Allen v. South Penn Oil Co. S.
| Decision Date | 11 March 1913 |
| Court | West Virginia Supreme Court |
| Parties | Allen v. South Penn Oil Co. et als. |
1. Deeds Nature of Estate Conveyed. "Heirs of His Body."
If a grant of land be to a person "and the heirs of his body," to take effect in presents, and there are no other words in the deed, and no circumstances appearing in the case to indicate a purpose of the grantor to restrict their usual and technical meaning, other than the fact that the grantee then had living children, the words, "heirs of his body," will be construed to be words of limitation, creating, at the common law, an estate tail, which, by the statute, is raised to a fee simple. (p. 157).
2. Husband and Wife Conveyances by Construction Payment
of Price.
A deed by husband and wife to a grantee, providing for payment to the "grantor" at a future time of part of the purchase money, constitutes the husband and wife joint obligees, (p. 160).
3. Payment Joint Obligees {Discharge of Debt.
Payment to any one of several joint obligees discharges the obligation, (p. 161).
Appeal from Circuit Court, Doddridge County. Bill by William Allen and others against the South Penn Oil Company and others. Decree for plaintiffs, and defendants appeal.
Reversed.
A. B..Fleming, Charles Powell, and Kemble White, for appellants.
W. S. Stuart, and Edward 67. Smith, for appellees. Williams, Judge:
Claiming to be the owner in fee of a tract of land in Doddridge county, Mary N. Allen, by deed 5th April, 1892, in which her husband united, conveyed to the South Penn Oil Company all the oil and gas in said tract, together with the right to mine and remove it. The consideration was $100 in cash and $500 to be paid either ninety clays after a well was drilled; or, if no well was drilled, then within fifteen years from the date of the deed; and if the $500 was not paid the grantee's estate was forfeited, or reverted. The grantee was given the option cither to pay the $500 at any time before the fifteen years expired, and thereby prevent a forfeiture; or to decline to pay it, even after a well was drilled, and thereby forfeit its estate.
In February, 1907, within said period of fifteen years, the South Penn Oil Company drilled a well which produced gas, and within ninety days thereafter paid to Edgar Allen, husband of Mary A. Allen, $500, Mary N. Allen being then deceased and no administrator having qualified to administer on her estate. The South Penn Oil Company then, in February, 1907, sold the well and all the oil and gas in said land to the Hope Natural Gas Company.
Mary N. Allen acquired title to the aforesaid land by deed from her father, Levi Eoberts, made in October, 1889. She was then the mother of four children, three of whom, William, Ellsworth and Irvin Allen, are the plaintiffs, and U. G. Allen. Claiming as joint tenants with their mother, plaintiffs brought this suit to enjoin the defendants from further drilling for oil and gas and for an accounting. The cause was submitted on the pleadings, record evidence and an agreed statement of facts; and on the 10th March, 1910, the court decreed that the deed from Levi Eoberts to Mary N. Allen vested her with an un- divided one-fifth only in said tract of land, and each of her four sons with an undivided one-fifth; that the Hope Natural Gas Company was the owner of one-fifth only of the oil and gas, and that plaintiffs were the joint owners of the other four-fifths, they having acquired the one-fifth therein of U. G. Allen; and perpetually enjoined defendants from further operating for oil and gas. From that decree the South Penn Oil Company and the Hope Natural Gas Company have appealed.
The decision of the case turns wholly upon a proper construction of the deed from Levi Roberts to Mary N. Allen, which reads as follows, viz.:
'"This deed made this 8th day of October, 1889, between Levi Roberts and Elizabeth Roberts, his wife, of of the first part and Mary N. Allen and the heirs of her body of the second part, all of the county of Doddridge and State of West Virginia.
"Witnesseth, that for and in consideration of the natural love and affection which the said parties of the first part have and bear unto the said parties of the second part, the said parties of the first part grant and convey unto the parties of the second part all of a certain lot, tract or parcel of land which is full share of said parties of the second part in the real estate of the said parties of the first part, and lying and being on the waters of Pagans Run, a branch of McElroy Creek in the District of McClellan in Doddridge County, and State of West Virginia, and bounded and described as followsThen follows the description, and the signatures.
What did the grantor mean by the words, and the heirs of tier body? Did he mean her children, of whom there were four; or did he mean that class of persons upon whom the law casts descent? If he meant children, then the words are words of purchase, and vested the four sons with a joint estate in fee with their mother; but if he used the words to define a class of persons to whom the property would descend by the law of inheritance, then they are words of limitation, creating an estate in fee tail in the mother, which the statute, sec. 9, ch. 71, Code 1906, raises to an estate in fee simple.
In construing both deeds and wills, it is an established rule that technical words must be given their usual technical mean- ing, unless it appears from other parts of the instrument, or from the circumstances of the case, that they were intended to have a different meaning. Hint on v. Milium, 23 W. Va. 166; Tomlinson v. Nick ell, 24 W. Va. 148; Irvin v. Stover, 67 W. Va. 356.
In order to create a fee simple estate by conveyance, at common law, it was necessary to use the word "heirs"; 2 Blackstone Com., 107; 2 Min, Inst. (2nd ed.) 75; and in order to create a conditional fee, or fee tail as it was commonly called, it was necessary to use the words "heirs of his (or her) body." 2 Blackstone Com., 110; 2 Min. Inst. 78. Those words, being originally necessary to create estates of inheritance, came to have a technical and well understood meaning in law; and notwithstanding the early statutes, dispensing with their use and giving every deed the effect to convey the greatest estate the grantor has, unless limited by the deed to a less estate in the one case and converting an estate tail into an estate in fee simple in the other, still, when used in conveyancing, they retain their original and technical meaning and must be so interpreted, unless it is necessary to attribute to them some other meaning, in order to carry out the manifest purpose of the grantor, made to appear from other language of the deed, or from the circumstances of the case. Baer v. Forbes, 48 W. Va. 208; and cases supra.
The tenacious adherence of the courts to the legal, technical meaning of the words "heirs" and "heirs of the body," is well illustrated by the case of Tomlinson V. Nick ell, supra. In the will involved in that case, the testator had used the word "heirs" twice in the same sentence. He devised all the remainder of his lands to his son, and then added this proviso: "If my son should die without having heirs he shall divide the land between his sisters heirs as he may think proper." Now, it is easily seen that, if the word he...
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