Blake v. Hedrick

• Decision Date: 30 October 1923
• Docket Number: (No. 4861.)
• Parties: BLAKE . v. HEDRICK.
• Court: West Virginia Supreme Court

120 S.E. 906

BLAKE .

v.HEDRICK.

(No. 4861.)

Supreme Court of Appeals of West Virginia.

Oct. 30, 1923.

Rehearing Denied Jan. 29, 1924.

(Syllabus by the Court.)

Appeal from Circuit Court, Greenbrier County.

Suit by G. W. Blake against D. F. Hedrick. From a decree for plaintiff, defendant appeals. Reversed and remanded.

Mark L. Jarrett, of Lewisburg, for appellant.

Chas. S. Dice, of Lewisburg, for appellee.

MILLER, P. The object of this suit was to have canceled a certain contract or memorandum for the purchase of real property signed by plaintiff, to enjoin defendant from the collection of a judgment at law for a part of the purchase money therefor and the recovery of the deferred payments not yet due, and to recover from defendant the sum already paid on the contract. On the bill, answer and depositions taken and filed in the cause, the lower court decreed plaintiff the relief prayed for.

Defendant sold at auction a tract of land containing 73 acres and 20 poles; plaintiff was the highest bidder, and the land was knocked down to him at the price of $50.00 per acre. He executed and signed a contract, certifying that he had that day purchased the land and agreeing to pay the sum of $50.00 per acre, on the terms announced at the sale, which was one-third cash and the remainder in one, two and three years. Plaintiff paid defendant $500.00 on the day of sale; and the judgment sought to have enjoined was for the balance of the cash payment named in the terms of sale. Later plaintiff by writing demanded that defendant return to him the cash payment made and attempted to rescind his contract for the purchase of the land, on the ground that defendant had not complied with his part of the contract.

Plaintiff's main ground for refusal to take the land is that defendant did not have good title to the property. Several grounds are pleaded and relied on, but each of them depends on the alleged defect in defendant's title: and if the title was good, they become immaterial.

Defendant's title was derived by deed from Julia E. Bright, which, omitting only the description of the land conveyed, is as follows:

"Wm. Mc. Bright et ux. to D. F. Hedrick et ux.

"This deed made the 7th day of October, 1907, between W. Mc. Bright and Julia E. Bright, his wife, of Greenbrier County and State of West Va., of the first part and D. P. Hedrick and A. C. Hedrick, his wife, of the same county and state, of the second part.

"Witnesseth. that in consideration of the sum of ten dollars and other valuable consideration do grant unto the said the following described real estate: * * *

"And the said parties of the first part cove nant to and with the said parties of the second part that they have the right to convey the said land to the grantee, and that they will warrant generally the property hereby conveyed."

The defect pointed out and relied on by plaintiff is that neither the names of the grantors nor those of the grantees are found in the granting clause of the deed, and that, therefore, it is an absolute nullity. Within a few days after its execution and delivery the deed was duly recorded; and defendant entered upon the property and continued in possession thereof until the sale to plaintiff, a period of over fourteen years, without any adverse claim thereto on the part of the Brights or any other person.

In support of his contention that every deed must name a grantor and a grantee, plaintiff cites our case of Lafferty v. Lafferty, 42 W. Va. 783, 26 S. E. 262. In that case one of the parties signing and acknowledging the deed was not mentioned in the deed itself, and it was held that the deed did not convey his interest in the property. In the case of Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 90, cited, it was held that a deed in blank in which the name of the grantee was not inserted by the party authorized to fill it in, before the deed was delivered, passed no interest. In Bank et al. v. Rice, 4 How. 225, 11 L. Ed. 949, also cited, the names of the wives of two of the grantors, while signed to the deed, were not incorporated in the instrument, and the wives being the owners in fee of the land, it was held that the deed conveyed the marital interest of the husbands therein, but nothing more.

The rule laid down in our cases, applicable to this case, is that in construing a deed effect must always be given to the plain intent of the parties, when such intent can be ascertained from the instrument taken as a whole and is not repugnant to any rule of law. Roberts v. Gas Co., 89 W. Va. 384, 109 S. E. 348; Irvin v. Stover, 67 W. Va. 356, 67 S. E. 1119; Waldron v. Coal Co., 61 W. Va. 280. 56 S. E. 492; Uhl v. Railroad Co., 51 W. Va. 106, 41 S. E. 340: 4 Enc. Dig. Va. & W. Va. Rep. 419, 420. See, also, 2 Devlin on Deeds, §§ 836, 836a. What other intent can we gather from the deed in question than that the parties named therein as parties of the first part intended to convey to the persons named as parties of the second part the land described? There can be no question that Bright and wife are the grantors. They are named in the instrument as the parties of the first part; they signed, sealed and acknowledged the same, and delivered it to the Hedricks. As recorded the deed imports that it was a conveyance from "Wm. Mc. Bright et ux. to D. F. Hedrick et ux." This fact is...