City of Wheeling v. Zane, No. 12804

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation154 W.Va. 34,173 S.E.2d 158
PartiesThe CITY OF WHEELING, a Municipal Corporation, Appellee, v. Paul E. ZANE et al., etc., Defendants Below, and Cordelia Hays et al., Appellants.
Decision Date31 March 1970
Docket NumberNo. 12804

Page 158

173 S.E.2d 158
154 W.Va. 34
The CITY OF WHEELING, a Municipal Corporation, Appellee,
v.
Paul E. ZANE et al., etc., Defendants Below,
and
Cordelia Hays et al., Appellants.
No. 12804.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 17, 1970.
Decided March 31, 1970.

Page 159

Syllabus by the Court

1. A right of re-entry retained in a conveyance of land, though not an estate, is a future interest which descends to the heir of the grantor at the time of his death and from such heir is transmitted according to the statute of descent and distribution to the heirs of the grantor at the time the right of entry accrues upon breach of the condition provided by the conveyance.

[154 W.Va. 35] 2. Upon breach of condition subsequent and entry upon land conveyed by deed in which the grantor retained a right of re-entry, his heirs, who are the descendants, under the statute of descent and distribution, of his heir at the time of his death, acquire an immediate possessory estate in fee simple in the land conveyed and are entitled to share, to the extent of their respective interests in the land, the compensation awarded and paid for it when taken from them in a proceeding in eminent domain.

Jay T. McCamic, Frank A. O'Brien, Jr., Wheeling, Abraham Pinsky, Weirton, for appellants.

Page 160

Gompers & Buch, Joseph A. Gompers, Harry L. Buch, James F. Companion, for one of defendants below, for appellee.

Francis J. Love, Wheeling, for defendants below.

HAYMOND, Judge.

In this proceeding in eminent domain, instituted in the Circuit Court of Ohio County, the applicant and petitioner, The City of Wheeling, a municipal corporation, acquired a certain lot or parcel of land in that city, which was formerly owned by Noah Zane. Under a deed dated January 13, 1821, made by Noah Zane to The City of Wheeling, the city used and occupied the land as a 'market house' until March 24, 1964. In the deed the grantor Zane expressly retained the power to re-enter upon and possess and enjoy the land conveyed when the city ceased to use it as a 'market house.' After the breach of condition by the city, when it discontinued the use of the property as a 'market house', the heirs of Noah Zane exercised the right of re-entry and entered and took possession of the land. Subsequently The City of Wheeling instituted this proceeding in eminent domain and again acquired ownership of the property.

[154 W.Va. 36] Commissioners appointed reported $85,000.00 as just compensation and, by order entered July 28, 1966, the court approved and confirmed the report of the commissioners, and referred the proceeding to a commissioner of the court to take the evidence of all the parties and to determine the rights and claims of all persons entitled to the money paid into court or to any interest or share in it. The commissioner reported that the interest or right of re-entry in the land descended to the living heirs of Noah Zane at the time of his death, which appears to have occurred about the year 1831, and to their heirs upon their deaths, and so on, and that the defendants as the heirs of Noah Zane owned these respective interests in the land and are entitled to such interests in the compensation award: Thomas Russell Shelton, Jr., as the descendant of Carolina Z. Shriver, the daughter and one of the two living heirs of Noah Zane at the time of his death, an undivided one-half (1/2) or thirty-two sixty-fourths (32/64ths) interest, and the remaining twelve defendants, as the descendants of Platoff Zane, the son and other living heir of Noah Zane at the time of his death, the remaining undivided one-half (1/2) or thirty-two sixty-fourths (32/64ths) interest in these proportions: Diane H. Haire, four sixty-fourths (4/64ths); Mary E. Ridgely, four sixty-fourths (4/64ths); Alexander Euston, two sixty-fourths (2/64ths); Elmer Euston, two sixty-fourths (2/64ths); William L. Woods, one sixty-fourth (1/64th); Bette W. Hugus, one sixty-fourth (1/64th); T. M. Cummins, Jr., one sixty-fourth (1/64th); Blanche C. Davis, one sixty-fourth (1/64th); Paul E. Zane, four sixty-fourths (4/64ths); Ellsworth Zane, four sixty-fourths (4/64ths); Eugene Zane, four sixty-fourths (4/64ths); and Betty Z. Hercules, four sixty-fourths (4/64ths), all of which interests are shown by the Noah Zane family tree filed as Exhibit E with the report of the commissioner.

The report was filed by order entered June 9, 1967, at which time certain defendants filed exceptions to the report and the court took under advisement the determination of the share of each party in interest with leave to counsel for each of the parties to file briefs.

[154 W.Va. 37] On November 30, 1967, a hearing was had upon the report, the exceptions to it, and the briefs and the arguments of counsel for the respective parties. By final judgment rendered April 24, 1968, the circuit court, for reasons set forth in a memorandum of opinion filed as part of the record in this proceeding, held that the parties, as heirs of Noah Zane, were entitled to distribution in the respective shares reported by the commissioner as indicated in Exhibit E with the report and as set forth earlier in this opinion, overruled the motion of those who excepted to the report for a

Page 161

rehearing, and required the costs of the proceeding to be paid by the petitioner, The City of Wheeling.

From the final judgment of April 24, 1968, this Court granted this appeal upon the application of the defendants and appellants Diane H. Haire (Cordelia E. Hays), Mary E. Ridgely, Alexander Euston, Elmer Euston, William L. Woods, Betty W. Hugus, T. M. Cummins, Jr. and Blanche C. Davis.

The error assigned and relied upon for reversal by the appellants is that the judgment of the circuit court is violative of Section 3, Article 1, Chapter 42, Code, 1931, as amended, and contrary to the decision of this Court in Overton v. Heckathorn, 81 W.Va. 640, 95 S.E. 82, and the decisions in other cited cases.

The appellants contend, in substance, that the heirs of Noah Zane are to be determined with respect to the right of re-entry at the time the breach of condition occurred and the right of re-entry accrued in 1964; that the right of re-entry did not descend to the two children and heirs at law of Noah Zane at the time of his death but instead descended to his heirs at the time the re-entry accrued; that under Section 3, Article 1, Chapter 42, Code 1931, as amended, which applies to the right of re-entry, persons in equal degree of kinship to the intestate ancestor take per capita and that when some of them are dead and some are living the descendants of the deceased persons of the class take the share of their deceased ancestor per stirpes.

[154 W.Va. 38] The present controversy in this proceeding is between the present heirs of Noah Zane, who are the appellants and the other defendants, with respect to the interest of each in the compensation paid for the land. The appellants are some of the direct descendants of Platoff Zane, the surviving son of Noah Zane, the defendant Thomas Russell Shelton, Jr., is a direct descendant of Carolina Z. Shriver, the surviving daughter of Noah Zane, and the defendants Paul E. Zane, Ellsworth Zane, Eugene Zane and Betty Z. Hercules are the other direct descendants of Platoff Zane.

The questions for determination are whether the right of re-entry is inheritable and if so whether it descends to the heirs of the grantor at the time of his death or to his heirs at the time such right of re-entry accrues and is exercised.

No decision of this Court considers and resolves the precise questions presented by this appeal and they are questions of first impression in this State. They have been considered and determined, however, by appellate courts in other jurisdictions and though there is some conflict in the decisions, the clear weight of authority is that right of re-entry and possibility of reverter are descendible in the same manner as other future interests, that statutes of descent and distribution apply to a right of re-entry and a possibility of reverter, and that they descend to the heir of the original owner at the time of the death of such owner.

A possibility of reverter, as distinguished from a reversion, is not an estate at common law and in the case of a fee limited on a condition subsequent a possibility of reverter is a contingent right of re-entry on condition broken. At common law a possibility of reverter is inalienable, is not assignable and is not devisable. It is, however, descendible and may be released by the grantor. 31 C.J.S. Estates § 105b.

In 23 Am.Jur.2d,...

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4 practice notes
  • State v. Bailey, No. 12922
    • United States
    • Supreme Court of West Virginia
    • March 31, 1970
    ...or state. Hence this Court is wholly without jurisdiction to entertain this writ, and it must be dismissed as improvidently awarded.' [154 W.Va. 34] As the offense for which the defendant has been indicted and is subject to trial in this criminal proceeding does not in anywise relate to the......
  • Moroney v. St. John Missionary Baptist Church, Inc., 14-20-00203-CV
    • United States
    • Court of Appeals of Texas
    • November 4, 2021
    ...that, generally, heirs have not needed to be referenced in a deed to enforce the grantor's right of entry. See City of Wheeling v. Zane , 154 W.Va. 34, 173 S.E. 2d 158, 162 (1970) ("The death of the creator of an estate subject to a condition subsequent does not extinguish the right of re-e......
  • United States v. Integrated Cmty. Servs. of Parkersburg, Inc., Civil Action No. 2:19-cv-00506
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • September 28, 2020
    ...on a condition subsequent[,] a possibility of reverter is a contingent right of re-entry on condition broken." Cty. Of Wheeling v. Zane, 173 S.E.2d 158, 161 (W. Va. 1970). If a deed contains a possibility of reverter and a condition subsequent, title to the deeded property will revest with ......
  • Moroney v. St. John Missionary Baptist Church, Inc., 14-20-00203-CV
    • United States
    • Court of Appeals of Texas
    • November 4, 2021
    ...that, generally, heirs have not needed to be referenced in a deed to enforce the grantor's right of entry. See City of Wheeling v. Zane, 173 S.E.2d 158, 162 (W.Va. 1970) ("The death of the creator of an estate subject to a condition subsequent does not extinguish the right of re-entry for c......
4 cases
  • State v. Bailey, No. 12922
    • United States
    • Supreme Court of West Virginia
    • March 31, 1970
    ...or state. Hence this Court is wholly without jurisdiction to entertain this writ, and it must be dismissed as improvidently awarded.' [154 W.Va. 34] As the offense for which the defendant has been indicted and is subject to trial in this criminal proceeding does not in anywise relate to the......
  • Moroney v. St. John Missionary Baptist Church, Inc., 14-20-00203-CV
    • United States
    • Court of Appeals of Texas
    • November 4, 2021
    ...that, generally, heirs have not needed to be referenced in a deed to enforce the grantor's right of entry. See City of Wheeling v. Zane , 154 W.Va. 34, 173 S.E. 2d 158, 162 (1970) ("The death of the creator of an estate subject to a condition subsequent does not extinguish the right of re-e......
  • United States v. Integrated Cmty. Servs. of Parkersburg, Inc., Civil Action No. 2:19-cv-00506
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • September 28, 2020
    ...on a condition subsequent[,] a possibility of reverter is a contingent right of re-entry on condition broken." Cty. Of Wheeling v. Zane, 173 S.E.2d 158, 161 (W. Va. 1970). If a deed contains a possibility of reverter and a condition subsequent, title to the deeded property will revest with ......
  • Moroney v. St. John Missionary Baptist Church, Inc., 14-20-00203-CV
    • United States
    • Court of Appeals of Texas
    • November 4, 2021
    ...that, generally, heirs have not needed to be referenced in a deed to enforce the grantor's right of entry. See City of Wheeling v. Zane, 173 S.E.2d 158, 162 (W.Va. 1970) ("The death of the creator of an estate subject to a condition subsequent does not extinguish the right of re-entry for c......

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