Hurst v. Hurst

• Decision Date: 27 February 1874
• Citation: 7 W.Va. 289
• Parties: HURST v. M. V. B. HURST.
• Court: West Virginia Supreme Court

7 W.Va. 289

HURST v. M. V. B. HURST.

Supreme Court of West Virginia.

February 27, 1874

S. H (and wife), the rightful owner, in fee simple, of a tract of land, and the father of M. V. B. H., conveyed to M. V. B. H by deed dated the 9th day of December, 1863, said tract of land, situated in Harrison county, this State. In the early part of the deed the consideration of the deed is stated to be one dollar. The land is described in the deed by metes and bounds, and as containing one hundred and ninety acres " to have and to hold the above described tract of land with its appurtenances, to the said M. V. B. H., and his heirs and assigns forever. And S. H., and wife, covenant to and with, the said M. V. B. H., his heirs and assigns, to warrant and defend, generally, the above described tract, or parcel, of land, to the said M. V. B. H., his heirs," & c. In the deed immediately after the last recited clause, are the following clauses, the one immediately following the other, viz: " (It is fairly understood that the above described tract or parcel of land is to be the said M. V. B. H.'s share of father S. H.'s estate.) And it is further understood that I, S. H., hold a life interest in the above described tract of land." --HELD:

1. That in ejectment the deed should be so construed as to arrive at the true intent of the grantor and grantee, and that in so doing the whole of the deed, and all its parts, should be considered together.

2. That, adopting the above rule, the plain legal effect of the deed, from its face was, and is, to convey to M. V. B. H. an estate in fee simple in the land to commence upon the death of S. H., and that S. H. reserved to himself an estate for and during, his life in the land.

3. That it was right and proper, in such case, for the court below to construe the deed according to its legal effect, from its face, and to instruct the jury as to what was its effect in law.

4. That parol evidence as to the acts or declarations of the parties, at the time of the execution of the deed, or afterwards, is inadmissible and incompetent in such case, as evidence to enlarge, restrict, explain or alter the intention of the parties, as expressed in the deed, or to vary the legal effect thereof, as clearly manifested by the deed itself.

5. That the deed is not so ambiguous as to admit of the introduction of such parol evidence for the purpose of determining the true intent and meaning of the parties, by the language employed in the deed; or to show that it was the purpose and intent of the parties at the execution of the deed, that the deed should pass to M. V. B. H. an estate in fee simple, to take effect at the execution and delivery thereof, and not an estate in fee simple, to take effect at the death of S. H.

This was an appeal by Martin Van Buren Hurst, from a judgment on the verdict of the circuit court of Harrison county, rendered on the 30th day of May, 1870, in an action of ejectment then pending in said court, between Shadrach Hurst, plaintiff, and said Martin Van Buren Hurst, defendant.

The case was brought here for the construction, by this Court, of two clauses in the deed from the appellee to the appellant. The questions were raised in the court below by several instructions, asked for by the plaintiff and defendant, respectively. So much of the deed and instructions aforesaid, as is material to be set forth here, will be found in the opinion of the court.

The Hon. Thayer Melvin, judge of the first judicial circuit, presided at the trial below.

George H. Lee and Caleb Boggess, for the appellant.

C. C. Cole, for the appellee.

HAYMOND, PRESIDENT.

This was an action in ejectment, brought in the county of Harrison. There was an office judgment had against the defendant at rules on the first Monday in May, 1869. Afterwards, at a circuit court held for said county, on the 27th day of May, 1869, the cause came regularly on the docket, and the plaintiff and defendant appeared in court, by their attorneys, and on motion of the defendant the office judgment, had in the cause, at rules, was set aside, and the defendant, for plea, pleaded that he was not guilty in manner and form as the plaintiff in his declaration has complained; and of this he put himself upon the country, and the plaintiff did likewise. The cause was regularly continued until a circuit court held for said county, on the 28th day of May, 1870, at which the parties both appeared in court, by their attorneys, and there was a trial by jury regularly had, and the jury, by their verdict, found for the plaintiff, the land in the declaration mentioned and described, and that the plaintiff hath an estate therein for and during, his natural life, and assessed the plaintiff's damages at one cent. Upon this verdict the circuit court, during the same term, rendered judgment in favor of the plaintiff, and against the defendant, for an estate, during his life, in the land in the declaration mentioned, describing the metes and bounds of the land, as they are described in the declaration, and for the damage, and also plaintiff's costs of suit. During the trial of the cause the defendant took two bills of exceptions to the rulings of the court, which bills are numbered numbers one and two. By bill of exception number one, it appears that on the trial of the cause, after the plaintiff had given in evidence to the jury a deed in these words, viz:

" This deed made this 9th day of December, 1863, between Shadrach Hurst and Catharine, his wife, of the county of Harrison and State of West Virginia, of the one part, and Martin Van Buren Hurst, of the same county and State of the other part, witnesseth:

That the said Shadrach Hurst and Catharine his wife, for and in consideration of the sum of one dollar, have granted, bargained and sold unto the said Martin V. B. Hurst, his heirs and assigns forever, a certain piece or parcel of land, lying in said county of Harrison on Owen Davis' Fork of Limestone creek, and bounded," & c. (the boundaries the same as contained in the declaration) " to have and to hold the above described tract or parcel of land, with its appurtenances, to the said Martin V. B. Hurst, and his heirs and assigns forever. And the said Shadrach Hurst, and Catharine, his wife, covenants to and with the said Martin V. B. Hurst, his heirs and assigns, to warrant and defend, generally, the above described tract or parcel of land to the said Martin V. B. Hurst, his heirs, & c., against all persons or claims, whatever. (It is fairly understool that the above described tract or parcel of land is to be said Martin V. B. Hurst's share of his father Shadrach Hurst's estate.) And it is further understood that I, Shadrach Hurst, hold a life interest in the above described tract of land. As witness the following signatures and seals, this 9th day of December, 1863."

This deed was signed, sealed and acknowledged by Shadrach Hurst and wife on the day of its date, and duly admitted to record in the Recorder's office of said county, on the 30th day of January, 1864. And also, after the plaintiff had given to the jury evidence tending to prove, that after the date of the said deed, the plaintiff continued in the possession of the land therein mentioned, claiming the same as his property, until the first day of January, 1867, and with the consent and approval of the defendant occupied the land and claimed the same as his own, during his life, and still claims the same. And after the defendant had admitted in court that he did not claim the land as tenant of the plaintiff, but that he claimed the same adverse to him, and in fee simple, the said defendant gave evidence to the jury tending to prove the following facts, viz: That at the time of the execution of the said deed, the plaintiff delivered the possession of the land therein mentioned to the defendant, who then took possession thereof and continued to hold the same ever since, claiming the title thereto; that afterwards, on the 1st day of January, 1864, the plaintiff sold and delivered to the defendant all his personal property, including his stock on said land, which was a part of his home farm, at a price to be paid to his heirs as he should provide by will; that from the date of the deed the defendant occupied, cultivated and improved the premises, and has continued to do so ever since; that in part consideration of the conveyance of the land by the plaintiff to the defendant at the date of the deed aforesaid, it was agreed by the parties that the defendant should maintain and support the plaintiff and his wife during their lives; that the defendant did support them afterwards until the first of January, 1867; that up to this time they lived together on the premises, and that the plaintiff then left the defendant and took up his abode elsewhere; that about the time of executing the deed, and afterwards the plaintiff repeatedly disclaimed any ownership of said land, or any property whatever, and claimed to be only entitled to maintenance and support out of said land; that in the year 1864, the plaintiff directed the personal property, and said land to be charged on the commissioner's books of the revenue, for taxation, to the defendant; that said property was so charged from 1865 to 1869, both inclusive and taxes thereon paid by the defendant; that in the winter of 1864 and 1865, the plaintiff, when applied to for a lease of part of...