Bennett v. Dove, 14759

• Decision Date: 05 May 1981
• Docket Number: No. 14759,14759
• Citation: 277 S.E.2d 617,166 W.Va. 772
• Court: West Virginia Supreme Court
• Parties: Merle BENNETT et al. v. Robert DOVE et al.

Page 617

277 S.E.2d 617

166 W.Va. 772

Merle BENNETT et al. v. Robert DOVE et al.

No. 14759.

Supreme Court of Appeals of West Virginia.

May 5, 1981.

Syllabus by the Court

1. "A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 1.

2. "It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them." Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 3.

3. "It is the safest and best mode of construction to give words, free from ambiguity, their plain and ordinary meaning." Williams v. South Penn Oil Co., 52 W.Va. 181, 43 S.E. 214 (1902), Syllabus Point 4.

4. A deed clause reserving a "right of first refusal" to a grantor, to purchase the property conveyed if the grantee desires to sell the property, is not violated by the grantee's gift of the property without having first proffered it to the grantor.

Geary & Geary and Dennis V. DiBenedetto, Petersburg, for appellants.

Sponaugle & Sponaugle and George I. Sponaugle II, Franklin, for appellees.

HARSHBARGER, Chief Justice:

Merle Bennett, Barbara M. Bennett, and Mabel Bennett brought this action against Robert Dove and others to void a conveyance from Robert Dove to two of his children. There was a "right of first refusal" clause contained in the 1956 deed by which Bennett conveyed the property to Dove, and Bennett also sought specific performance of that right. The trial court ruled that Dove's deed to the children was void because the preemptive right provision had been violated.

The clause was: "It was understood and agreed between the parties hereto that ... in the event the party of the second part (Robert Dove) desires to sell said real estate he shall give to the parties of the first part the first opportunity to purchase same." Robert Dove took possession of the property, built a home and continues to reside there.

The deed to the Dove children had as its declaration of consideration or value, that it was not subject to our state excise tax upon the privilege of transferring real estate because the conveyance accomplished a gift between parent and children. See W.Va.Code, 11-22-1, et seq.

After affording the parties an opportunity to brief the legal issues, the trial court ruled that the gift violated the clause. Then Dove stated that he had offered plaintiff, Mabel Bennett, the right to purchase the property but she had turned down the offer. This factual issue was tried to a jury, which returned a verdict in favor of the plaintiff, Mabel Bennett, concluding that he had not offered her an opportunity to buy it.

The trial court decided the preemptive right clause created a personal right limited to Jimmy and Mabel Bennett and thus did not violate the rule against perpetuities nor constitute an unlawful restraint upon alienation of real property. There was no challenge here to this ruling.

A fundamental rule of law is that a court, in deciding disputes about the meaning of a contract, deed, or will, will endeavor to carry into effect the intent of the parties to the agreement, seeking first to ascertain such intent from the instrument itself. It is also true that "(a) valid written instrument which expressed the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent." Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962), Syllabus Point 1; ...