Michael M. Hitch-cox and T. J. Rawson, his cost about his appeal expended ; and this Court, proceeding to render such decree as the circuit court should have rendered, doth order that the injunction awarded in this cause be perpetuated, and that the deed from George W. Amos, recorder of the county of Ritchie, in the State of West Virginia, dated May 17, 1871, to Michael M. Hitchcox and T. J. Raw-son, referred to in the bill and proceedings, be set aside and declared null and void, and that P. Whitham, the plaintiff in this cause, do recover of the defendants Mich
Decree Reversed.