Bossieux v. Shapiro

• Decision Date: 12 June 1930
• Citation: 154 Va. 255
• Parties: BELLE C. BOSSIEUX v. JULIUS AND AARON SHAPIRO.
• Court: Virginia Supreme Court

Page 255

154 Va. 255

BELLE C. BOSSIEUX v. JULIUS AND AARON SHAPIRO.

Supreme Court of Virginia, Wytheville.

June 12, 1930.

Absent, Holt and Hudgins, JJ.

1. DEEDS — Construction — Plat or Map made a Part of Deed by Grantor — Immaterial for Whom the Plat was made by the Surveyor — Case at Bar. — In the instant case, an action for damages by the grantees in a deed for a breach of warranty, it was conceded by both the grantor and the grantees that there was an error in the plat mentioned in the description in the deed. It was, however, contended by the grantor that the plat was made by the surveyor at the instance and request of the grantees and that he was their agent, and that therefore they were estopped.

Held: That regardless of who employed the surveyor to make the plat, the grantor made the plat a part of her deed and in so doing adopted the plat as her own and was bound by it.

2. DEEDS — Construction — Plat or Map made a Part of Deed by Grantor — Immaterial for Whom the Plat was made by the Surveyor. — When a grantor in a deed makes a survey or plat a part of his deed, it makes no difference who made the plat or whom the surveyor was acting for in making it; the grantor by incorporating the plat in his deed, accepts and adopts it as his own and thereafter it will be treated as his own and it is binding on him.

3. RECORDING ACTS — Constructive Notice by Record — Action by Grantee Against his Immediate Grantor for Breach of Covenant. — The doctrine of constructive notice by the record does not apply against a grantee in an action against his immediate grantor for a breach of covenant. As between the grantor and grantee, the grantee is not required to examine the records, but may rely solely on the covenants in his deed for protection even though he have actual notice of encumbrances. Covenants of warranty dispense with inquiry.

4. RECORDING ACTS — Constructive Notice by Record — Action by Grantee against his Immediate Grantor for Breach of Covenant — Case at Bar. — The instant case was an action by grantees against their immediate grantor for breach of covenant. The western wall of the property conveyed had previously been sold by the grantor to one W., and when the grantees attempted to improve their property they learned that they had no western wall to their building, but only an easement of support reserved in the western wall for the grantees' building. The deed of the grantor to the grantees contained a call to the line of W., and the prior deed to W. having been duly recorded the grantor claimed that the grantees had constructive notice of W.'s line.

Held: That what the records would have disclosed had the grantees examined them is immaterial for they would not have been bound by them in this action against their immediate grantor for breach of covenant.

5. DEEDS — Boundaries — Construction by Court or Jury — Case at Bar. — The instant case was an action by the grantees in a deed against the grantor for breach of covenant. The conveyance in question was of three lots, described as numbers 111, 113 and 115. As to number 115, the plat and the description of the property showed that a rear wall was embraced in the boundary sold to the grantees. As to numbers 111 and 113, neither the description in the deed nor the plat showed that any rear wall was embraced in the boundary. The trial court construed the deed as to number 115, but left it to the jury to construe the deed as to numbers 111 and 113.

Held: That as the deed was plain and unambiguous the court should have construed it as to 111 and 113.

6. CONTRACTS — Construction — Questions of Law and Fact. — Where a written contract is clear and unambiguous on its face, it is the duty of the court to construe it.

7. DEEDS — Boundaries — Construction by Court or Jury — Case at Bar. — In the instant case, an action for breach of covenant by the grantees in a deed against the grantor, when the description of the property in the deed and the plat were read together there was no ambiguity. The extrinsic evidence which was permitted by the trial court in no way contradicted the instrument but was rather explanatory of it. This evidence was not inconsistent with the reasonable construction which the court should have given the instrument. However, it was not necessary to receive any extrinsic evidence because the plat and the deed were plain and unambiguous. The property conveyed consisted of three lots, numbers 111, 113 and 115. The court improperly left the construction of the deed as to numbers 111 and 113 to the jury.

Held: That as a matter of law the court should have construed the deed as to all three numbers 111, 113 and 115.

8. DEEDS — Covenants — Action for Breach of Covenant — Shortage in Land — No Actual Shortage — Case at Bar. — The instant case was an action by the grantees in a deed against the grantor for breach of covenant. One of the calls in the deed was "in an easterly direction sixty-six feet, more or less, to the western line of the real estate conveyed" by the grantor to one W. The grantees discovered that the rear wall of the property had been conveyed to W. in his deed, but with an easement of support reserved in the rear wall of the grantees, building. The grantees claimed that they had bought this rear wall and the ground occupied by it and that their deed conveyed the wall and ground to them. The jury were instructed by the trial court that if they found for the plaintiff they were to fix a reasonable sum for the ground occupied by the wall.

Held: That the evidence failed to disclose a shortage in the land. The description expressly recited that the land sold only ran back to the W. property, and the line of the W. property was the western face of the western wall of his building.

9. DEEDS — More or Less — Difference in Length of Line — Monuments and Calls — Case at Bar. — According to a deed the northern line of the property in question ran back a distance of sixty-six feet more or less to the western line of the property of one W. The western line of the W. property was only 64.67 feet back. A difference, however, of 1.33 feet existing in the call being so small and the W. wall being a monument, the words "more or less" are sufficient to cover the dificiency.

10. BOUNDARIES — Monuments — Courses and Distances. — In surveys, where there is a conflict between course and distance and a monument, the monument will prevail. Especially is this true where the term, more or less, is used and the variance is insignificant.

11. DEEDS — Action for Breach of Covenant — Failure of Grantor to Convey Rear Wall of Building — Measure of Damages — Case at Bar. — The instant case was an action by the grantees in a deed against the grantor for breach of convenant. The subject of the conveyance was three lots, numbers 111, 113 and 115. The grantees were not entitled to a rear wall behind numbers 111 and 113 and they were not entitled to any damages for any shortage in the land, because they received all of the land their deed called for, but they were entitled to damages for the failure of the grantor to give them the rear wall behind lot number 115. Under these circumstances the measure of damage is the difference between the value of the property with a rear wall behind number 115 and the value of the property without such wall, less the value of the easement reserved for the benefit of number 115 in the rear wall in the prior deed of the grantor to the grantee of the rear wall.

Error to a judgment of the Circuit Court of Henrico county, in a proceeding by motion for a judgment for damages. Judgment for plaintiffs. Defendant assigns error.

The opinion states the case.

Allen G. Collins and Horace H. Edwards, for the plaintiff in error.

David Meade White and Isador Shapiro, for the defendants in error.

GREGORY, J., delivered the opinion of the court.

The appellant, who was the defendant in the trial court, conveyed to Julius and Aaron Shapiro certain real estate in the city of Richmond, briefly described as numbers 111, 113 and 115. The deed was executed and delivered on December 1, 1922. The description in the deed is as follows: "The following real estate with improvements thereon and the rights, privileges and appurtenances thereunto belonging, situated in the city of Richmond, State of Virginia, on the eastern line of 18th street, between Franklin and Grace streets, and bounded according to a survey made by T. Crawford Redd & Bro., dated November 29, 1922, hereto attached and made a part of this deed, as follows: Commencing at a point on said eastern line of 18th street, distant 99.73' north of its intersection with the northern line of Franklin street or at the northern line of an alley at a point where said alley intersects the said eastern line of 18th street, running thence in a northerly direction along said eastern line of 18th street, and fronting thereon 65.11' to the southern line of the property on its north, and running back from said front line in an easterly direction sixty-six feet, more or less, to the western line of the real estate conveyed by said Belle C. Bossieux to Michael Wolf, and bounded on the north by said alley before mentioned."

The western wall of the property which had previously been sold by Belle C. Bossieux to Wolf was the western line of the Wolf property referred to in the description, and served as a rear wall to the building on the Shapiro property. It also served as a side wall to the building on the Wolf property. This wall is in controversy.

In 1925 when the Shapiros attempted to improve their property they opened this rear wall, where it adjoined number 115, to establish therein an iron beam, and when Wolf discovered...