Parrish v. Pancake

• Decision Date: 10 June 1975
• Docket Number: No. 13500,13500
• Citation: 215 S.E.2d 659,158 W.Va. 842
• Court: West Virginia Supreme Court
• Parties: Harold W. PARRISH et al., etc. and Lorin R. Carnell et al., etc. v. Lucy PANCAKE.

Page 659

215 S.E.2d 659

158 W.Va. 842

Harold W. PARRISH et al., etc. and Lorin R. Carnell et al., etc.

v.

Lucy PANCAKE.

No. 13500.

Supreme Court of Appeals of West Virginia.

June 10, 1975.

Syllabus by the Court

1. 'Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the circuit court, the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the circuit court.' Syllabus point 3, Fanti v. Welsh, 152 W.Va. 233, 161 S.E.2d 501 (1968).

2. 'Whether there has been a delivery of a deed is a question of fact rather than of law depending upon the intent of the grantor to vest an estate in the grantee.' Syllabus point 2, Garrett v. Goff, 61 W.Va. 221, 56 S.E. 351 (1907).

James H. Swadley, Jr., Keyser, James, Wise, Robinson & Magnuson, Charles C. Wise, Jr., and Joseph Beeson, Charleston, for appellees.

H. R. Athey and Gary Athey, Keyser, Anthony G. Halkias, Charleston, for appellants.

NEELY, Justice:

This appeal was granted in order to determine whether valid delivery of a deed occurred in a transaction allegedly conveying to the grantee a perpetual right of way across the property of the grantor. The Circuit Court of Mineral County found that, although the delivery of the deed was invalid as a matter of law, there existed an intention on the part of the plaintiff-grantor to convey an easement for life to the defendant-grantee and, therefore, the circuit court reformed the instrument to conform to its findings. As this Court finds that the delivery of the deed was valid and that there were no patent ambiguities in the written instrument which would warrant judicial construction, the judgment of the circuit court is reversed.

On March 12, 1969, one of the appellees, Lorin R. Carnell, conveyed a permanent easement for a right of way to the defendant below and appellant, Lucy Pancake, her heirs and assigns, forever. ¹ The easement Seven months later appellees Lorin R. Carnell and Katherine L. Carnell, conveyed to appellees Harold W. Parrish and Allene R. Parrish for fifty-five thousand dollars ($55,000) all the real estate which they In a pre-trial order the Circuit Court of Mineral County held that because of the missing signature of Katherine L. Carnell the deed granting the easement was incomplete on delivery and, therefore, parol evidence concerning its effect and intent would be admissible. The case was referred to a commissioner of the circuit court who found that (1) the consideration for the granting of the easement was a forbearance by Pancake to demand payment for timber which had been inadvertently cut from her land by Carnell; (2) Carnell did intend to grant a right of way to Pancake; (3) there was no evidence of fraud, deceit, or mistake in the transaction; and (4) the recordation of the deed by Pancake five months before the purchase by the Parrishes served as constructive notice of the right of way and, therefore, the Parrishes were bound by the instrument.

consisted [158 W.Va. 845] of a fourteen foot right of way for all types of travel over certain real estate owned by Lorin R. Carnell in fee simple and located on the west side of U.S. Route 50 in Mineral County, West Virginia. The easement was to be a privilege appurtenant to Lucy Pancake's land to provide a means of entrance and exit to and from her land. The deed contained a description of the right of way by [158 W.Va. 846] metes and bounds which was prepared by a licensed surveyor. Lorin R. Carnell executed the deed; however, it was not executed by his wife, appellee Katherine L. Carnell, who was named as a grantor in the deed but whose sole interest in the real estate was an inchoate dower interest. It is this failure of execution by Mrs. Carnell upon which the circuit court relied in holding that the delivery of the deed was invalid. The deed in question was acknowledged April 7, 1969, and recorded in the Office of the Clerk of the County Court of Mineral County, West Virginia, on May 2, 1969 owned lying on the westerly side of U.S. Route 50 in Mineral County. The land conveyed by the Carnells to the Parrishes was subject to the easement; however, the deed from the Carnells to the Parrishes did not mention the easement nor did it except or reserve the easement from the conveyance. Approximately two years after execution of the deed from the Carnells to the Parrishes, the Carnells and Parrishes together instituted this civil action against Lucy Pancake to have the deed conveying the easement from Lorin Carnell to Lucy Pancake declared void.

The circuit court overruled the commissioner's findings and held that the circumstantial evidence showed no intent on the part of Lorin Carnell to convey a permanent right of way, and further held that the deed had not been validly delivered. The circuit court apparently based its conclusion on testimony by Lorin Carnell that he did not intend for the deed to become effective because he knew that his wife would refuse to sign it. Furthermore, the circuit court relied on evidence that the wife's name was in the granting clause, that a line was provided at the end of the deed for her signature, and that the acknowledgment was originally written to include her as a party to the deed, although Donald C. Hott, Pancake's attorney, struck her name from the acknowledgment clause when he finally signed it as a notary.

I

The correct rule for this Court's evaluation of evidence in a case originally heard by a commissioner is set forth in syllabus point 3 of Fanti v. Welsh, 152 W.Va. 233, 161 S.E.2d 501, 502 (1968) which says:

'Where questions of fact are referred to and passed upon by a commissioner, and the findings of the commissioner are overruled and disaffirmed by the circuit court, the appellate court must determine for itself, from the facts and circumstances disclosed by the record, whether it will sustain the conclusion of the commissioner or that of the circuit court.'

The findings of the commissioner in chancery, on questions of fact, should generally be sustained, unless plainly not warranted by any reasonable view of the evidence, Snyder v. Lane, 141 W.Va. 195, 89 S.E.2d 607 (1955). In the case at bar this Court finds that the clear weight of the evidence sustains the commissioner's conclusion that there was an intent on the part of Lorin Carnell to convey an easement to Lucy Pancake, and that there was valid consideration in the forbearance by Pancake to collect the fair market value of timber cut by Lorin Carnell from her property. The testimony of Lucy Pancake, Alma Becker, her daughter, Frank Pancake, her brother-in-law, Donald C. Hott, her attorney, and Larry Kitzmiller, a licensed surveyor, sustained the appellant's contention that Lorin Carnell agreed to convey the easement in return for the timber. The weight of the evidence also shows that Lucy Pancake relied upon this agreement and incurred the expense of having the easement surveyed and expended additional monies in purchasing

an easement over the property of one Vaughn Amtower in order to connect the easement across the Carnells' land with the public highway, and that Mr. Carnell signed the deed in question knowing that it conveyed the easement to which the parties had agreed. The only evidence supporting the appellees' allegation of non-delivery is Lorin Carnell's testimony that he forgot his glasses the day that he signed the deed and that, consequently, he did not read the instrument and did not intend the deed to become effective because his wife would be unwilling to sign it.

II

The threshold issue concerns the effect of multiple grantors when less than all signed the deed. To resolve that issue requires reckoning with two confusing and at first blush, apparently contradictory holdings of this Court. In Adams v. Medsker, 25 W.Va. 127 (1884) one Philip Lyons, a resident of the State of Pennsylvania, died intestate owning land in Harrison County, West Virginia. All of his heirs took equal shares of the Harrison County property. Only one of the heirs, Medsker, had lived on the property before the death of Lyons. Consequently, the other heirs agreed to convey their interests in the property to Medsker. One deed was prepared in which all of the heirs except Morgan Lyons and his wife were named as grantors in the granting clause. The deed was signed and sealed by all of the heirs, including Morgan, who was not named in the granting clause, but Thomas Campbell, an heir who Was named in the granting clause did not sign the deed.

The Court held that the deed was effective only to pass the titles of those heirs who were named in the granting clause And who had signed the deed. That is to say, the deed was ineffective to pass the titles of Morgan Lyons and Thomas Campbell. Each of the heirs intended to convey his share regardless of what the others did. Even though neither Morgan Lyons nor Thomas Campbell had accomplished all of the formalities, the Court held that those parties who did intend to convey their interests, who were properly named, and also who had properly signed...