Wellman v. Tomblin

84 S.E.2d 617, 140 W. Va. 342

• Court: West Virginia Supreme Court
• Decided: November 22, 1954
• Docket: 10656
• Status: Published

Opinions

Browning, Judge:

This is a chancery suit brought by the plaintiff, in the Circuit Court of Wayne County, to recover possession of a certain tract of real estate, hereinafter designated as Tract No. 3, and to partition two other tracts, hereinafter designated as Tracts Nos. 1 and 2, in which he alleges ownership of an undivided one-half interest.

The facts are uncontroverted. On February 25, 1914, Tracts Nos. 1 and 2 were conveyed to plaintiff and his brother jointly by one Ferguson. Tract No. 3 was individually acquired by plaintiff in 1916. Plaintiff’s brother died intestate, without issue, in 1918, and under the statute then in effect, his one-half undivided interest in Tracts Nos. 1 and 2 passed to his father, B. F. Wellman. Thereafter, on December 21, 1920, plaintiff granted all of his right, title and interest in the three tracts to his mother, Sarah B. Wellman. Subsequently, on December 19, 1921, B. F. Wellman and Sarah B. Wellman, parties of the first part, conveyed “unto the party of the second part [plaintiff] B. F. Wellmans undivided interest in the three separate tracts.” Plaintiff, then, by deed dated February 25, 1946, conveyed to defendant James I. Tomblin with covenant of general warranty “all those certain Tracts, Pieces or parcels of surface land, * * * being the same land conveyed by Sarah B. Wellman and B. F. Wellman, her husband, to S. B. Wellman, by deed dated the 19th day of December, 1921, * * Tomblin then took possession, made improvements, and subsequently made two out conveyances. The grantees in these conveyances are defendants in this suit.

Sarah B. Wellman died intestate in 1949, leaving plaintiff as her sole heir.

The Circuit Court of Wayne County entered its decree December 18, 1953, nunc 'pro tunc, as of July 28,1953, holding plaintiff to be the sole owner of Tract No. 3, the owner of a one-half undivided interest in Tracts Nos. 1 and 2, and entitled to the relief sought in his bill of complaint, from which this Court granted an appeal on January 25, 1954.

It will be observed that at the time of the conveyance by the plaintiff to the defendant Tomblin, the former owned only a one-half undivided interest in Tracts Nos. 1 and 2, his mother, Sarah B. Wellman, at that time owning the other one-half undivided interest in those two tracts, and owning Tract No. 3 in fee. It is apparent that Sarah B. Wellman joined in the December 19, 1921 conveyance to convey her dower interest in her husband’s undivided one-half interest in Tracts Nos. 1 and 2, and that the inclusion in that deed of the third tract, which the mother owned in fee at that time, was for the purpose of releasing the dower interest therein of the husband B. F. Wellman. Three years subsequent to the conveyance by plaintiff to the defendant Tomblin, the plaintiff became the owner in fee of the interest then held by his mother Sarah B. Well-man, he being her sole heir.

That a grantee acquires nothing more than the grantor owns and can ' convey, particularly where the title of grantor appears in deeds of record, and grantor’s intentions are expressed in his deed, avails ordinarily, however, such principle is not applicable if in conflict with some canon of construction, or rule of property. Trager, etc. v. Chapman, et al., 100 W. Va. 413, 130 S. E. 660.

The parties are in disagreement as to the effect to be given the clause in the 1946 deed “the same land conveyed by Sarah B. Wellman and B. F. Wellman her husband to S. B. Wellman. * * *” The plaintiff contends that these words constitute a description of the interest conveyed, and the defendants maintain that such reference was pro forma only. A complete metes and bounds description of each of the tracts is recited immediately following the granting clause.

Code, 36-1-9, provides that: “Any interest in or claim to real estate or personal property may be lawfully conveyed or devised. Any estate in such property may be made to commence in futuro, by conveyance inter vivos, in like manner as by will, and any estate which would be good as an executory devise or bequest, shall be good if created by conveyance inter vivos.” Section 10 of the same Article and Chapter provides: “A deed which purports to convey a greater right or interest in real property than the person making it may lawfully convey shall operate as an alienation of such right or interest in such real property as such person might lawfully convey. The application of the doctrine of estoppel by deed, and the liability of the grantor, his heirs and personal representatives upon the covenants, if any, contained in such conveyance shall be determined according to the rules of law applicable to other deeds.”

By the statutory provisions last quoted, and by numerous decisions of this Court, it is well established in this jurisdiction that the principles of estoppel by deed are in force. In Johnston et al. v. Terry et al., 128 W. Va. 94, 36 S. E. 2d. 489, this Court, speaking through Judge Fox, said: “Another legal question involved herein grows out of the reacquisition of the title to the 7.73 acres by Johnston, subsequent to the deed to the Ramseys, dated August 13, 1936. For one reason or another, all authorities agree upon the fundamental proposition that where a person conveys land by deed of general warranty, and has at that time no title, or a defective title thereto, and thereafter acquires perfect title, he is estopped to assert the title thus acquired against his former conveyance. * * *” In support of this statement, the following cases and authorities were cited: 8 R.C.L. 1058; 10 R.C.L. 677; 2 Devlin on Deeds, 3rd Ed. 1764; 3 Id. 2392; 3 Washburn on Real Estate, 6th Ed. 98; Minor on Real Property, 2d Ed., 1689; 19 Am. Jur. 610; Mitchell v. Petty, 2 W. Va. 470; Buford v. Adair, 43 W. Va. 211, 27 S. E. 260; Clark, Trustee v. Sayers & Lambert, 55 W. Va. 512, 47 S. E. 312; Summerfield v. White, 54 W. Va. 311, 46 S. E. 154; 16 Am. Jur. 629; Yock v. Mann, 57 W. Va. 187, 49 S. E. 1019; Blake v. O’Neal, 63 W. Va. 483, 61 S. E. 410; Irvin v. Stover, 67 W. Va. 356, 67 S. E. 1119; Custer v. Hall, 71 W. Va. 119, 76 S. E. 183.

Numerous authorities are cited in Footnote No. 20, 7 M. J., Estoppel, §12, for this statement: “The general rule is that where land is conveyed with warranty, the grantor is estopped from setting up an after-acquired title.* * *”

The West Virginia rule established by case and statutory law is in accord with the general rule. 16 Am. Jur., Deeds, §335. The fact that plaintiff subsequently acquired title to the real property here involved by inheritance, rather than by purchase or otherwise, is immaterial in view of the provisions of Code, 36-1-9 and Code, 36-1-10. However, in the absence of statute, many courts have placed limitations upon the rule where a prospective heir undertakes to assign his expectancy. 4 Am. Jur., Assignments, §52. The rule in Kentucky, though not in accord with the authorities elsewhere, is to the effect that an assignment of an heir’s expectancy is invalid, and unenforceable in equity, as well as at law, even though the expectancy is conveyed by a deed containing covenants of warranty, and the grantor is not estopped to deny title to the property subsequently inherited. The reason for the rule is that such a transaction is contrary to public policy. Hunt v. Smith, 191 Ky. 443, 230 S. W. 936; Spears v. Spaw, (Ky.), 118 S. W. 275.

In. stating the general rule in 16 Am. Jur., Deeds, §338, we find this statement: “In any event there must be certainty and positiveness in the allegations or recitals upon which the estoppel is predicated.” See also annotation 58 A.L.R. 349. Upon that point, the rule established by this Court in Kent’s Representatives v. Watson’s Heirs, 22 W. Va. 561, has not been subsequently changed or modified. Judge Snyder, who wrote the opinion for the Court, stated: “* * * An estoppel is never extended beyond what is called for by the plain import of the terms employed by the grantor in a conveyance of any kind. * * *” While there was no warranty or assurance of title to the land involved in the litigation in that case, the use of the language “in a conveyance of any kind.”, clearly covers instruments with warranties, as well as those without. If it could be argued that this statement was dictum, it un>-doubtedly represents the weight of authority elsewhere, and the statement in its entirety is adopted and approved. Upon this question this statement appears in 26 C.J.S., Deeds, §105: “Where the language is clear and unambiguous and there is no intention apparent from the instrument to convey after-acquired property or title, the deed will not be construed as a conveyance thereof. In order to convey an after-acquired interest, it is necessary either specifically to mention the intention of the grantor so to do or to make such recitals as will preclude him from thereafter disputing the full force and effect of his conveyance, and the habendum clause may not, as a rule, bring within the scope of the granting clause property acquired after the execution of the deed, when such granting clause does not purport to pass such property. * * *” Several cases are cited in the footnotes in support of these statements.

In determining the quantum of interest conveyed by deed, the intent of the parties, if ascertainable, prevails, and, generally, it is necessary to consider the entire instrument in order to ascertain what interest is conveyed. In Spencer v. Bouchard, 121 A. 164, 123 Me. 15, it was held that where a grantor owned the entire fee in certain land, which was acquired by two separate deeds to grantor from different persons, each conveying one undivided half, such grantor’s deed, describing the interest conveyed as an undivided half and referring to one of the deeds which conveyed an undivided half to grantor, conveyed only an undivided half.

Where the language used in the habendum clause evinces “a clear intention” to convey all interest in certain described property which the grantor “may hereafter acquire or take” under the will of a specified person or “by inheritance”, or “by inheritance or otherwise”, it has generally been held that such language conveys the grantor’s expectancy as an heir, where that language is used or acquisition by any means if the more general language is contained in the instrument. Pollock v. Brayton, 163 N. E. 573, 29 Ohio App. 296; Inlow v. Herren, 267 S. W. 893, 306 Mo. 42; Wallace v. Quick, 156 S. C. 248, 153 S. E. 168.

In Carter’s Adm. v. Quillen, 39 S. W. 2d. 1012, 239 Ky. 583, it was held that where the reference is intended to show more than merely the source of. title, it may require the grantee to resort to the deed referred to in order to determine the extent of his acquisition.

The general rule, that the interpretation of deeds in cases of doubt or ambiguity will be construed most strongly against the grantor and in favor of the grantee, must be considered. This Court has so held on many occasions, including the case of Weekley v. Weekley, 126 W. Va. 90, 27 S. E. 2d. 591. Other cases so holding are compiled in footnote number 4, 5 M. J., Deeds, §58.

In attempting to ascertain the true intent of the parties in the instant case, and in applying the general rule just stated, we must also consider the rule in Kent’s Representatives v. Watson’s Heirs, supra, to the effect that an estoppel is never extended beyond what is called for by the plain terms used by the grantor. That the latter rule is an exception to, or limitation upon the other, is obvious.

Issue was joined in this cause upon the pleadings and exhibits, the latter consisting of the deeds of conveyances heretofore referred to in this opinion. The granting clause in the deed in question recites “all those certain Tracts, Pieces or parcels of surface land, situate on Peter Cave and Bartram Fork Creek of Little Lynn Creek, in Stonewall District, Wayne County, West Virginia”, then follows with this language: “and being the same land conveyed by Sarah B. Wellman and B. F. Wellman, her husband, to S. B. Wellman, by deed dated the 19th day of December, 1921, and which deed is recorded in the Office of the Clerk of the County Court of Wayne County, West Virginia, in Deed Book No. 120, at page 192, and bounded and described as follows, to-wit: * * Thereafter follows the metes and bounds description of the three tracts.

It is well settled, of course, that parol evidence is inadmissible to vary, contradict, add to or explain the terms of a valid unambiguous written instrument. However, there are some exceptions to the rule. This Court has held that such evidence is admissible to show fraud or mistake, to correct a deed, to show that a deed was executed through mutual mistake, or to correct a mistake of the scrivener in drawing a deed under certain circumstances. 7 M. J., Evidence, §162.

In Sadler v. Taylor, Syl. Pt. 4, 49 W. Va. 104, 38 S. E. 583, this Court held: “In ascertaining what the intention of the parties, was at the inception of the transaction, it is proper to consider the parol declarations of the parties and the evidence of other witnesses, together with the situation, circumstances, and conduct of the parties respecting such transaction prior to, at the time of, and after the execution of the deed.”

It was held also in Laing v. McClung, 91 W. Va. 776, 114 S. E. 253, that doubtful descriptions of deeds by reference to descriptions in former deeds may be established by parol evidence.

In Bruce v. Slemp, 82 Va. 352, 4 S. E. 692, such evidence was held admissible for the purpose of ascertaining the nature of the estate conveyed by deed. However, no attempt was made to present extraneous evidence in the instant case to indicate the intention of the parties at the time of the execution of the disputed deed. There is no allegation of fraud or mistake in either bill or answer. That the grantor in the 1946 deed became seized of a .one-half interest only in Tracts Nos. 1 and 2, and of no interest except the dower rights of B. F. Wellman in Tract No. 3, by deed of December 21, 1921, to which reference is made in the 1946 deed by the phrase “and being the same land conveyed”, is evident. There is no indication by reference or otherwise that the plaintiff possessed any other interest in these tracts.

While referring to citations discussing descriptions and not interest conveyed, this quotation from 16 Am. Jur., Deeds, §276, is worthy of consideration: “The document referred to controls any general words of description contained in the deed itself; * * *.” Also, in 16 Am. Jur., Deeds, §288, it is said that: “* * * if a general description is followed by a clause summing up the intention of the parties as to the premises conveyed, such clause has a controlling effect on all prior phrases used in the description.”

This statement is contained in 19 Am. Jur., Estoppel, §30: “If a conveyance purports to be of land conveyed by a prior deed to which reference is made, the grantee cannot contend that more passed than was included in the recited deed.”

In view of the strong language used, by this Court in Kent’s Representatives v. Watson’s Heirs, supra, to the effect that an estoppel is never extended beyond what is called for by the plain import of the terms used by the grantor in a conveyance of any kind, and the authorities herein cited in support thereof, this Court holds that by the terms employed by the plaintiff in the 1946 deed to Tomblin, he did not purport to convey an interest in futuro, but only the interest which he possessed in the property at that time. Therefore, plaintiff is not now estopped to assert the title which he subsequently acquired by inheritance against the 1946 conveyance. There was no error in the decree of. the Circuit Court of Wayne County which granted all of the relief prayed for in the plaintiff’s bill.

Affirmed.