Camp v. Camp, 771729

• Decision Date: 21 November 1979
• Docket Number: No. 771729,771729
• Parties: Hilda CAMP et al. v. Tincy CAMP. Record
• Court: Virginia Supreme Court

Page 243

260 S.E.2d 243

220 Va. 595

Hilda CAMP et al. v. Tincy CAMP.

Record No. 771729.

Supreme Court of Virginia.

Nov. 21, 1979.

Randolph L. Herring, Richmond, for appellants.

No brief or argument for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this appeal, we must construe a deed to determine the title acquired by a mother and son to real property conveyed to them "as tenants in common with the right of survivorship as at common law."

The issue arose in the following manner, as revealed by the pleadings and a summary statement of the facts prepared by the trial judge. In 1955, Robert Camp, Jr., unmarried, and appellee Tincy Camp, his mother, agreed to purchase a house and lot located in the City of Richmond. Tincy Camp consulted a Richmond attorney who, at her request, drew the deed in question, which was duly executed and admitted to record.

The deed contained the usual formal parts. The premise included the names of the three grantors as "parties of the first part" and the son and mother as "parties of the second part." The next paragraph contained the consideration, the recital of payment of purchase money, and the granting clause (there was no habendum), as follows:

That for and in consideration of the sum of Ten ($10.00) Dollars, receipt whereof is hereby acknowledged, and other good and valuable consideration, the said parties of the first part do grant and convey with general warranty of title unto the said parties of the second part, as tenants in common with the right of survivorship as at common law, the following described real estate, to-wit:

Next came the description followed by a paragraph making the conveyance subject to recorded restrictions affecting the property. Then the deed provided for assumption by the grantees of the obligations of two prior deeds of trust on the property. These provisions were followed by a paragraph containing the English covenants of title and by the conclusion executed by all five parties.

Robert Camp, Jr., married appellant Hilda Camp in 1956. He died in 1966 survived by his widow, six children (who are also appellants), and by his mother. Thereafter, a dispute arose between the mother and the widow as to the ownership of the property in question.

Subsequently, the widow, in her own name and on behalf of her children, filed the instant petition for declaratory judgment in equity against the mother asserting that the property was conveyed to mother and son as tenants in common and seeking a declaration that the widow and children had "a one-half legal interest in said property." In response, the mother maintained she was a joint tenant under the deed and, because she survived her son, had a fee simple interest in the property.

The chancellor received the ore tenus testimony of the attorney who drew the deed and, after considering argument of counsel for the parties, decided in favor of the mother. The trial court, in the August 1977 order appealed from, found that when the deed was drafted, the intention of the mother and son was to have the real estate conveyed to them as joint tenants with the right of survivorship as at common law. The court also found that the attorney "was in error . . . as to the correct terminology to be used to create survivorship between the parties," that "tenants in common" was intended to be "joint tenants," and "that it manifestly appear(ed) to the court from the tenor of the deed and from the evidence in the case, that it was intended that the part of the first to die should then belong to the other." Consequently, the court below ruled that the real estate passed by operation of law to the mother, Tincy Camp, in fee simple. We think the trial court erred.

Initially, several fundamental rules for the construction of deeds should be reviewed. The prime consideration, as with any writing, is to determine the intention of the parties executing the instrument. The intention, including a finding as to the estate conveyed, should be ascertained from the language used in the deed, if possible. Phipps v. Leftwich, 216 Va. 706, 710, 222 S.E.2d 536, 539 (1976). If the language is explicit and the intention is thereby free from doubt, such intention is controlling, if not contrary to law or to public policy, and auxiliary rules of construction should not be used. 4 H. Tiffany, The Law of Real Property § 977 (3d ed. 1975). If, on the other hand, the instrument is uncertain and ambiguous, oral evidence may be received to show all the attendant circumstances existing at the time the deed was executed, including the situation of the parties and their relationship. But "(p)arol Contemporaneous evidence is, in general, inadmissible to contradict or vary the terms of a valid written instrument (because) . . . (t)he writing is the only outward and visible expression of the meaning of the parties, and to allow it to be varied or contradicted by verbal testimony of what passed at or before its making, would be to postpone the more certain and reliable mode of proof, to the more precarious and less trustworthy; to prefer the less good to the Best evidence." 2 J. Minor, Institutes of Common and Statute Law 1059 (4th ed. 1892). Finally, where two clauses are irreconcilably repugnant in a deed, the first prevails. Mills v. Embrey, 166 Va. 383, 387, 186 S.E. 47, 49 (1936). The foregoing rule is to be applied, however, only in the case of "rigorous necessity" and when the two clauses are absolutely incapable of reconciliation. 2 J. Minor, Supra.

Against this background, we now turn to the facts of this case. The attorney who drew the deed, testifying 22 years after the event, stated that he recalled talking to Tincy Camp about preparing the deed. She told counsel, he said, that her son was to buy the property for her and that the son wanted her to live there for the remainder of her life. The attorney stated the mother said the "longer liver" of the mother and son was "to get all of the property." Counsel testified he had never before drawn a deed between "tenants by the entireties" except when a husband and wife were involved and, because of this, h...