Wethered v. Conrad

80 S.E. 953, 73 W. Va. 551, 1914 W. Va. LEXIS 19

• Court: West Virginia Supreme Court
• Decided: January 27, 1914
• Status: Published

Opinion

Williams, Judge:

By deed dated the 28th day of May, 1907, B. C. Conrad and M. J. Conrad his wife conveyed to P. B. Wethered a number of tracts of land, reciting a cash consideration of $6,000. The deed on its face appears to be an absolute conveyance in fee, but is admittedly a mortgage. On the -same date there was executed between said Conrad and Wethered a separate writing, agreeing that the deed was- intended as a mortgage, and that it was given to secure the payment of $2,145.13 that day loaned by Wethered to Conrad, and to secure any additional loans or advancements that might thereafter be made. Wethered thereafter endorsed notes for Conrad, which he had to pay, and also paid some judgments against him, amounting in all, with interest, to over six thousand dollars. Wethered then brought this suit to foreclose the mortgage. Conrad answered the bill denying that he had title to the three following tracts, which were described in the conveyance, viz: 20 acres, 3614 acres, and 8 acres and 18 poles, and averred that his wife M. J. Conrad was the owner in fee of those tracts by virtue of a deed which he had made to Darius Conrad, trustee' for her, on the 9th of August, 1879. Plaintiff thereupon amended his bill making said trustee and Mary J. Conrad parties to the suit. Mrs. Conrad answered the amended bill, averring her ownership of the said three tracts, and denied that it was her purpose, in signing the deed from herself and husband to Wethered, to convey said lots, and denied the charges of fraud made against her in the amended bill. On the 16th of February, 1910, the cause was argued by counsel and submitted “for hearing for all purposes,” as the order states, and the court took time to consider. On the 2nd of July,. 1910, a decree was made upon pleadings and proof holding that the deed of May 28, 1907, was designed by both of the grantors therein and by the grantee to be a mortgage securing a sum, or sums, of money advanced or loaned to the said B. C. Conrad 'and Mary J. Conrad, or to either of them alone, and that the amount thus loaned or advanced constituted a lien upon the real' estate granted by said deed. The court further held that the mortgage was unaffected by the claim of title set up by Mary'J. Conrad to the aforesaid three lots, and-that she “take nothing under the said purported deed from B. C. Conrad to Darius Conrad, trustee, as against the said P. B. Wethered, in so far as he shall hold under the deed to him so herein decreed to be a mortgage. ’ ’ The decree, however, did not determine all the principles of the cause, even as they affect Mary J. Conrad. Whether the land claimed by her was subject to the ljens of certain judgments, averred in the bill to have been recovered by certain defendants therein named against B. C. Conrad, was left undetermined, neither was it determined for what amount the land was liable. Therefore, the point made in brief of counsel that that decree was appealable, and, not being appealed from in time by Mary J. Conrad, the appeal: as to her should be dismissed, is not well taken. “The provision of the statute authorizing appeals to this Court in chancery causes, wherein there is a decree ‘adjudicating the principles, of the cause/ authorizes such appeal, only where the decree appealed from adjudicates all the controversies between the parties raised by the pleadings or otherwise in the cause.” Hill v. Als et als., 27 W. Va. 673.

By the same decree the cause was referred to a commissioner to ascertain the value of thie lands conveyed by Conrad to Wethered; the amount of liens thereon, 'together with their dignities 'and priorities; and whether the lands would rent for enough in five years to discharge them. The commissioner completed and filed his report, and exceptions were taken to it, but the court, without passing upon them, recommitted the cause, on the 16th of February, 1911, with the same directions as were previously given. Upon the commissioner’s second report, and exceptions taken thereto by Mary J. Conrad, the case was again heard on the 11th of November, 1911. The exceptions were overruled, and a final decree made, adjudicating the liens, and appointing a commissioner to sell the land's if the liens were not paid within thirty days. From that decree B. C. Conrad and his wife Mary J. Conrad have appealed.

Assuming, for the present, that Mrs. Conrad was, in fact, the owner of the three tracts in question, did the deed to Wethered operate as a conveyance of her title? Her counsel insist that the deed shows clearly that there was no intention to convey her land, but only the land owned by B. C. Conrad. The granting clause of the deed is as follows: “The said B. C. Conrad, and Mary J. Conrad, his wife, do grant and convey unto the said P. B. Wethered, with covenants of general warranty, those certain lots, tracts or parcels of land1 situate, lying and being in the District of Fork Lick, in the County of Webster, State of West Virginia, on the waters of Black Fork of Elk River, adjacent to the town of Webster Springs, and more particularly bounded and described as follows.” The several tracts are then taken up in order and described by giving the quantity of land in each, and by reference to the several deeds by which B. C. Conrad acquired title, and the deed book and page where recorded. The granting clause shows that Mary J. Conrad was as much a party grantor ajs her husband. The deed does not indicate that the purpose of her joining her husband in executing it was simply to release her contingent right of dower. It passed all the right and title which she then had to any of the land granted. That section 6, chapter 73, Code (1906), gives such effect to her deed is too plain, we think, to admit of question. It was expressly decided, in Rollins v. Menager, 22 W. Va. 461, that the deed of a married woman properly acknowledged and recorded hats the effect “to pass from her and her representatives all right, title and interest of every nature, which at the date of the deed of trust she may have in any real estate conveyed thereby, as effectually as if she were at the date of the deed of trust an unmarried woman.” And it has been since held by this court, in Morgan v. Snodgrass, 49 W. Va. 387, that recordation, even before the amendment of the statute by chapter 23, Acts 1891, was not necessary to make the wife’s deed good between the parties to it, notwithstanding it was thought by many good lawyers, prior to that decision, that recordation was essential to complete the wife’s deed. As further evidence of an intention to' grant all the tracts described' in the deed, whether owned by the husband or by the wife, the deed contains this additional descriptive clause: “To all of the aforesaid deeds above referred to made and executed unto the said B. C. Conrad as aforesaid, dated and recorded in said County Clerk’is office of "Webster County, West Virginia, as aforesaid, reference is here specially made for a more particular and complete description of the land and premises hereby conveyed.”

Appellants rely upon the following exception in the deed to show that the lots claimed by Mrs. Conrad were not intended to be granted, and were excepted from its operation, viz.: “But there is expressly excepted and reserved from this conveyance and from the operation thereof, so much of the said several tracts, lots or parcels of land 'aforesaid as has heretofore been granted and conveyed away by the said B. C. Conrad as shown by deeds of record in said County Clerk’s office, the intent and purpose of this conveyance and deed being to grant and convey unto the said P. B. Wethered that portion and quantity of all the aforesaid several lots, tracts or parcels of land now owned by the said B. C. Conrad.” This exception, however, is not of any entire tract, but only of such portion thereof as may have been previously conveyed. The tracts are not described by metes and bounds and reference to the deeds whereby Conrad got title was made for such description; and, but for the exception, the description by reference to those deeds would have been inaccurate, for it appears that B. C. Conrad had conveyed away a number of small lots of land out of some one or more of the tracts described in the deed. But none of them was taken from any one of the three tracts in question. It is, therefore, clear that the exception was intended to apply only to parts of tracts and not the whole of any tract. If it had been intended to except the whole of a tract, there would be no reason for mentioning it as part of the land conveyed.

Webster county courthouse burned in 1888, and a portion of the records therein contained, including Deed Book No. 5 in- which, as contended by appellants, the trust deed made to Darius Conrad, trustee, for Mary J. Conrad, was recorded, was destroyed. But Wethered insists that the deed was never recorded. Inasmuch as we have already decided that the effect of Mary J. Conrad’s deed is to pass to P. B. Wethered whatever title she had, for the purpose of securing the money loaned and to be loaned, as provided by the separate writing between B. 0. Conrad and said Wethered, the fact of record-ation would not be material, were it not for the additional fact that other creditors of B". C. Conrad are claiming liens upon the lots to which his wife is now asserting title. A decision of the question is necessary in order to determine their respective rights. The portion of the record destroyed included also the deeds by which title to the lots in question had been conveyed to B. C. Conrad. He procured these deeds to be re-recorded, pursuant to the provisions of chapter 73A of the Code, but he failed to have the aforesaid trust deed re-recorded, although he had the original in his possession. It seems to be well settled that, if a grantee has delivered his deed to the recorder at his office, he has done all the law requires of him and the subsequent mutilation, or destruction, of the record does not affect his right. This is certainly the rule in the absence of a statute making it his duty to have it re-recorded. Chapter 73A, providing for restoration of burnt and lost records, does not make it a duty. It makes it rather a privilege than a duty. The law on the subject is thus stated in 24 A. & E. E. L. (2nd ed.) 153: “A grantee in an instrument evidencing a conveyance to him, who has complied with the requirements of -the law in effecting the record of the instrument, cannot lose the effect given to such recordation by a subsequent destruction of the record, as by fire or other cause, and, in the absence of any statutory requirement, he is not obliged to record- the instrument a second time, or do any other act to notify purchasers, in order to protect his rights acquired thereunder.” The text is fully supported by the following eases which it cites, and which we have examined: Franklin Savings Bank v. Taylor, 53 Fed. 854; Parson v. Brown, 61 Fed. 874; Ashburn v. Spivey, 112 Ga. 474; Hiatt v. Cochran, 69 Ind. 436; Thomas v. Hanson, 59 Minn. 274; Geer v. Missouri Lumber etc. Co., 134 Mo. 85; 56 Am. St. Rep. 489; Armentrout v. Gibbons, 30 Grat. 632.

“Where a mortgagee places his mortgage on record, his rights under it are fixed, and it is notice for all time, notwithstanding the destruction of the record, and the mortgage may be enforced against a subsequent purchaser from the mortgagor, although he had no actual knowledge of the mortgage. ” Hall v. Shannon, 85 Ill. 473.

To prove that the deed had been recorded, appellants produced the original deed. It bears date the 9th of August, 1879, and appears to have been duly acknowledged' by the grantor on the same day. The certificate of acknowledgment is admittedly in the handwriting of B. P. Conrad who, as notary public, certified it. It also bears a certificate dated May 13, 1880, admitting the deed to record. This- certificate is admittedly in the handwriting of the appellant B. C. Conrad who, at that time, was deputy for his half brother B. P. Conrad, then clerk of the county court of Webster county, and is signed, “B. P. Conrad, Clerk. ByB. C. Conrad his Deputy. ” Endorsed on the back of the deed is the following memo-randa: “Admitted for record May 13, 1880. Attest: B. P. Conrad Clerk.” And just below it the following: “Recorded in Deed Book 5 pp. 396-7.” Even though the deed may not have been actually spread- upon the record, yet if it was delivered to the clerk for recordation, it is regarded as having been recorded from the time of such delivery. See Secs. 4 and 5, Ch. 74, Code; also numerous cases cited in 11 Enc. Dig. Va. & W. Va. Cases 689.

The clerk’s certificate admitting the deed to record would be sufficient evidence of recordation, in the absence of proof attacking its genuineness. Davis v. Lewis, 1 Va. Dec. 39; Beverly v. Ellis, 1 Rand. 106; Fouse v. Gilfillan, 45 W. Va. 213; and Thomas v. Sanson, 59 Minn. 274. There is evidence that the certificate and the memoranda on the back of the deed were all made by B. C. Conrad at a comparatively recent date. The certificate purports to have been made by him, but made in the year 1880 when he was deputy clerk, and, therefore, authorized to act for the clerk in recording deeds. The first memorandum purports to be signed by B. P. Conrad, the clerk, in person, but there is evidence denying that it is the clerk’s signature. Three'witnesses, who for many years had been familiar with' the handwritings of both B. P. and B. C. Conrad and had seen them write, testified that both the certificate of recordation and the memoranda on the back of the deed were, in their opinion, in B. C. Conrad’s handwriting, and were written at a comparatively recent time, and not at the time the certificate bear® date. They gave their reasons for so believing, one of which was that his handwriting had materially changed since 1880. Two of those witnesses were lawyers of many years practice in their profession and the other a business man of large experience. All of them had frequent occasion to examine and compare different hand-writings, and were qualified to testify as experts upon the question. The genuineness of the writing was a controverted fact, and both the commissioner and the chancellor having determined it upon conflicting evidence, we are not disposed to disturb their finding. The appellate court will not reverse the finding of the chancellor on a question of fact, depending upon conflicting evidence, unless such finding is clearly erroneous. It will not reverse if the question is simply a doubtful one. Shock v. Gowing, 71 W. Va. 250; Bradshaw v. Farnsworth, 65 W. Va. 28; and Baker v. Jackson, 65 W. Va. 282.

The commissioner found, and stated in his second report, that the deed to Darius Conrad, trustee, had never been .admitted to record and was, therefore, not a recorded instrument, and that the judgments against B. C. Conrad were liens on all the lands conveyed to P. B. Wethered and so reported them in the order of their priorities. His report in this, as well as in other respects, was confirmed, and the exceptions taken thereto by Mary J. Conrad overruled by the decree appealed from.

She also excepted to the report for the reason that sums of money, other than the $2,145.13 loaned to Conrad on the date of the deed, were decreed as liens in favor of P. B. Wethered, The separate paper executed between Conrad and Wethered, on the sahne day as the deed, must be read as a part of the deed. They are parts of one and the same transaction, the two constituting a mortgage. It expressly provides for the securing of additional loans. The amounts loaned to Conrad, and paid for him, by Wethered, are not controverted. B. C. Conrad did not except to the commissioner’s report on any ground, and he is, therefore, concluded by his' finding as to questions of fact; and Mrs. Conrad, having never had the deed to her trustee recorded, can not complain of liens that had been acquired against her husband. Mrs. Conrad for some reason did not testify in the case. While the trust deed may be good as between the parties to it, it is void as to the lien creditors of, and subsequent purchasers for value without notice from B. C. Conrad, it not having been recorded. Sec. 5, Ch. 74, Hode.

The report was excepted to also for the alleged reason that the evidence taken before the commissioner was not properly certified by him to the court. This exception is not urged in brief of counsel arid seems to have been abandoned. Replying to it nevertheless, we find, in the record, a certificate appended to the commissioner’s report, and signed by him, in which he says, that he took all the proof and considered all the evidence as mentioned and set forth in the beginning of his report, “which testimony, proofs, evidence, papers, plats, etc., including the testimony taken in the hearing of a former report,” he certifies, are returned and filed as a part of his report. In the first part of his report he mentions the papers that were filed with, and considered by, him, and also shows that depositions of witnesses were taken and considered by him. Such papers as are mentioned in the report, and the depositions of witnesses appear in the record, and, in the absence of any showing that they were not before the commissioner, must be considered as a part of the record, and as the evidence which was before the commissioner and the chancellor below.

The decree is affirmed.

Affirmed.