Listing v. Rodes

• Decision Date: 18 March 1924
• Citation: 96 W.Va. 38
• Parties: Charles Listing v. Frank S. Rodes, et al.
• Court: West Virginia Supreme Court

96 W.Va. 38

Charles Listing

v.Frank S. Rodes, et al.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 1924.

Decided March 18, 1924.

Covenants. Word "Warrants" in Deed Operates as General Warranty of Title.

Where a conveyance is made whereby the grantor "Conveys and Warrants" a tract of land to the grantee, the word "Warrants" is not a word of conveyance of, but assurance, of title, and operates as a general warranty of title under section 13, chapter 72, of the Code.

Appeal from Circuit Court, Kanawha County. Action by Charles Listing against Frank S. Rodes and others. From a decree for plaintiff, defendants appeal.

Reversed and remanded.

Murray Briggs, for appellants.

Mathews, Campbell & MeClintic, for appellee.

Meredith, President:

Plaintiff Listing conveyed lot 27, block 25, and an eight foot strip off of lot 28, all in South Charleston, to defendant Frank S. Rodes, a part of the purchase price being represented by four purchase money notes aggregating approximately $2825.00. The notes were secured by a vendor's lien, as well as by a mortgage executed by both defendants, and plaintiff brings this suit to satisfy his lien. Pending adjudication of the matter, in order to secure a release of the lien, defendants executed a bond with corporate surety to secure the payment of any sum which should be decreed against them, and the final decree of the circuit court was in favor of the plaintiff against defendants and their surety for the full amount of the notes plus accrued interest. Defendants appeal.

Plaintiff's original bill, filed in December, 1921, alleged the conveyance of the property to defendant; the execution by defendants of the notes and the mortgage securing them; the failure of defendants to pay the first note or the interest thereon, though the same was long pas': due; and under the accelerative provisions of the mortgage relative to the maturity of the notes, the plaintiff prayed for a decree against defendants for the amount of the notes and for general relief. He filed as exhibits the four notes and the mortgage. At May rules, 1922, plaintiff filed an amended and supplemental bill. In it he partially deraigned the title to the property involved, extending back to a conveyance dated April 20, 1917, from George W. McClintic and wife to defendant Rodes. He adopted the allegations of the original bill, and prayed in addition that "the said mortgaged premises be sold as the court may direct to satisfy such debts and costs.'' He filed as additional exhibits: (1) Deed with special warranty, dated April 20, 1917, from George W. McClintic and wife to F. S. Rodes covering among other lots all of lot 27 and 8 feet of lot 28, being the same property conveyed to the grantor, etc.;

(2) Deed with special warranty, dated April 20, 1917, from F. S. Rodes and wife to J. J. Lovell, Jr., covering lot 27;

(3) Deed with general warranty, dated March 28, 1919, from J.J. Lovell and wife to Charles Listing, for lot 27; (4) Deed with special warranty, dated September 17, 1919, from Frank S. Rodes and wife to Charles Listing for an eight foot strip, part of lot 28; and (5) Deed, dated August 9, 1920, from Charles Listing and wife to Frank S. Rodes for lot 27 and the 8 foot strip, part of lot 28. This is the deed, the consideration for which is represented by the rotes sued on, and the nature of the warranty will be discussed hereafter.

In September, 1922, defendants answered. They first sought permission from the court to execute the bond heretofore referred to; they admitted the conveyance from plaintiff to defendant F. S. Rodes, which they averred was a general warranty deed, and accepted by defendant as such; they also admitted the execution of the notes and mortgage, but averred that while at the time the transaction was entered into they believed that plaintiff had good title to the real estate he attempted to convey, they learned a short time prior to the date

of the maturity of the first note, August 1923, that E. T. Crawford, a former owner of lots 27 and 28, was still claiming and was the true owner of so much of both lots that plaintiff did not own at the date of his conveyance to defendant more than about two-thirds of the property he purported to convey. The nature of Crawford's claim is shown by the answer and exhibits filed therewith. These exhibits are the three deeds in the chain of title immediately preceding the deed from McClintic and wife to F. S. Rodes. ' They are: (1) Deed dated May 14, 1910, from E. T. Crawford and wife for a part of lots 27 and 28 (describing the particular portion conveyed) to J. Wilcox Adams; (2) Trust deed dated September 28, 1912, from Adams and wife to V. L. Black, Trustee, of "three certain lots or parcels of land and being in the Tenth Ward in the City of Charleston, and being lots 25, 26 and 27 of Block No. 25 * * * and being the same lots conveyed" etc.; and (3) Deed dated October 9, 1916, from V. L. Black, Trustee, to George W. McClintic, in which the description of the property conveyed is in substance the same as the description in the deed from Adams to Black, Trustee.

The material point is that the deed from Crawford conveyed only a part of lots 27 and 28, and that the portion of the lots not conveyed has apparently never been disposed of by Crawford. As is already made evident by our reference to the deed from plaintiff to defendant, that conveyance describes the subject of the grant as lot 27 and a strip 8 feet wide of lot 28. It is conceded that in view of Crawford's claim plaintiff did not own all of the property he purported to convey.

The gravamen of defendant's answer so far as the present issue is concerned is that since plaintiff's title was imperfect he could not lawfully collect the residue of the purchase money until he procured for Rodes Crawford's interest in the land; or in default thereof should abate the purchase price to the extent of the value of the portion of the land not conveyed. Defendants allege that plaintiff had not attempted to procure Crawfords title, nor had he offered to abate the purchase price, but that he insisted on full payment. They pray that the purchase price be properly abated and for general relief.

Other pleadings were filed in the proceedings, but they do not materially affect the real question which counsel present for determination. That question is whether or not under the deed from plaintiff to defendant F. 8. Rodes, defendants are entitled to an abatement of the purchase price because of the defect in the title. That abatement defendants claim should, amount to at least $960.00. Plaintiff is obdurate in his refusal to agree to any abatement. Defendants insist upon it. The inquiry which would naturally arise and which does arise and which forms the real bone cf contention in this matter is whether or not under the terms of his conveyance plaintiff assumed responsibility for the defect in the title which he purported to convey. As it is firmly established that in the absence of a warranty a grant of real estate does not imply an assertion of title in the grantor, Mining & Mfg. Co. v. Coal Co., 8 W. Va. 406, the case resolves itself into the one question whether or not the grantor warranted the title to the property he purported to convey.

Plaintiff contends there was no warranty, that he bears no responsibility for the defect in the title and that he is entitled to a decree for the full amount of the purchase money notes, and the circuit court expressly so held.

Both parties rely upon the language of the conveyance. It is the form of deed in general use in Illinois (Illinois Annotated Statutes, Vol. II, §2240), and the portion thereof which it is necessary for us to consider is as follows:

"This indenture witnesseth, that the Grantors, Charles Listing and Helen P. Listing, his wife, of the City of Chicago in the County of Cook and State of Illinois for and in consideration of the sum of Ten Dollars and other good and valuable consideration in hand paid, Convey and Warrant to Frank S. Rodes of the City of Charleston, County of Kanawha and State of West Virginia the following described real estate, towit:" etc.

To put the matter concisely, what is the import of the above expression: '' Convey and Warrant"? If the warranty which defendants rely upon is not found in that expression, it is nowhere in the deed. Both parties agree that this ques- tion is to be settled according to the laws of this state, the situs of the land. There could be no dispute about that.

It is not easy in this case to bring the discussion to a head by citing the positions of the parties. Their propositions can not be briefly stated. That the issue may not be obscure, however, we will review their theories as we conceive them.

Plaintiff contends that the only warranties of title in use at the present time in this state are of two kinds or classes: (1) A class of covenants or warranties, the result of custom or practice in Virginia and this state, known as "Modern Covenants of Title", and (2) The statutory warranties provided by sections 12, 13, and 15 of chapter 72, Barnes' Code, 1923. Referring to Vol. IV of Minor's Institutes, page 52, plaintiff defines a "Modern Covenant of Title" as follows:

"Any words which convey the idea designed, except only the word 'warrant, ' by itself, or with the auxiliaries 'shall' or 'will' constitute a modern covenant of title. The word 'warrant' is appropriated in law to express the ancient warranty, and not a modern covenant of title. But the phrase 'to warrant and defend' or 'covenant to warrant, ' etc., constitutes a modern covenant. (2 Min. Insts., 4th. ed. 717 et seq.; 2 Lom. Dig. 318, 321, 343; Tabb v. Binford, 4 Leigh 132; V. C. 1873, ch. 113, secs. 9, etc.-V. C. 1887, ch. 108, secs. 2445 et seq.) ".

Since in the expression "Covenant and Warrant" the only word which indicates a covenant or warranty of title is the word "warrant" alone, plaintiff argues, and perhaps correctly, that the plaintiff's...