Norfolk & Portsmouth Traction Co v. Bros

• Decision Date: 18 January 1912
• Citation: 73 S.E. 467,113 Va. 102
• Court: Virginia Supreme Court
• Parties: NORFOLK & PORTSMOUTH TRACTION CO. v. C. B. WHITE & BROS., Incorporated.

73 S.E. 467

(113 Va. 102)

NORFOLK & PORTSMOUTH TRACTION CO.

v.C. B. WHITE & BROS., Incorporated.

Supreme Court of Appeals of Virginia.

Jan. 18, 1912.

1. Vendor and Purchaser (§ 230^*)—Bona Fide Purchaser—Notice.

Where defendant's deed recited that it was the intent of his grantor to convey all the property acquired by said grantor under a certain recorded deed, and that the property was subject to any easements created by the occupancy of a street railway, and the recorded deed referred to contained no reference to the easement of the street railway, it merely gave notice to the grantee that the street railway was in possession of part of the land conveyed, but not as to the railway's title.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. § 230.*]

2. Vendor and Purchaser (§ 232*)—Bona Fide Purchaser — Recording of Deed — Possession as Evidence of Title.

Code 1904, §§ 2463, 2464, 2465, respectively, provide that every contract for the sale or conveyance of real estate, not in writing shall be void as to bona fide purchasers and creditors; that any such contract, if in writing, from the time it is admitted to record shall be, as against creditors and purchasers, as valid as a deed conveying the property covered by the contract; and that every such contract in writing, or deed conveying any estate or term of years, as to subsequent purchasers and creditors, shall be void, unless duly recorded, provided that the possession of any such estate, without notice of other evidence of title, shall not be notice to subsequent purchasers. Held that, while the proper office of a proviso is to modify or restrain the enacting clause or preceding matter, and a proviso to a particular section does not apply to others, unless it is clear that its effect was intended to extend beyond the section immediately preceding it yet the proviso in this case applies to all of the preceding sections, because all were intended to perfect registry laws, and section 2463 was intended to place the purchaser of land under a parol agreement in the same condition as purchasers under a writing who had failed to record it; and hence the mere possession of a purchaser of land under a parol contract is not notice to a subsequent bona fide purchaser.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-562; Dec. Dig. § 232.*]

Appeal from Law and Chancery Court of City of Norfolk.

Bill by the Norfolk & Portsmouth Traction Company against C. B. White & Bros., Incorporated. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Williams & Tunstall and H. W. Anderson, for appellant.

Tazewell Taylor, for appellees.

BUCHANAN, J. This is an appeal from a decree sustaining a demurrer to an amended bill filed by the appellant to restrain the appellee from prosecuting an action of ejectment to recover a small strip of land over which the appellant alleges that it has a perpetual right of way, acquired under a parol purchase from D. C. Foreman, who subsequently sold and conveyed the land over which the right of way passes to the John L. Roper Lumber Company, which company conveyed the land to the appellee.

The ground relied on to obtain the relief sought is that when the appellee acquired title to the land it had notice of the appellant's rights therein, by reason of a provision in the deed of the appellee and the fact that the appellant was in possession of the right of way, and was operating its street car line over it at that time.

The appellee's deed contains the following statement, viz.:

"It is the intention of this deed to convey unto the parties of the second part all of the property acquired by the said party of the second part by a certain deed made to it by D. C. Foreman and wife dated on the 18th day of April, 1902, and of record in the office of the clerk of the corporation court of the city of Norfolk, Virginia, in Deed Book 134-B, page 222, to which reference is hereby made as part hereof, together with any additional rights, privileges or appurtenances obtained after the execution of the said deed by virtue of the change of the port warden's line, as made and adopted by the board of harbor commissioners on the 11th day of July, 1904, and subject to any easements (if any) acquired by the Berkley Street Railway by virtue of its occupancy of a part of said property, as shown on said plat, with its street railroad, the said party of the first part having given the said Berkley Street Railway no right so to occupy, or made no conveyance to it of any interest therein.

"The party of the first part covenants that it is seized in fee simple of the aforesaid property; that the same is free from incumbrances; that it will execute such further assurances thereof as may be requisite and necessary, and that it will warrant generally the title thereto."

The only effect of the language quoted, as we construe it, and as seems to be conceded by the petition of the appellant for the appeal, when read in connection with the deed of Foreman to the appellee's grantor, which neither reserved nor made mention of the appellant's right of way, was, so far as it affects this case, to give notice to the appellee that the appellant was in the posses-sion of a part of the land conveyed. The question, therefore, to be determined upon this appeal is whether or not a vendee of an interest in land of a greater extent than a term of five years, under a verbal contract, who has paid the purchase price, and is in possession of such interest, has superior rights to a subsequent grantee of the land who has no other evidence of the former's title than his possession.

The decision of this question depends upon the effect of the proviso to section 2465 of Pollard's Code. If, as contended by the counsel of the appellant, that proviso only applies to possession taken under such contracts as are mentioned in section 2465, and not to possession taken under such contracts as are described in section 2463, then the amended bill stated a case entitling the appellant to the relief sought.

Sections 2463, 2464, and 2465 of the Code are as follows:

"Sec. 2463. Contracts in consideration of marriage, or for the sale of real estate, and so forth, void as to creditors and purchasers unless in writing. Every contract, not in writing, made, in respect to real estate or goods and chattels, in consideration of marriage, or made for the conveyance or sale of real estate, or a term therein of more than five years, shall be void, both at law and in equity, as to purchasers for valuable consideration without notice and creditors.

"Sec. 2464. If in writing and recorded, as valid as deeds. Any such contract, if in writing, shall, from the time it is duly admitted to record, be, as against creditors and purchasers, as valid as if the contract was a deed...