White v. Bailey

64 S.E. 1019, 65 W. Va. 573, 1909 W. Va. LEXIS 85

• Court: West Virginia Supreme Court
• Decided: April 27, 1909
• Status: Published

Opinions

Poffenbarger Judge:

Bland Bailey complains of a decree of the circuit court of Lewis county, cancelling and setting aside a deed by which his father, William J. Bailey, had conveyed to him a tract of 208 acres of land, upon a bill filed for the purpose by the executor of the will of said William J. Bailey and Broaddus College, a beneficiary of a trust created by said will.

The deed so set aside conveyed the land to the appellant, July 12, 1889, in consideration of one dollar and a covenant, on the part of the grantee, "to remove to and occupy, use and cultivate in a proper manner said tract of land, for the exclusive use and benefit of said Bland Bailey and is to support and maintain at his exclusive costs and charge, the said'William J. Bailey, and his said wife during their joint lives, and -the life of the survivor of them in sickness and in health, in a comfortable and careful manner in all respects, and on said land in the dwelling house of the said William J. Bailey, thereon, during the time to be occupied- by the said William J. Bailey, and wife with the said Bland Bailey and family.” A lien for support and maintenance was expressly retained and the following clause of re-entry inserted: "The right is reserved to said William J. Bailey to re-enter said land, and use and occupy the same during his life.” The grantee, with his family, immediately moved into the dwelling house with the grantor and remained there about nine months, when, becoming dissatisfied, he went away and never returned, leaving the grantor in possession. About two years after the execution of the deed, June 18, 1891, William J. Bailey, having no other land and assuming he had become re-invested, by the breach of the covenant to maintain and support Rim, with, the title, legal or equitable, to the laud so conveyed, or a right to acquire the same, executed another deed, purporting to convey, to certain trustees for Broaddus College, a corporation, an undivided half of the tract, and a will by which, after giving numerous legacies, he directed the executors, therein named, Mareellus White and Perry (A. P.) White, to sell the residue of that and any other land he might afterward acquire and pay the legacies. Among the legacies, there was one of $800.00 to Mareellus White and another of $400.00 to Perry White, given by the fourteenth and fifteenth items, respectively, subject to certain conditions, not material here. On the same day, he executed a codicil, directing the payment of $3,000.00 out of his estate to Broaddus College, in the event the deed, executed to the trustees for its benefit should fail to pass title to the land, and gave this legacy precedence over all others except the two above mentioned. By another codicil, made the same day, he reduced Mareellus White’s legacy to $600.00. He retained the control and management of the land until his death, sometime in the year 1903. The bill seeks instruction and guidance of the court, respecting the duties of the executor in the premises and a settlement of the estate.

Unless principles well settled, generally recognized and' often declared by this Court are rendered inapplicable by the peculiar terms of the deed and the time and circumstances of the institution of the suit, the decree is manifestly right. This is frankly admitted. The principal contentions in the brief of counsel for the appellant are: (1) the provisions of the deed, reserving security for performance of the covenant and prescribing a remedy for breach thereof, precluded resort to any other; (2) relief is barred by laches. The others are merely argumentative, collateral and subsidiary in character.

The main reliance for reversal is the re-entry clause. As, by the deed, the grantor conveyed the fee simple title and then reserved a lien for support and a right to re-enter upon the land and “use and occupy the same during his life”, it is said he was limited to these two methods of relief, since the parties contemplated possibility of failure and undertook to provide for it. In other words, it is contended that, by adding the words, “and use and occupy the same during his life”, he limited the purpose of his re-entry and the scope and extent of his relief, in respect to title, to the recovery of á life estate. This view seems to rest upon the assumption of the existence of an. amhignity, calling for the application of a rule of construction requiring the terms of an ambiguous deed to he taken most strongly against the grantor. Resort is not had to this rule, unless ambiguity or uncertainty remain after all others have been vainly appealed to in an effort to áseertain the meaning of the instrument. 2 Kent. Comm. 556; 13 Cyc. 609; Chitty Con., p. 137; Ham. Con., sec. 413. Nor will uncertainty or a doubt be unnecessarily introduced or raised. It must appear from the terms. When the terms are plain and a reasonable function for all clauses or provisions, contained in the instrument, is clearly discernible, and no necessary friction, repugnancy or inconsistency will result, and nothing in the purposes or obects 'contemplated, require any further effect to be given to any clause, the instrument should have effect according to the plain meaning of the terms used. All authority opposes construction, or the reading in of matter not expressed, when it is not rendered necessary in some way or for some reason. United States v. Fisher, 2 Cranch 358 (202); Jackson v. Lewis, 17 Johns. 475; Turnpike Co. v. People, 9 Barb. 161; Morgan v. Railroad Co., 96 U. S. 716. These cases involved the interpretation of statutes, but the same rule applies in the interpretation of contracts. Chitty Con., p. 113; Hammon Con., pp. 811-13, sec. 412; Devlin Deeds, sec. 836.

What function could the re-entry clause have been intended to perform? Its object was to enable the grantor to regain possession in case of necessity. That it was not intended as a full, complete and exclusive remedy, in pase of failure, is made apparent by the retention of a lien, reaching beyond the supposed life estate to the fee. Many contingencies might arise. . The grantee might die, leaving only a Avidow and children, wholly incapable of managing the farm so as to sustain themselves and to render the support, stipulated for, or he might become an invalid, in consequence of which failure could occur under peculiar circumstances and from unavoidable causes, such as might make it desirable to forego the equitable right of rescission, provided the grantor could take control himself or substitute some person capable of perfecting the object both parties had in vieAv. A general re-entry clause would have made it necessary, under such conditions, to wholly terminate the estate of the grantee or allow it to exist to tbe great disadvantage and embarrassment of the grantor. No right of re-entry at all would have made it still worse, as possession could not then have been rightfully regained, until after a decree of rescission, perhaps delayed by protracted litigation. The clause of re-entry may also have been intended to supplement the lien for support, since any attempt to enforce that might have met with resistance, causing delay. Thus it appears to be wholly unnecessary to say this clause was intended to cut off the equitable right of rescission, in ease of non-performance of the covenant, in order to find an important function for it to perform. Moreover, there is no express waiver of the right of rescission, nor, indeed, any reference to that right by any word used in the deed. It does not deal with that subject at all. It relates solely to the right of possession, as a means of realizing support and maintenance from the land, treating it as that of the grantee, in case the grantor should desire to do so. It creates a right under the contract, not a right against it, widely different in nature. With what does this-clause, so read, conflict? Plainly not with any express words of the deed. It is inconsistent with nothing except a mere unnecessary, and, therefore, fanciful, implication, or rather theory as to intent, not a necessary implication, for the clause may perform important and highly beneficial functions, other than that of relinquishing right of rescission for adequate cause.- If no purpose could be assigned to it other than that of barring right of rescission, an implication might be said to arise from necessity, presumption against intention to insert useless clauses being-recognized and entertained by the courts.

One of the best and most potent indices of the intention of the parties to a deed or other contract is the purpose disclosed by it, considered as a whole in connection with its subject matter and the situation and circumstances of the parties. The grantor, seized of a good farm, conceived the idea or purpose of conveying it in fee, in consideration of support and maintenance for himself and his wife. The grantee was a nephew, not a member of his immediate family. There are no words in the deed importing a gift. Tested by its terms, it conveys the land for a valuable consideration and nothing else. The consideration was entire, going to the whole estate conveyed. It is not to be presumed Dae intended the grantee to have either the fee simple title or the remainder in fee, without rendering the consideration stipulated for. The construction contended for would have made the deed operate a gift pme and simple as to all except a life estate, and the grantee need never have performed his covenant. Thus he would have obtained by far the most valuable part of the estate without rendering anything for it. This conflicts with the purpose disclosed by the terms of the deed. It purports a sale of the entire subject, not a gift as to any of it. It bound the grantee to remove to and occupy, use and cultivate the land and support and maintain the grantor and his wife on it in a comfortable and careful manner. Under this construction, he need not have done so. He could have compelled the grantor to earn his own living on the land as he had previously done, looking only to him for damages for breach of the covenant, and, relying upon the right to sell what had been his own land as security. If unable to earn his living and compelled to sell the land, he might then have been under the necessity of selling his own roof from over his head. Plainly no such results were ever contemplated by either party.

It is difficult to perceive any distinction between the effect of this clause and that of the clause reserving a lien for support and maintenance, upon the right of rescission. If one is exclusive of that right, why is not the other ? The reservation of the lien contemplates possible failure of the grantee to render the support stipulated for, constituting the consideration. It affords a means of relief or remedy on the happening of such a contingency. Its incorporation in the deed shows that it was foreseen by the parties. What more can be said of any other clause, giving a right to re-enter and hold the land during the lifetime of the grantor? We have two decisions, setting aside deeds, conveying land in consideration of a covenant fox support, and containing clauses of forfeiture for failure of performance, Goldsmith v. Goldsmith, 46 W. Va. 436, and Fluharty v. Fluharty, 54 W. Va. 407. Equity never enforces a forfeiture and did not do so in those cases.. It rescinded the contracts, set them aside wholly, for failure of consideration. The argument used here would have denied equity jurisdiction there and remitted the plaintiffs to actions at law for recovery of the possession under the forfeiture clauses. Those cases are express authority for the position that the insertion of a forfeiture clause does not preclude riglit of rescission on tbe theory of substitution, prescription of an exclusive remedy or otherwise. These decisions say, in effect, that a mere surmise or conjecture as, to intent, will not be read into a deed. Necessity in some sense is a prerequisite. It is the ground upon which every implication arises.

The doctrine of laches cannot be invoked. The appellant, was not in any sense prejudiced by the delay and the intent of the grantor not to abandon his right of rescission is placed beyond possibility of doubt. Tie retained possession until the time of ¡his death. Two years after the deed was made, he endeavored to dispose of the property to other parties by deed and will. Mere delay for a long period of time, standing alone, does no more than raise a presumption of intent to abandon the cause of action, if it be one of exclusive equity jurisdiction. Depue v. Miller, decided at the present term; Sale v. Sale, 62 W. Va. 605; Pusey v. Gardner, 21 W. Va. 469; Crammer v. McSwords, 24 W. Va. 594; Kerr on Fraud & Mistake 305; Pickering v. Stamford, 2 Ves. Jr. 593; Railway Co. v. Gregg, 101 Va. 308; Bell v. Wood, 94 Va. 677. Even long periods of delay do not bar, if the intent to abandon is negatived by conduct of the party showing the contrary. Berry v. Wiedeman, 40 W. Va. 36; Jamison v. Rixey, 94 Va. 342; Roberts v. King, 10 Grat. 184.

The only other question deemed worthy of consideration is, whether any person other than the grantor can prosecute this right of rescission. If the plaintiff were a mere assignee of the cause of action, his right to sue would be gravely doubtful. But he is the representative of the estate to which it belongs and sues as such. Hence, there is no shadow of maintenance and cham-perty, forbidding entry to courts of equity in so many cases, reported in the books. Nor is the cause of action one that dies with the person. Fluharty v. Fluharty, cited; Booth v. Fuller, 35 N. Y. App. Div. 117; Kent v. Davis, 89 Ga. 151; Hensley v. Hensley, 30 S. W. 613.

Seeing no error in the decree, we affirm it, with costs and damages.

Affirmed.