Jones v. C. & O. E. R. Co.

• Decision Date: 21 December 1878
• Citation: 14 W.Va. 514
• Court: West Virginia Supreme Court
• Parties: Jones et al v. C. & O. E. R. Co.

14 W.Va. 514

Jones et al

v.C. & O. E. R. Co.

Supreme Court of Appeals of West Virginia.

Decided December 21, 1878.

1. Whether a condition contained in a deed is a condition prece!l dent or subsequent, is a question of intention in the grantor, to be gathered from the whole instrument.

2. But whether the condition be precedent or subsequent, it the act of the party who imposed the condition makes its performance impossible, or unnecessary, the condition is no longer binding, and the estate conveyed by the deed, in which it is contained, is discharged therefrom.

3. A general verdict for the defendant in an action of ejectment, if warranted by the evidence, is proper; and no disclaimer is necessary to its validity, although much more land was described in the declaration, than the defendant had in possession at the commencement of the action.

Writ of error and supersedeas to a judgment of the circuit court of Kanawha county, rendered on the 10th day of June, 1876, in an action in ejectment in said court then pending, wherein William A. Jones and others were plaintiffs, and the Chesapeake and Ohio Railroad Company was defendant, awarded on the petition of said plaintiff.

Hon. Jos. Smith, judge of the seventh judicial circuit, rendered the judgment appealed from.

Johnson, Judge, furnishes the following statement of the case:

In October, 1874, the plaintiff brought an action in ejectment against the defendant, claiming in fee a tract (of fifty acres of land. The defendant was in posessssion of a small strip of said land under a right., of way, as it claimed, purchased of J. W. Huffard, one of the vendors of the plaintiff. The defendant appeared and pleaded "not guilty;"and a general order of survey was made in the case, which was executed, and appears in the record.

At a subsequent term, on the 3d day of July, 1876, the case was submitted to a jury, which returned a general verdict for the defendant. A motion was made for a new trial; and the defendant, by its attorney, thereupon "disclaimed all right or title to any portion of the premises described in the plaintiff's declaration, except the strip of land, &c," the said strip was the land occupied by the road for its road-bed, &c. and the court overruled the plaintiff's motion for a new trial, and rendered judgment against the plaintiffs for costs.

The plaintiffs took a bill of exceptions containing all the evidence and facts proved at the trial, by which it appeared, that the plaintiffs offered in evidence a deed to the fifty acres of land described in the declaration, executed on the 25th day of April, 1871, by J. W. Huffard and wife to the plaintiff W. A. Jones.^Said deed was acknowledged on the 26th day of the same month, and on the 2Sth day of that month was admitted to record; also a deed of trust from said W. A. Jones and wife to E. B. Knight, trustee for the same land, to secure a certain debt therein mentioned, executed on the 26th day of April, 1871, and shortly after admitted to record; also a deed to Peter Fontaine, trustee, for the same land, to secure certain debts therein mentioned, executed by said Jones and wife on the 10th day of October, 1873, and acknowledged by said Jones, and admitted to record on the 15th day of October, 1873; also a partition deed between the heirs of Samuel Hudson executed in April. 1867, by which the said fifty acres were conveyed to Mary W. Hudson, now the wife of J. W. Huffard; also the reports and plats of the survevor made in the case.

The plaintiff also proved, that Mary Huffard was the wite of J. W. Huffard, and the daughter of Samuel Hudson; that the said tract of fifty acres was a part of the tract of land, on which said Hudson lived from 1838 to the date of his death in 1867; that in the devise of his estate the said fifty acres fell to, and'was allotted'to, said Mary, who married J. W. Huffard in the fall of the year 1867, and that children were born to them during said marriage, and that the oldest of said children was seven years of age.

The plaintiffs also proved, that the defendant was at and prior to the institution of this suit in possession of a part of said tract of fifty acres, designated by certain letters on the plat of the surveyor.

The plaintiffs also proved, "that William Thompson of Kentucky in 1869 boarded with James W. Huffard, and then had a contract for the purchase of the said fifty acres of land from Huffard, but that it fell through, and that said Huffard resided on said fifty acres in 1869 and prior thereto, and up to the time that he sold to Jones, when Jones moved on said tract.

The plaintiff also proved, that the fifty acres of hind, assigned to Mary Hudson, was the same land conveyed by Huffard and wife to W. A. Jones, and subsequently by Jones to Knight, as trustee, and to Fontaine, as trustee.

The defendant gave in evidence a deed from J. W. Huffard to the Chesapeake and Ohio Railroad Co., dated October 14, 1869, acknowledged on the same day, and admitted to record on the 5th of April, 1870. This deed conveyed to the defendant the right of way through said fifty acres, and contains the following clause: "It is understood, that inasmuch as the party of the second part has contracted to sell his land aforesaid to William Thompson of Kentucky, the right of way to build the said railway must first be procured from the said Thompson, otherwise this deed is to be void;" also the further clause: "it is understood that the said railway is to be built on the line lately surveyed by D. L. Ruffner."

It was proved by the defendant, that its railway through the said fifty acres of land was constructed on the line" surveyed by said Ruffner; that $3,000.00 had been ex-c pended by said company in constructing its railroad through said fifty acres, which part is separated from the residue by a fence built by defendant; that the grading of said road through said fifty acres was commenced in May, 1870, and the laying of the track through the same was completed in June, 187i; and that the trains of cars of defendant commenced running through said tract of fifty acres in July, 1871, and have continued running through said land ever since. The defendant also proved, that James W. Huffard and Mary his wife were still in life.

And these, says the bill of exceptions, were all the material facts proved in the case. Whereupon the counsel for defendant moved the court to instruct the jury as follows:

" 1st. The court instructs the jury, that if James W. Huffard married Mary W. Hudson in the year 1867, and if at that time the said Mary W. Hudson was seized of an estate in fee in the lands in controversy, then by virtue of such marriage the said Huffard at the time theieof became vested with an estate for the joint lives of said Mary and himself in the said lands, which estate was not divested or impaired by virtue at any subsequent legislation. And if there was issue by such marriage, then the estate of the said James W. Huffard in said land would become enlarged to an estate for the life of the said James W. Huffard.

"2d. The deed from James W. Huffard to the defendant in this action contains after the grant the following: It is understood, that inasmuch as the party of the second part has contracted to sell his land aforesaid ro William Thompson, of Kentucky, the right of way to build the said railway, must first be procured from the said Thompson, otherwise this deed is to be void.

" Respecting this provision of the said deed the court instructs the jury, that if they believe from the evidence, that the contract therein referred to, between James W. Huffard and William Thompson, has been consummated, then such provision constitutes a subsisting and binding part of said deed; but if on the other hand they believe from the evidence that the said contract has tailed and been abandoned by the parties thereto, and that by the act of the said Huffard the said Thompson has no longer any interest in said lands, then such provision can have no force whatever.

"3d. That it is not necessary to the validity of the deed from Huffard to the Chesapeake & Ohio Railroad Company, that said deed should be signed by the company. That the deed is well executed, if the same is signed and sealed by the said Huffard, and by him delivered to the said.company.

" 4th. That if the defendant had only received a conveyance of the right of a way over the land in controversy from James W. Huffard, and the said Huffard was only seized of a life-estate in said land by virtue of his marriage, then the title of the' defendant ceases at the termination of said life-estate. And the statute of limitations will not commence to run in favor of the defendant until after the said lite-estate terminates."

To the giving of which instructions and each of them the plaintiffs objected, and moved the court to give the following instructions:

" 1st. If the jury believe from the evidence, that J. W. Huffard entered into a contract with defendant on the 14th October, 1869, in these words, to-wit: (This contract, or deed, will be found on page 28 of this record), and that said Huffard had intermarried with Mary W. Hudson, his then wife, who had inherited this land from her father, Samuel Hudson; and that afterwards, J. W. Huffard and wife on the 25th April, 1871, conveyed all this land by deed to William A. Jones; and that the condition named and set out in the contract of the 14th October, 1869, was never complied with, and the right of way to build said railway on said land was never procur-g ed from said Thompson, then the plaintiffs are entitled to recover in this action. c.

"2d. If the jury believe from the evidence, that the defendant failed to get from William N. Thompson a right of way through the land in controversy under their contract with Huffard before said Huffard and wife conveyed said land to Jones, then the plaintiffs have the right to recover in this action.

"3d. If the jury believe from the evidence, that the contract of sale made by...