Hall v. Hartley

Citation119 S.E.2d 759,146 W.Va. 328
Decision Date16 May 1961
Docket NumberNo. 12072,12072
PartiesJames H. HALL v. Hunter A. HARTLEY.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. The failure of a defendant to appear in a declaratory judgment proceeding may constitute an admission on the part of the defendant of all material facts pleaded, but the court must, nevertheless, proceed to construe such facts or instrument set out therein and enter judgment thereon, in order to comply with the meaning and purpose of the Act. It does not entitle the petitioner to a judgment based on his construction of the law applicable to such facts.

2. In order to create an exception or reservation in a deed which would reduce a grant in a conveyance clause which is clear, correct and conventional, such exception or reservation must be expressed in certain and definite language.

3. 'Where there is ambiguity in a deed, or where it admits of two constructions, that one will be adopted which is most favorable to the grantee.' Pt. 6, syllabus, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187 .

4. 'If, in a deed, there be two clauses so totally repugnant to each other, that they cannot stand together, effect will be given to the first, and the latter rejected.' Pt. 7, syllabus, Paxton v. Benedum-Trees Oil Co., 80 W.Va. 187 .

5. 'In construing a deed, will or other written instrument, it is the duty of the court to construe it as a whole, taking and considering all the parts together, and giving effect to the intention of the parties wherever that is reasonably clear and free from doubt, unless to do so will violate some principle of law inconsistent therewith.' Pt. 1, syllabus, Maddy v. Maddy, 87 W.Va. 581 .

John R. Haller, Weston, for appellant.

No appearance for appellee.

BERRY, Judge.

This is a proceeding for a declaratory judgment under the provisions of the Uniform Declaratory Judgment Act, Chapter 55, Article 13, of the official Code of West Virginia, as amended, to construe a deed dated March 20, 1956, from John W. Dorsey, grantor, to James H. Hall, grantee, the petitioner herein, wherein the petitioner claims the entire estate owned by the grantor, J. W. Dorsey, at the time of the execution and delivery of said deed. A notice of the proceeding was served upon the defendant, Hunter A. Hartley, in person, in Greenville, Pennsylvania. The defendant, Hartley, is the residuary devise under the last will and testament of John W. Dorsey, and by virtue thereof, claims any interest that may have been retained by the said J. W. Dorsey in the property conveyed by the said deed of March 20, 1956. There was no appearance in person or in behalf of the defendant in this proceeding.

The Circuit Court of Lewis County, in which this proceeding was instituted, overruled the petitioner's motion for a default judgment, and after hearing proof in support of the allegations in the petition, rendered its judgment on April 7, 1960, holding that the petitioner acquired only 1/8th of the oil and gas under the said three tracts of land by the deed in question dated March 20, 1956, contrary to the contention and prayer of the petitioner. Upon petition to this Court, an appeal and supersedeas was granted September 12, 1960.

The deed in question in the granting clause granted and conveyed with covenants of general warranty unto the petitioner, subject to the exceptions and reservations contained in the deed, three tracts or parcels of land in Freeman's Creek District in Lewis County, West Virginia. The first tract consisted of approximately 100 acres, the second tract approximately 53 1/2 acres and the third tract about 51.42 acres. The conveyance was made subject to all exceptions, reservations, provisions and stipulations contained in the grantor's chain of title, and the last paragraph of said deed contained the following language: 'And, in consideration of the premises, the party of the first part doth hereby assign and transfer unto the said party of the second part an undivided one-eighth (1/8th) interest in and to the oil and gas in, on and under the above mentioned and described three tracts or parcels of land, and doth further assign and transfer unto the party of the second part, and his assigns, all of his right, title and interest to the use of free gas for the dwelling house on the property herein conveyed.'

The grantor, J. W. Dorsey, at the time of the execution of the deed in question, owned the first 100 acre tract in fee simple, except certain coal theretofore sold, and all oil and gas, subject to a lease executed in 1899 to the South Penn Oil Company, which is still effective. He owned the second 53 1/2 acre tract in fee, except certain coal theretofore sold. He therefore owned all the oil and gas under said tract, and it was not subject to any lease. He owned 7/8ths of the 51.42 acre tract in fee, except certain coal theretofore sold, and therefore owned 7/8ths of all gas under said tract, which, also, was not subject to any lease.

Under the lease to the South Penn Oil Company in 1899, the grantor, Dorsey, was to receive as part of the consideration of said lease 1/8th of all the oil produced in the 100 acre tract. By an agreement with the Hope Natural Gas Company in 1934, on account of the lease to the South Penn Oil Company in 1899 covering the oil and gas in the 100 acre tract, he received the right to the free use of 200,000 cubic feet of gas each year for a dwelling house located on said 100 acre tract. However, this right was a personal one, and could be terminated with thirty days' notice given by the Gas Company.

The difficulty in this case arises out of the apparent conflict between the granting clause and the last paragraph of the deed.

It is not clear what the grantor intended to grant to the grantee in this deed, because the granting clause grants a fee-simple subject to any exceptions or reservations in the deed, or in the grantor's chain of title, while the last paragraph, in consideration of the premises, attempts to 'assign and transfer' an undivided 1/8th interest in the oil and gas in the three tracts of land.

The errors relied on by the petitioner for reversal are: The trial court erred (1) in denying the petitioner's motion for default judgment based on his interpretation of the conveyance as set out in the petition for a declaratory judgment, and, (2) in refusing to enter judgment that the petitioner was the owner of the entire estate owned by J. W. Dorsey in the three tracts of land described in the deed of March 20, 1956.

In answering the first assignment of error, it might be well to point out that the very purpose of a proceeding under the Declaratory Judgment Act, such as is involved in the case at bar, is to have a court construe an instrument, such as the instrument involved in this case, and enter judgment upon the construction thereof, which is the law of the case. To hold otherwise would not permit any construction by the court of the instrument involved or indicated by the facts pleaded in the petition praying for a declaratory judgment. The default caused by defendant's failure to appear and answer in a declaratory judgment proeeding does not entitle plaintiff to a judgment based on the pleader's conclusions. 26 C.J.S. Declaratory Judgments § 158. See Anderson, Declaratory Judgments, § 181, in which it is stated that a right to such judgment may depend upon proof adduced at the trial. Proof was taken in the instant case by the court below before it rendered judgment.

It is generally within the discretion of the court as to whether it will take jurisdiction to enter or decline to enter a declaratory judgment, and also the manner in which it is done, but such discretion cannot be abused. 26 C.J.S. Declaratory Judgments §§ 11, 12; Griscti v. Mortgage Commission, 249 App.Div. 632, 291 N.Y.S. 257; Borchard, Declaratory Judgments, 2nd Ed., page 293 et seq.

The failure of the defendant to appear and answer in a declaratory judgment proceeding may constitute an admission on the part of the defendant of all material facts pleaded, but the court must, nevertheless, proceed to construe such facts or instruments set out therein and enter judgment thereon, in order to comply with the meaning and purpose of the Act. It does not entitle the petitioner to a judgment based on his construction of the law applicable to such facts. 26 C.J.S. Declaratory Judgments § 158; 16 Am.Jur., Declaratory Judgments, § 68; Central Oregon Irr. Dist. v. Deschutes County et al. 168 Or. 493, 124 P.2d 518; Hurley v. Hurley, 298 Ky. 178, 182 S.W.2d 652; Prudential Ins. Co. of America v. Rader, D.C., 98 F.Supp. 44.

The second assignment of error is merely a request for this Court to reverse the judgment of the trial court, based on its construction of the meaning of the contents of the deed in question.

There is an uncertainty as to the meaning of just what was conveyed by the deed in question. If the granting clause conveys a fee simple, and it does under the laws of this state unless a contrary intention appears in the conveyance, Code, 36-1-11, and the last paragraph conveys only 1/8th of the oil and gas under the three tracts, the two clauses are repugnant and irreconcilable.

It is true that where there is an inconsistency in the granting and habendum clauses in a deed, they must be read together in connection with all other provisions in the deed, and harmonized, in...

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    ...law inconsistent therewith.' Pt. 1, syllabus, Maddy v. Maddy, 87 W.Va. 581[,105 S.E. 803 (1921)]." Syllabus point 5, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961). 6. "For ascertainment of the intent of the parties to a deed, in which the description of the subject matter is inconsi......
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