Armstrong v. Ross

• Decision Date: 04 December 1906
• Citation: 61 W.Va. 38,55 S.E. 895
• Parties: ARMSTRONG . v. ROSS.
• Court: West Virginia Supreme Court

55 S.E. 895

61 W.Va. 38

ARMSTRONG .

v.ROSS.

Supreme Court of Appeals of West Virginia.

Dec. 4, 1906.

1. Specific Performance—Sale of Realty-Executory Contract.

Courts of equity enforce specific performance of executory contracts for the sale of real estate according to the true intent and meaning of the parties, as disclosed by the contract considered as a whole, and do not hold themselves bound by all the technical rules applicable to deeds passing title, which have, for their foundation, reasons of public policy designed to give stability to legal titles.

2. Mines and Minerals — Sale of Coal Lands—Construction of Contract.

A contract for the sale of real estate which, read in connection with deeds and other written instruments to which it refers, shows on its face that the subject of sale was a portion of a certain vein of coal lying partly under a certain tract of land, described and conveyed in the deeds to which the contract refers, and separately described and treated as coal in said deeds, as known to the parties to the deeds and contract, in point of existence, area, location, and relative position, does not include other veins of. coal in said tract of land which were not so known to them.

3. Same.

Such a contract is not ambiguous on its face, nor is a latent ambiguity therein disclosed by the discovery, in the application thereof to its subject-matter, that there are other veins of coal in the land.

4. Evidence — Parol Evidence — Written Contract.

The fact that the area and location of the coal was known, disclosed by the terms of the contract, is a part of the written description thereof, to be observed in applying the contract to its subject-matter, and, for the incorporation thereof into the contract, as an element within the intent of the parties, the aid of parol evidence is not necessary.

5. Vendor and Purchaser—Contract — Rescission.

Refusal of the vendee in an executory contract of sale of real estate to perform the contract according to the true interpretation thereof, accompanied by an offer to perform in accordance with the vendee's own erroneous interpretation thereof, does not entitle the vendor til rescission, fl. Same.

To work a release of a contract, a refusal t» perform it must be distinct, unequivocal, and absolute, and must be treated and acted upon as such by the party to whom the broken promise or agreement was made. (Syllabus by the Court.)

Appeal from Circuit Court, Taylor County.

Bill by Adolphus Armstrong against E. L. Ross. Decree for plaintiff, and defendant appeals. Reversed and remanded.

Dent & Dent, for appellant.

Mollohan, McClintic & Mathews, for appellee.

POFFENBARGER, J. E. Lodge Ross complains of a decree of the circuit court of Taylor county requiring him to specifically perform a contract for the sale of certain coal in place, made between him and Adolphus Armstrong, in a manner greatly variant from his Interpretation of the contract, but eon-forming exactly to that of the plaintiff, Armstrong. The memorandum of the sale executed by Ross and delivered to Armstrongreads as follows: "I sell to A. Armstrong the coal in the Barnes & Smith land bought by me under decree at last court There is to be 27 acres of the coal & if not that much coal in the land enough to come from the Smith adjoining land to make the 27 acres as in the deed of said George H. Smith to Jasper M. Smith. For which Armstrong is to pay $500.00 & I am to make him a genal warranty deed for the coal with the right to mine and remove the coal free of damage under the surface, and to air and drainage but he is not to have right of way or roads on the top or surface of the land on which to remove the coal. E. Lodge Ross." Their respective contentions make It necessary to set forth, with some degree of particularity, the documenary evidence relating to the coal, to which reference is made in the memorandum, which describes it as that which the vendor had bought "under decree at last court" That decree was made in a suit brought to sell the real estate of Jasper M. Smith, who acquired it by conveyance from G. H. Smith, to whom it had been conveyed by J. H. Barnes and wife. In the deed from Barnes to G. H. Smith there was granted, to the latter, "a certain tract or parcel of land containing 38 1/2 acres, lying in the waters of Black creek in said county [Taylor] and ten acres of coal adjoining said 38 1/2-acre tract. Each of said tracts was further described as adjoining the land owned by James W. Batson. The deed then described the 38 1/2-acre tract of land, but not the 10 acres of coal, by metes and bounds. The deed from George H. Smith and wife to Jasper M. Smith conveyed the 38 1/2-acre tract describing it by metes and bounds, as It was described in the other deed, and then conveyed the coal in the following terms: "And also twenty-seven acres of coal a part of the same underlying the said tract of land in case there should not be that quantity of coal underlying the said tract of 38 3/4-acres then the residue of the 27 acres of coal is to be surveyed from the coal of the said George H. Smith immediately adjoining the coal under the said 38 3/4 acres tract so as to make in all the said full quantity of 27 acres of coal." The decree of sale under which Ross purchased describes the land as follows: "All that certain parcel of land In this county lying on the waters of Berkeley Run and adjoining lands of Jordan H. Barnes, James W. Batson and others, containing 38% acres and also 27 acres of coal underlying the said tract and other land adjoining thereto, all of which was conveyed to him by George H. Smith and wife by deed dated July 20, 1892." Upon the memorandum above quoted, the plaintiff demanded, and the court decreed to him, all the coal in the tract of land, which consists of two or more veins, and, In addition thereto, 3.88 acres out of the upper or Pittsburg vein of coal in the adjoining lands of George H. Smith, so as to make 27 acres of the Pittsburg vein, it having been ascertained by survey that there were only 23.12 acres of that vein In the 383/4-acre tract. At the date of the making of the contract, the existence of but one vein of coal in the land, the Pittsburg vein, was known. The plaintiff so testifies. This was the upper vein, cropping out on the hill side, and not coextensive with the tract of land.

The defendant's contention is that the plain, tiff Is entitled, under the contract, to have a conveyance of 27 acres of the Pittsburg vein, and no part of any other coal in the 38%-acre tract. He insists that, In construing the contract, the court should take into consideration the situation of the parties, the circumstances surrounding them, and the knowledge they had, respecting coal in the land, at the time the contract was made. Standing upon the strict letter of the written contract, reciting the sale of the coal in the land bought by the vendor under the decree, the plaintiff denies the admissibility of any parol evidence, and Insists that an interpretation of the contract, in accordance with the view of the defendant, in the light of the parol evidence adduced, would work a violation of the rule of law which forbids the introduction of parol evidence to contradict, vary, add to, or alter the terms of a written Instrument. In taking this position, counsel for the appellee assume, for this contract, the solemnity of a deed, and would apply to It a technical rule of construction peculiar to deeds, namely, that a grantor cannot, by a subsequent clause In his deed, destroy or nullify a grant made by him in a preceding clause thereof, and that intention disclosed by earlier clauses in a deed will control that revealed by later ones. Dev. Deeds, § 838. Under It, the stipulation, "I sell to A. Armstrong the coal in the Barnes & Smith land bought by me under decree of last court, " might not be narrowed by the second paragraph of the memorandum, stating the area of the coal and referring to the Smith deed for a description thereof, but we are not called upon to decide the question, for two reasons: First, the rule invoked has been very much Impaired, If not abolished, by decisions of this court and the great weight of modern authority; secondly, the rule, if operative In all its pristine vigor and strength, would not be applicable in the construction of this mere executory contract of sale. "It is an old rule that, In the construction of deeds, the earlier clauses control the later ones, but this rule, In effect, is practically abrogated, or if employed Is only resorted to when reconcilement becomes impossible. The later and better rule would seem to be that inconsistencies are to be reconciled, and, while the former rule may still be applied where a subsequent clause would defeat the grant, It is never permitted to prevail where there Is room for construction. If it is the clear Intent of the grantor that apparently inconsistent provisions of a deed shall all stand, such limitations upon, and interpretation of, the literal signification of the language used will be imposed as will give effect if possible, to all of itsprovisions. On the other hand, where the intention of the parties is decisively shown from one clause, the Intention thus shown will control, notwithstanding ambiguity and inconsistencies in other clauses." Warvelle on Vendors, § 355. "Repugnant words must yield to the purpose of the grant where such purpose is clearly ascertained from the premises of the deed, though such words stand first in the grant." Goldsmith v. Goldsmith, 46 W. Va. 426, 33 S. E. 266. A clause in a deed, reserving a life estate in land to the grantor, subsequent to an ostensible grant, in the same deed, of the land in fee simple, is valid. Mc-Dougal v. Musgrave, 46 W. Va. 509, 33 S. E. 281. No legal title has passed by this contract. It is a mere agreement to convey, for the enforcement of which the appellee has called upon a court of equity. Such court will enforce it only in accordance with the true...