Bank v. Catzen

• Decision Date: 11 February 1908
• Citation: 60 S.E. 499,63 W.Va. 535
• Court: West Virginia Supreme Court
• Parties: BANK et al. v. CATZEN et al.

60 S.E. 499

63 W.Va. 535

BANK et al.

v.CATZEN et al.

Supreme Court of Appeals of West Virginia.

Feb. 11, 1908.

1. Deeds — Construction — Intent of Parties.

In deeds, contracts, and other instruments, both technical and nontechnical, words are sometimes given meanings variant from the significations they ordinarily have, and, when it is manifest that the parties intended them to have a restricted or peculiar signification, such in-tention will be respected and enforced by the courts.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 231-249.]

2. Evidence — Parol Evidence — Explanation of Deed.

When, in attempting to apply a deed to its subject-matter or the parties thereto, a latent ambiguity of any kind is disclosed, parol evidence is admissible to a limited extent to show what was intended, not only by the instrument considered as a whole, but also by particular words or clauses thereof.

[Ed. Note.—For cases in point, see Cent Dig. vol. 20, Evidence, §§ 2093-2101.]

3. Same.

Parol evidence, admissible for such purpose, is generally limited to the subject-matter, the relation of the parties thereto, their prior and subsequent conduct, their situation, and all the facts and circumstances existing at the time of the execution of the instrument.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 20G6-2084.]

4. Deed—Description of Property—"Eastern One-Half."

The term "eastern one-half, " in a deed conveying one-half of a tract of land, in the absence of admissible parol evidence disclosing a different intention, would mean the eastern half, formed by a line to be run due north and south through the tract; but, if it appears that before the deed was executed a division into two parts, supposedly equal in area, had been made by a line, having a different bearing, actually marked on the ground by stakes and fences, according to which possession had been held for a number of years, and the parties have since held possession according to such line, the words must be taken to mean the eastern one-half as so laid off and held in severalty.

(Syllabus by the Court.)

Error to Circuit Court, McDowell County.

Action by H. Bank and others against Aaron Catzen and others. Judgment for plaintiffs, and defendants bring error. Reversed and remanded.

Rucker, Anderson, Strother & Hughes, for plaintiffs in error.

Cook & Howard, for defendants in error.

POFFENBARGER, P. Judgment for the plaintiff in an action of ejectment, rendered by the circuit court of McDowell county, on an agreed statement of facts. in favor of H. Bank and others against Aaron Catzen and others, is the matter complained of here.

G. H. Lawson, the owner of a tract of 10 acres of land, irregular in form, but oblong, the longer lines thereof running northeast and southwest, and the shorter lines northwest and southeast, conveyed one-half thereof to G. B. Buchanan, by a deed which describes the part conveyed as follows: "One-half interest in a certain tract of land containing ten acres, said one-half interest to be taken off the west end of said tract of land." Prior to the execution of this deed, and in anticipation of the purchase of one-half of the land by Buchanan, he and Lawson went upon the land and attempted to divide it equally by establishing a line through the same on which stakes were driven at intervals of a few feet, and building a fence on each side of the line so marked, leaving a lane about 10 feet wide between the fences. Later Lawson and wife entered into a contract with H. Bank and W. H. Show for the sale of "the eastern half of the tract." Still later, Buchanan and wife conveyed to Aaron Catzen their part of the land, describing it as "being the west end of said tract." Then Lawson and wife conveyed to Bank, Show, and one Levinstein, in pursuance of the contract above mentioned, "the eastern one-half of said ten acres of land." This conveyance was made May 1, 1906, and since that date the parties have held possession in accordance with the line marked out by Lawson and Buchanan on the 26th day of September, 1900. It has since been ascertained that this line does not divide the land equally. The western end, held by Catzen, contains.76 acres more than the eastern end, held by Bank and others, wherefore, to make an equal division by quantity, Bank and others are entitled to.88 of an acre of the land now in Catzen's possession. It is agreed that at the time the division line was established the parties did not know the magnetic course thereof, and that at the time of the execution of the deed to Buchanan there was an agreement between the parties thereto to so change the line "as to conform to the intention of the parties as expressed in the deed, " if it did not do so as it was then established. The benefit of objections to the admissibility of any of the agreed facts was reserved by a stipulation in the agreement as to the facts. This action was brought, not only to recover the.88 of an acre, but to obtain it in such manner as to change altogether the line established before the deeds were executed. This line is almost parallel with the northeastern line of the entire tract, the course of which is S. 11° E., while that of the division line is S. 13° E. The demand set up in the declaration is based upon the location of a division line running due north and south, on the theory that the deed contemplates such a line. A recovery of the land demanded would change both termini of this division line, throwing the north end east and south end west. This is vigorously resisted by Catzen because the effect of it would be to take practically all of the additional land out of what is regarded as his frontage, land suitable for building purposes, now very valuable because of its location and character. Catzen insists that, If the plaintiffs are entitled to the additional area, the whole line should be set over so as not to change the form of his land, nor to take an undue portion of the part thereof that is suitable for building purposes. As the terms, "the eastern one-half of the ten acres of land, " conveyed to the plaintiffs by Lawson and wife had at the time of the execution of the deed a certain fixed and definite meaning, acquired by the previous conduct of the parties thereto and others interested in the property, well known to them, and therefore undoubtedly fixed in their minds at the time of the consummation of the conveyance, wemust assume that these words were used in that sense, although, in the absence of any proof or this circumstance, the parties would be deemed to have...