Liggett v. Rohr

7 S.E.2d 867, 122 W. Va. 166, 1940 W. Va. LEXIS 32

• Court: West Virginia Supreme Court
• Decided: March 12, 1940
• Docket: 8934
• Status: Published

Opinions

Hatcher, Judge:

In 1899, Mary E. Queen and her husband, in consideration of one dollar and love and affection, executed an instrument, without warranty, granting to their son,. Lony, their daughter, Bessie, and two other children, a tract of 3 roods and 30 poles. The instrument was promptly recorded. Following the granting clause and the description of the tract, is a provision, of which the pertinent part is: “Under the following conditions, that this grant does not take effect until the death of the said Mary E. Queen * *

In 1919, Mrs. Queen and Bessie executed a deed of trust, which included this tract, to secure their joint note to Lony. The record does not show what further happened regarding that transaction. In 1933, Bessie was adjudicated a bankrupt. She listed her interest in this tract as an asset of her estate. That interest was sold in the bankruptcy proceedings and purchased by Central National Bank of Buckhannon, and by it sold the same year (1933) to T. J. Liggett. Mrs. Queen died in August, 1938. Shortly afterwards, Bessie made a deed to Lony for her interest in this tract. Liggett instituted a suit to partition the land. Lony answered denying that plaintiff had an interest in it. A demurrer to the answer was sustained and a decree entered fixing the interest of Liggett as one-fourth of the tract, and directing partition, etc.

Appellant advances these propositions: (a) “There is no evidence the deed was ever delivered to the grantees or any of them.” (b) “There is no warranty in the deed and this is one of the essential characteristics of a deed.” (c) “None of the four grantees in the deed took any present interest therein * * * none of the four interests would vest and become certain or ripen into a title until the death of Mary E. Queen.”

The execution and recordation of an instrument are prima facie evidence of its delivery. 18 C. J., Deeds, sec. 497, and note 53, citing more than one hundred cases. There is no evidence here to the contrary. Lord Coke, some three hundred years ago, wrote specifically that a “clause of warrantie” was not of the essence of a deed. Coke’s First Institutes, 7a. We are not advised of any judicial departure from that writing. 4 Kent’s Comm. *461; Devlin, Deeds (3rdEd.), sec. 174. The necessary elements of a deed are limited by the Supreme Court of Virginia to “competent parties, a lawful subject-matter, a valuable consideration, apt words of conveyance and proper exe cution.” Morison v. Am. Ass’n., 110 Va. 91, 65 S. E. 469. 2 Minor’s Institutes, 589, 9 A. and E. Ency. of Law, 107, and 18 C. J., supra, sec. 34, list a greater number of essentials, but none includes warranty as one.

The leading case in our jurisdiction on instruments like the one at bar is Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986, 987. There, William Logan and wife, in consideration of five dollars and love and affection, executed and delivered to their son, L. N. Logan, a land deed closing with the following clause: “But it is hereby distinctly understood and stipulated that this deed shall take and be in full force and effect immediately after the said William Logan shall depart this life, and not sooner.” While the words of that clause and the clause at bar differ, the effect is the same. Regarding the Logan conveyance, the Court held that the instrument was a valid deed and conveyed a present estate to the grantee. This holding was treated as establishing the rule in this state in Spangler v. Vermillion, 80 W. Va. 75, 86, 92 S. E. 449. Then, later in Rust v. Coal Co., 92 W. Va. 457, 115 S. E. 406, 407, a clause worded practically the same as that at bar was under consideration. The clause there occurred in a deed from Truman Gore and wife to their daughter, Susan L., and was: “It is here fully understood that this deed is not to take effect until after the death of the said Truman Gore * * The Court said of the Gore deed: “That the grantor reserved a life estate to himself does not affect the matter. What we are to consider is the estate granted, not what is reserved. Nor do we think that the provision in the deed that it is not to take effect until after the death of Truman Gore has any bearing on the case. * * * Under the terms of the deed * * * Susan L. Gore was not entitled to possession until the death of Truman Gore * * *; but her estate vested upon execution and delivery of the deed, our statute section 5, chapter 71, Code, (now 36-1-9) providing that ‘Any estate may be made to commence in futuro by deed, in like manner as by will.’ ”

The authorities are divided upon the construction of instruments in the form of deeds, which provide that they are not to take effect until at the maker’s death. 15 Am. Juris., Deeds, sec. 199. But our own cases — the Lauck and Rust — are well considered and we regard them as binding on us. Therefore, we hold that Bessie was vested with an immediate estate upon the execution and delivery of the deed from her mother, and that such estate passed by mesne conveyances to plaintiff.

The decree is affirmed.

Affirmed.