Lane v. Board of Ed. of Lincoln County, 12197

CourtSupreme Court of West Virginia
Citation147 W.Va. 737,131 S.E.2d 165
Decision Date04 June 1963
Docket NumberNo. 12197,12197
PartiesMarshallene LANE et al. v. The BOARD OF EDUCATION OF LINCOLN COUNTY, West Virginia, et al.

Syllabus by the Court

1. When the words of a statute are not ambiguous, but have definite meaning, the court will not extend its provisions to include persons clearly excluded by its language.

2. The word 'heirs' is a legal term having a definite meaning and expresses the person or persons appointed by law to succeed to the real estate of a deceased person in case of intestacy, and it will ordinarily be given this primary or technical meaning when used in an instrument creating an estate or designating the person for whom an interest in an estate is intended.

3. In the construction of written instruments technical words are presumed to have been used in a technical sense and should ordinarily be given their strict meaning.

4. The omission from a statute of all persons except the grantor or his heirs with respect to a right of reconveyance of a school house site previously conveyed by such grantor to a board of education necessarily excludes all persons having a different status; and such omission indicates the plain legislative purpose to restrict the right to a reconveyance to the grantor or his heirs and not to confer it upon any person occupying another or different status.

5. Persons who do not claim as, and are not shown to be, the heirs of the grantors in a deed for a school house site, of which they seek a reconveyance from a board of education, but who claim such right as the heirs of a son of one of the grantors in such deed are not within the applicable statute which provides a right of reconveyance for the grantor or his heirs and under such statute they have no right to demand and obtain from a board of education a reconveyance of such school house site.

Carl M. Duttine, Dunbar, H. D. Rollins, Charleston, for appellants.

Woodall & Griffith, Hamlin, for appellees.

HAYMOND, Judge.

This is a civil action, instituted in the Circuit Court of Lincoln County in June 1961, in which the plaintiffs, Marshallene Lane, Gladys Johnson, Faye Conner, Mary Jane Gerhart, Thomas Dugan, Linda Tincher, Jack Dugan and James Dugan, seek a reconveyance to them by the defendant, The Board of Education of Lincoln County, West Virginia, of a small parcel of land conveyed by Victoria A. Burdette and S. P. Burdette, her husband, to the Board of Education of Washington District of Lincoln County, by deed dated August 11, 1894, and the cancellation of a deed made by the defendant, The Board of Education of Lincoln County, to the defendant M. J. Banks, dated November 6, 1958, and a deed made by him to the defendants, Roy Williams and Alice Williams, dated October 23, 1959, for that parcel of land.

The case was heard upon the amended complaint of the plaintiffs, the separate answers of the defendants, and the facts set forth in written stipulations of the attorneys for the respective parties. By final judgment rendered July 24, 1962, the circuit court dismissed the complaint and the amended complaint of the plaintiffs, denied them the relief for which they prayed, and entered judgment in favor of the defendants and awarded them their costs against the plaintiffs. From that judgment this Court granted this appeal upon the application of the plaintiffs on November 26, 1962.

By deed dated August 11, 1894, Victoria A. Burdette, the owner of a tract of land of forty acres in Washington District, Lincoln County, West Virginia, and S. P. Burdette, her husband, conveyed a parcel containing three-fourths of an acre, more or less, and being a part of the forty acre tract, for the consideration of twenty five dollars to the Board of Education of Washington District of Lincoln County for school purposes. The grantee in that deed erected a school house upon the lot and it and its successor, the defendant The Board of Education of Lincoln County, continued to possess and use the land for school purposes until sometime during the year 1957 when the defendant Lincoln County Board of Education discontinued the use of the land for school purposes and advertised the property for sale at public auction. At the sale the defendant M. J. Banks became the purchaser of the lot and the defendant Lincoln County Board of Education conveyed it to him by deed dated November 6, 1958. Later the defendant Banks conveyed the same lot to the defendants Roy Williams and Gladys Williams by deed dated October 23, 1959.

By deed dated September 29, 1900, Victoria A. Burdette and S. P. Burdette, her husband, conveyed the tract of forty acres of land to her son Marshall Bowman. This deed contained no reservation or exception of the tract of three-fourths of an acre which had previously been conveyed to the Board of Education of Washington District, and the plaintiffs contend that it conveyed to the grantee Marshall Bowman the right of the grantors to a reconveyance of the land conveyed to the board of education.

In 1941, Marshall Bowman, a resident of Lincoln County, died intestate and at the time of his death he was the owner of the forty acre tract of land conveyed to him by the deed of September 29, 1900, except, of course, the three-fourths of an acre which had been conveyed by Victoria A. Burdette and her husband to the Board of Education of Washington District, Lincoln County, by the prior deed of August 11, 1894. Marshall Bowman was survived by four daughters, Marshallene Lane, Gladys Johnson, Faye Conner and Mae Dugan, and these four daughters were his heirs at law. Mae Dugan subsequently died intestate and was survived by her five children and heirs at law, Mary Jane Gerhart, Thomas Dugan, Linda Tincher, Jack Dugan and James Dugan. These persons as the heirs of Marshall Bowman and the heirs of Mae Dugan are the present owners of the forty acre tract of land.

Though the complaint and the amended complaint state that the tract of forty acres of land 'was conveyed to Marshall Bowman by his mother, Victoria A. Burdette, formerly Victoria A. Bowman, by deed dated September 29, 1900,' there is no allegation in the complaint or the amended complaint that the plaintiffs are heirs of Victoria A. Burdette or S. P. Burdette, her husband, the grantors in the deed of August 11, 1894, to the Board of Education of Washington District for the parcel of three-fourths of an acre of land; and the brief in behalf of the plaintiffs asserts that the plaintiffs are the sole heirs at law of Marshall Bowman and as such succeed to such rights in his real estate as he had at the time of his death. If Marshall Bowman survived his mother, Victoria A. Burdette, he would be an heir of Victoria A. Burdette and in that situation his surviving children would be his heirs but they would not be heirs of his mother, Victoria A. Burdette.

At the date of the deed of August 11, 1894, by Victoria A. Burdette and S. P. Burdette, her husband, to the Board of Education of Washington District, for the school house lot, Section 33, Chapter 15 Acts of the Legislature, 1881, Regular Session, was in effect. That statute, which the plaintiffs contend applies to and controls the rights of the parties to this action, contained these provisions: 'The president of the board of education of every district shall, at least once a year, examine the school houses and school house sites in the district, and report and condition of the same to the board; and such as are, in their judgment, properly located and are sufficient, or can with reasonable expense be rendered so, shall be retained for the use of public schools, and the remainder, with the consent of the county superintendent, shall be sold at public auction or otherwise, by the board of education, and on such terms of sale as the board may order, and the proceeds added to the building fund; Provided, That the grantor or his heirs of any such school house site shall, if he or they so desire, have the same reconveyed to him or them, without the buildings thereon (if any), upon paying to the board of education the amount received by such grantor for such site; or in case no compensation was paid therefor, the same shall be so reconveyed free of charge. In case of such reconveyance, the building on such site (if any), shall be sold, as hereinafter provided, with privilege to the purchaser to remove it from off such site in a reasonable time. This proviso shall not be construed to apply to any school house lot within any village, town or city.' This statute remained in effect until it was amended by Section 33, Chapter 70, Acts of the Legislature, 1905, Regular Session. The statute as amended by the Act of 1905 omitted any right to the grantor or his heirs to any reconveyance and such right is not preserved by any subsequent amendment to the statute.

The statute was again amended by Section 48, Chapter 2, Acts of the Legislature, 1919, Regular Session. That statute contained the provisions, among others, that all buildings, other than such buildings as in the judgment of the board were properly located and were suitable or could with reasonable expense be rendered suitable for school purposes, together with lands in connection with such buildings, should, with the consent of the county superintendent of schools, 'be sold at public auction to the highest responsible bidder, by the board of education, on proper legal notice and on such terms of sale as the board may order, and the proceeds of such shall be placed to the credit of the building fund of the district; provided, that in rural districts the grantor of such land, his heirs or assigns, shall have the right, at such sale, to purchase said land, exclusive of mineral rights, and buildings thereon, at the same price for which it was sold, plus legal interest.' The right of the grantor, his heirs or assigns, to purchase the land previously sold by him to the...

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    • West Virginia Supreme Court
    • November 17, 2022
    ... ... PAUL HARDESTY, President of the West Virginia Board of Education, Respondents. No. 22-616 Supreme Court of ... from the Circuit Court of Kanawha County The Honorable Joanna ... I. Tabit, Judge Civil Action ... in Lincoln County alleged that the State's system for ... 464 S.E.2d 763, 770 (1995); see also Lane v. Bd. of Ed ... of Lincoln Cnty., 147 W.Va. 737, ... ...
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