Holley's Ex'r v. Curry

• Decision Date: 27 May 1905
• Parties: HOLLEY'S EX'R. v. CURRY et al.
• Court: West Virginia Supreme Court

58 W.Va. 70

51 S.E. 135

HOLLEY'S EX'R.

v.CURRY et al.

Supreme Court of Appeals of West Virginia.

May 27, 1905.

1. Equitable Mortgage — What Constitutes.

A writing which is in all respects sufficient as a deed of trust securing a debt, except that it is not under the seal of the party purporting to be the grantor therein, is held to be an equitable mortgage.

[Ed. Note.—For cases in point, see vol. 35. Cent Dig. Mortgages, §§ 57, 58.]

2. Same—Description op Property.

It is essential to the validity of a grant that the thing granted should be so described as to be capable of being distinguished from other things of the same kind. But it is not necessary that the grant itself should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely what is conveyed. Blake et al. v. Doherty et al., 5 Wheat. 359, 5 L. Ed. 109.

3. Same—Sufficiency.

A writing constituting an equitable mortgage describes the real estate sought to be charged thereby as follows: "Seventy-two acres of land situate near Hamlin, the same bought of the Land Company. Also twelve and one-half acres of land also situate near Hamlin & the same conveyed to said B. F. Curry by James T. Carroll, Jr. Also 3 acres situate near Hamlin and known as the old church lot. Also my store house and lot and livery stable and lot in Hamlin." Such writing is not void on its face for uncertainty in the description of the real estate sought to be charged thereby.

4. Limitations—New Promise.

The following clause contained in a writing, "to secure to D. S. Holley, as executor of the last will and testament of James A. Holley, dec'd, the payment of whatever amount said B. F. Curry may owe him as such executor on a settlement, " is not sufficient to constitute a new promise, removing the bar of the statute of limitations.

5. Same—Construction.

Such clause contained in a writing, constituting an equitable mortgage, made by a party, is a sufficient description of a debt to secure the amount such party may owe on a settlement to be made, in which settlement there can be included against him only those items not barred by the statute of limitations at the time of the making and delivery of such writing.

(Syllabus by the Court.)

Appeal from Circuit Court, Lincoln County.

Bill by E. W. Holley's executor against B. F. Curry and others. Decree for defendants, and plaintiff appeals. Reversed.

C. W. Campbell, Geo. R. Heffley, C. E. Burns, and J. E. Chilton, for appellant.

D. E. Wilkinson, for appellees.

COX, J. This is an appeal from a decree of the circuit court of Lincoln county in a suit in chancery brought on the 9th day of August, 1893, by E. W. Holley, surviving executor of James A. Holley, deceased, against B. F. Curry and others, to enforce the lien of a writing purporting to be a deed of trust bearing date the 2d day of September, 1882, executed and acknowledged by B. F. Curry to J. E. Chilton, trustee, against certain real estate which plaintiff claimed was charged by said writing for the purpose of securing a debt to plaintiff as executor. Such proceedings were had that, upon final hearing, plaintiff's bill was dismissed, and of this plaintiff complains.

Numerous defenses were interposed by the defendants by demurrers, answers, and otherwise. It is claimed by the defense that the writing aforesaid is a mere nullity, and that it cannot be enforced as a lien, for the following reasons: First, because it was not under seal; second, because of uncertainty in the description of the real estate sought to be charged thereby; third, because of uncertainty in the description of the debt sought to be secured thereby to James A. Holley's executor.

The writing purports to be a deed of trust. It was executed, acknowledged, and recorded as such, but no seal or scroll was affixed to the signature of B. F. Curry thereto. It is not a deed. Atkinson v. Miller, 34 W. Va. 115, 11 S. E. 1007, 9 L. R. A. 544; Dickinson v. Railroads 7 W. Va. 390. Although not a deed, if otherwise free from objection, it is, in substance, a contract for a lien, and, as such, an equitable mortgage. Atkinson v Miller, supra; Wayt v. Carwithen. 21 W. Va. 516; Knott v. Mfg. Co., 30 W. Va. 790, 5 S. E. 266.

In determining matters of description of the real estate sought to be charged and of the debt sought to be secured by said writing, the same principles apply which would apply if the writing were a deed instead of an equitable mortgage. The writing in question describes the real estate sought to be charged as follows: "Seventy-two acres of land situate near Hamlin, the same bought of the Land Company. Also twelve and one-half acres of land also situate near Hamlin & the same conveyed to said B. F. Curry by James T. Carroll, Jr. Also 3 acres situate near Hamlin and known as the old church lot. Also my store bouse and lot and livery stable and lot in Hamlin." There are many decisions by this court on the subject of description of real estate in deeds and other writings. Among them are Warren v. Syme, 7 W. Va. 474; Thorn v. Phares, 35 W. Va. 771, 14 S. E. 399; Simpkins v. White, 43 W. Va. 125, 27 S. E. 361; Mathews v. Jarrett, 20 W. Va. 415; Westfall v. Cottrills, 24 W. Va. 763. The decisions of other states on the question of description are almost innumerable, and not always consistent. It may be laid down generally that great liberality is allowed in the matter of description. In description, that is certain which can be made certain. A deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. The office of description in a deed or other writing is not to identify the land, but to furnish means of identification. Simpkins v. White, supra; Blake v. Doherty, 5 Wheat. (U. S.) 359, 5 L. Ed. 109; Cox v. Hart, 145 U. S. 376, 12 Sup. Ct. 962, 36 L. Ed. 741; 2 Devlin on Deeds (2d Ed.) § 1012, note 1; Jones, Real Prop. § 323; Brewster on Conveyancing, § 75. In the ease of Blake v. Doherty, supra (the opinion being delivered by Chief Justice Marshall), it is held: "It is essential to the validity of a grant that the thing granted should be so described as to be capable of being distinguished from other things of the same kind. But it is not necessary that the grant itself should contain such a description as, without the aid of extrinsic testimony, to ascertain precisely what is conveyed." Usually general descriptions, such as "all the estate both real and personal of the grantor, " "all my land" in a certain town, county, or state, "all my land wherever situated, " "all my right, title and interest in and to my father's estate at law, " and the like, are held good. Brewster on Conveyancing, § 81; Petti grew v. Bobbelaar, 63 Cal. 396; Frey v. Clifford, 44 Cal. 335; Austin v. Dolbee, 101 Mich. 292, 59 N. W. 608; Huron Land Company v. Robarge, 128 Mich. 686, 87 N. W. 1032; Warren v. Syme, supra. Descriptions omitting town, county, or state where the property is situated have been held sufficient, where the deed or writing provides other means of identification. Hawkins v. Hudson, 45 Ala. 482; Webb v. Mullins, 78 Ala. 111; Garden City Sand Co. v. Miller, 157 111. 225, 41 N. E. 753; Lloyd v. Bunce, 41 Iowa, CGO; Mee v. Benedict, 98 Mich. 260, 57 N. W. 175, 22 L. R. A. 641, 39 Am. St. Rep. 543; Norfleet V. Russell, 64 Mo. 176; 13 Cyc. 549; McCullough v. Olds, 108 Cal. 529, 41 Pac. 420. Many other cases might be added. "If the land is situated in a city, and the land is described as being in a certain city, although the name of the state or county may not be given, the court, in an action of ejectment in which the deed is offered in evidence, will take notice that such city is in a certain county in the state." 2 Devlin on Deeds (2d Ed.) § 1011; Harding v. Strong, 42 Ill. 148, 89 Am. Dec. 415.

Under the authorities, the writing in question is not, on its face, void for want of certainty in description of the real estate sought to be charged thereby. This writing does not state in what county or state the real estate is situated. It was acknowledged and recorded in Lincoln county, in this state. The number of acres in some of the tracts is given. Three of the tracts are described as near Hamlin; the fourth, as in Hamlin. The first tract is described as the same bought of the land company, the second, as conveyed to Curry by James T. Carroll, Jr. Hamlin is the county seat of Lincoln county, in this state, and of this fact the court will take judicial notice. People v. Faust (Cal.) 45 Pac. 261. These things afford some, and we think sufficient, means of identification.

The papers copied in the record, marked, "B. P. Curry's Title Papers, " cannot be considered, as they appear to have been copied in the record without authority.

This cause was twice referred to commissioners—the last time to Commissioner Jimison, who, in response to the requirement that he report "the number of acres and value of the lands named in said deed of trust, its location and what title, if any, Curry has to the same, " reported certain lands included under the description in said writing. We cannot disturb this finding.

The writing in question describes the debt sought to be secured thereby in the following language: "And to secure to D. S. Holley as executor of the last will and testament of James A. Holley, dec'd, the payment of whatever amount said B. F. Curry may owe him as such executor on a settlement." An indulgence of 12 months was provided for by this writing. Is this description sufficient to secure any debt to Holley, executor? A deed of trust or other writing charging real estate to secure a debt must in some way describe and identify the debt...