Greco v. Meadow River Coal & Land Co., 11080

• Citation: 113 S.E.2d 79,145 W.Va. 153
• Decision Date: 08 March 1960
• Docket Number: No. 11080,11080
• Court: West Virginia Supreme Court
• Parties: Nicolina Michienzi GRECO, Individually and as Executrix of the Estate of Dominic Greco et al. v. MEADOW RIVER COAL AND LAND COMPANY, a Corporation, et al.

Page 79

113 S.E.2d 79

145 W.Va. 153

Nicolina Michienzi GRECO, Individually and as Executrix of

the Estate of Dominic Greco et al. v. MEADOW RIVER COAL AND LAND COMPANY, a Corporation, et al.

No. 11080.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1960.

Decided March 8, 1960.

Syllabus by the Court.

1. Though clearly expressed intention of parties to an instrument will not preclude the enforcement of the rule against perpetuities, the rule of property being absolute and arbitrarily enforced, such intention must be considered for the purpose of determining whether the rule should be applied.

2. Where a deed conveying real estate contains a covenant binding the grantor to convey to the grantee other land on the happening of a definite contingency, the consideration for the further conveyance being paid by the grantee, the covenant, on delivery of the deed, vests in the grantee an equitable interest in the land described in the covenant, and the rule against perpetuities has no application thereto.

3. A covenant contained in a deed, binding the grantor to convey to the grantee other land in the event of the happening of a definite contingency, will be specifically enforced in a court of equity, at the instance of the grantee, on the happening of the contingency, unless the covenant is too indefinite or violates some positive rule of law.

4. Where a grantor has covenanted in a deed to convey certain land to the grantee, and, subsequent to the recordation of the deed, has attempted to convey the land described in the covenant to another, the grantee may have specific performance of the covenant in a court of equity.

5. 'To raise an equitable estoppel there must be conduct, acts, language or silence amounting to a representation or a concealment of material facts.' Point 7, Syllabus, Stuart v. Lake Washington Realty Corporation, 141 W.Va. 627 .

6. Though a covenantee in an agreement to convey real estate may have a right of action for damages against the covenantor for breach of the covenant, the equitable remedy of specific performance is available where the action for damages will not afford plaintiff an adequate recovery.

Mahan, White, Higgins & Graney, Stanley Higgins, Jr., Fayetteville, for appellants.

J. W. Maxwell, Joseph Luchini, Beckley, for appellees.

GIVEN, Judge.

This appeal was granted to a decree entered by the Circuit Court of Greenbrier County, in a proceeding wherein two suits, prosecuted for the purpose of having specific performance of covenants contained in two deeds, were consolidated. The circuit court decreed specific performance of the covenants, holding invalid, in part, a deed executed by the defendant, Meadow River Coal and Land Company, hereinafter referred to as Meadow River, to defendants, K. A. Barnett and R. W. Barnett, subsequent to the date of the deeds containing the covenants. One of such suits was instituted by Nicolina Michienzi Greco, against Meadow River, K. A. Barnett and R. W. Barnett. The other suit was instituted by Nicolina Michienzi Greco, individually and as executrix of the estate of Dominic Greco, and Vincent Greco, against the same defendants.

By deed dated June 10, 1937, Meadow River conveyed to Nicolina Michienzi Greco lots 11 and 12 of a subdivision owned by Meadow River. The particular description contained in the deed was by metes and bounds, revealing that the entire frontage of the two lots conveyed ran with the easterly right of way line of the public highway, referred to as United States Route No. 60, or 'The Midland Trail'. The other deed, dated September 4, 1937, was executed by Meadow River to Dominic Greco, and conveyed lots 13 and 14 of the same subdivision, also described particularly by metes and bounds, revealing that the front lines of the two lots were also coextensive with the easterly line of the public highway. The two deeds were duly recorded soon after their execution and delivery.

The deeds contained covenants to the same effect, except as the names of the grantees, as follows: 'It is further understood and agreed that if the said State Road Commission changes the present location of the Midland Trail westerly, to the location tentatively agreed upon prior to the date of this deed, as is evidenced by its previous survey and location stakes along the eastern side of the N. F. & G. R. R. right-of-way, and by its exploratory work at the river, on the Hayslett property; thence the said The Meadow River Coal and Land Company agrees, without further cost, to convey to the said Domenick Greco, a general warranty deed, subject to the reservations herein noted, to the strip of land lying between the property herein conveyed and the eastern boundary line of the new right-of-way of the said Midland Trail'.

By deed dated September 25, 1950, Meadow River conveyed to defendants K. A. Barnett and R. W. Barnett the surface of a parcel of land described by metes and bounds, containing 0.79 of an acre, and which included the land here in controversy, and which is contended by appellees to be situated between the front lines of the hour lots conveyed by the two Greco deeds, and the right of way line of the relocated public way, United States Route No. 60.

The State, by the state road commissioner, on the tenth day of June, 1953, instituted a proceeding in the Circuit Court of Greenbrier County against K. A. Barnett, R. W. Barnett, and others, for the purpose of acquiring an easement over the 0.79 of an acre conveyed by the deed of September 25, 1950, for the purpose of 'constructing * * * altering and otherwise improving and maintaining' the state road, and which included the land here involved. By judgment entered in the proceeding on July 28, 1953, an 'easement' over and through the parcel of land was ordered 'vested' in the State of West Virginia. Neither Meadow River nor the Grecos were parties to the proceeding in eminent domain.

Depositions were taken, from which it appears that at the time of the execution of the deeds to Grecos, the state road commissioner had surveyd, platted, located and staked lines for the proposed new or changed location of Route 60, as it passed in front of lots 11, 12, 13 and 14, and that the new location was westerly from such lots. The old way curved to the right, as one traveled north, as it passed the Greco lots, the curve being away from the Nicholas, Fayette and Greenbrier railroad right of way. The proposed change would have located the public way westerly from the Greco lots, adjacent to and parallel with the railroad right of way, eliminating the curve in the public way. The change, if made, would leave an area, part of the 0.79 of an acre conveyed to Barnetts, between the westerly line of the old public way and the easterly line of the new public way. Extension of the northerly line of lot 14 and the southerly line of lot 11 of the Greco property to the railroad right of way would include approximately one half of the 0.79 of an acre. That area, though included within the description contained in the pleadings in the eminent domain proceeding, was not included in the description of the proposed new way at the time of the execution of the Greco deeds.

Subsequent to the entry of the final order in the eminent domain proceeding, the state road commissioner improved the public way by grading and paving a portion of the newly acquired way along and next to the railroad right of way, thus leaving a part of the 0.79 of an acre and the old public road right of way, between the front lines of the Greco lots and the publicly traveled portion of U. S. Route No. 60. No order of abandonment of the old public way was entered by the state road commissioner, but the former right of way engineer of the state road commission for Greenbrier County, who had charge of the re-location, and who testified on behalf of appellants, testified to the effect that the old way was retained 'To provide access for abutting properties on the old right-of-way and to be used as storage facilities or material equipment for the State Road Commission'. Subsequently, the old public way, at each point of its intersection with the new public traveled way, was improved in such manner as to afford access to the new public traveled way, to owners of properties abutting on old Route No. 60, including the owners of the Greco lots. Though it is disputed, apparently, part of the old public way and the part of the 0.79 of an acre here involved which is situated between the new way and the front line of the Greco lots, are sometimes used by the state road commission for storage of its equipment. The old roadway is no longer used for public travel. There can be no doubt that a part of the area included within the 0.79 of an acre is situated between the 'eastern boundary line of the new right-of-way of the said Midland Trail', as surveyed and located prior to the time of the execution of the Greco deeds, and the old public way which existed along the entire frontage of the Greco lots. The area here involved, if the old way is included, is of an average width of approximately seventy five feet.

The pertinent findings of the circuit court were that '* * * since the execution of said deeds described in the bills of complaint and before the institution of these suits, the said State Road Commission has changed the location of said Midland Trail as agreed upon before the execution of said deeds, to a point and upon the lands described in said State Road Commission Map, dated as aforesaid and filed as exhibits Nos. 1, 2, and 3, as aforesaid.

'And now the Court doth further find that there is a boundary of land lying between the lots of the plaintiffs, to-wit, lots Nos. 11, 12, 13 and 14, as described in their respective deeds and bills of complaint and the eastern boundary line of the new location of said Midland Trail, agreed upon prior to the date of the respective deeds to the plaintiffs as aforesaid, and described in the...