Reynolds v. Cook

• Court: Virginia Supreme Court
• Writing for the Court: Lewis, P. J
• Citation: Reynolds v. Cook, 83 Va. 817, 3 S.E. 710, 5 Am.St.Rep. 317 (1887)
• Decision Date: 10 November 1887
• Parties: Reynolds v. Cook.

3 S.E. 710

83 Va. 817

Reynolds

v.Cook.

Supreme Court of Appeals of Virginia.

November 10, 1887.

1. Estoppel—By Deed—After-Acquired Title.

The plaintiff conveyed a tract of land along James river to defendant, under general warranty, for valuable consideration, and it was stipulated, in a supplemental contract under seal, to cover certain exceptions and provisions not convenient to incorporate into the deed, that defendant should have the right to quarry and remove (free of charge for royalty) from the plaintiff's land on the opposite 3ide of the river, all the limestone required for furnace and agricultural purposes in connection with the tract sold. At the time of sale, plaintiff did not own theland specified on the opposite side of the river, but he acquired it afterwards. Held, that the plaintiff was estopped from setting up, as against defendant's right of quarry, the title subsequently acquired.

2. Evidence—Documentary—Muniments of Title.

In such a case it is proper to admit in evidence the deed and the supplemental agreement; they being muniments of defendant's title.

3. Ejectment—Disclaimer—What Constitutes—Special Plea.

In an action for ejectment, defendant filed a "disclaimer" in the following words: " And the said defendant further says that he does not claim title to the said tract of land sued for in this action; nor does the said defendant claim the possession, or the right to possession, of the said land, except the right to enter upon said land, and to quarry and remove, free of charge for royalty, all the limestone that may be required by the said defendant for furnace and agricultural purposes (in connection with the aforesaid Mt. Airy tract of land) from the said plaintiff's land on the opposite side of the river from the aforesaid Mt. Airy tract, and which are the same lands sued for in this action, as was granted and allowed unto the said defendant by the said plaintiff by and under their certain written agreement under date of——; and this the said defendant is ready to verify." Held,

that this is not technically a disclaimer, but is in the nature of a special plea, and ought to have been rejected.

4. Same—Pleadings—Verdict.

In an action of ejectment the declaration alleged that the defendant unlawfully withheld possession of the whole of the limestone tract of land, and the evidence and the admission of the defendant showed that defendant claimed no other right in the land or possession than the right to quarry and remove limestone therefrom. The verdict of the jury was: "We the jury find the defendant not guilty." Held, that the verdict was contrary to the evidence, and that it should have been for plaintiff except as to the right of quarry.

This was an action of ejectment in the circuit court of Botetourt county. The facts necessary to be stated in order to a correct understanding of the questions decided are these:

On the twenty-third of February, 1880, the plaintiff in error, Corbin M. Beynolds, who was the plaintiff in the court below, sold and conveyed, with a covenant of general warranty, to the defendant Cook, a certain tract of land lying on James river, in the said county, called "Mt. Airy." On the same day the parties entered into a supplemental contract, under seal, wherein it was recited that, it not having been convenient to incorporate into the deed to Mt. Airy certain "exceptions and provisions, " it was therefore stipulated, "as a part of the original contract for the sale of the land, " that the said Reynolds was to have the right to the then growing crop of wheat on the land, and the privilege of harvesting and removing it at the proper time. And then it was further stipulated as follows: "The said Reynolds also grants unto the said Cook the right to quarry and remove all the limestone (free of charge for royalty) that may be required for furnace and agricultural purposes, in connection with the aforesaid Mt. Airy tract of land, from the said Reynold's land, on the opposite side of the river." The consideration for the sale, as expressed in the deed was the sum of $26,000.

At the time of these transactions, Reynolds had no title to the land described as lying "on the opposite side of the river, " which was a tract containing about 20 acres, though he represented to Cook that he owned it. He, however, several years thereafter, in September, 1885, obtained a patent for the same from the commonwealth whereby the legal title to the land became vested in him. After he had thus acquired title to the land, the present action was instituted; he claiming that, the grant of the right to take limestone from the land not having been made with a covenant of warranty, the subsequently acquired title did not inure to the benefit of his grantee.

The defendant pleaded the general issue, not guilty, and also filed what in the record is termed a "disclaimer, " which is as follows: "And the said defendant further says that he does not claim title to the said tract of land sued for in this action; nor does the said defendant claim the possession, or the right to the possession, of the said land, except the right to enter upon thesaid land, and to quarry and remove, free of charge for royalty, all the limestone that may be required by the said defendant for furnace and agricultural purposes (in connection with the aforesaid Mt. Airy tract of land) from the said plaintiff's lands on the opposite side of the river from the aforesaid Mt. Airy tract, and which are the same lands sued for in this action, as was granted and allowed unto the said defendant by the said plaintiff by and under their certain written agreement under date of February 23, 1880; and this the said defendant is ready to verify." To the filing of this paper the plaintiff objected; but the court overruled the objection, and allowed the paper to be filed, to which ruling of the court the plaintiff excepted. The plaintiff also objected at the trial to the introduction in evidence of the deed and the supplemental agreement above mentioned, but the objection was overruled, and he again excepted. It was proved that after the execution of the agreement the defendant had exercised acts of ownership over the land, to the extent of quarrying and removing limestone therefrom at his will, and that his claim did not extend beyond the right to enter upon the same for that purpose.

There was a verdict for the defendant in these words: "We, the jury, find the defendant not guilty." The plaintiff thereupon moved for a new trial, on the ground that the verdict was contrary to the law and the evidence; but the court overruled the motion, and entered up judgment on the verdict, and the plaintiff excepted. To this judgment a writ of error was awarded by one of the judges of this court.

G. W. & L. C. Hanslrong and H. W. Sheffey, for plaintiff in error. Glas-cow & Glascow and Haden & Haden, for defendant in error.

Lewis, P. J., (after stating facts.) By the supplemental agreement under seal of the twenty-third of February, 1880, the right to quarry and remove lime-stone for certain specified purposes was granted by Reynolds to Cook, which passed to the latter an incorporeal hereditament, provided Reynolds was seized of the land in respect of which the right was granted when the agreement was executed. It was clearly an incorporeal hereditament—First, because it was not a mere license, as was the case in Barksdale v. Hairston, 81 Va. 764, and in other similar cases there cited; and, secondly, because it was not the grant of an exclusive right. Iron Co. v. Iron Co., 32 Pa. St. 241; Clement v. Youngman, 40 Pa. St. 341; Marble Co. v. Ripley, 10 Wall. 339; McClintock v. Bryden, 63 Amer. Dec. 101, and cases cited. Such a right has been compared to a grant of common sans nombre, and is therefore an interest in, or a right arising out of, land, and as such constitutes, under our statute, a foundation for an action of ejectment. Code 1873, c. 131, § 5; 3 Kent, Comm. 419; Tyler, Ej. 42.

This is not disputed. The real controversy relates to the effect of the grant in another particular. It appears from the record that, when the grant was made, Reynolds had no title to the land, and the first and principal question is whether he is estopped from setting up, as against the defendant, the title subsequently acquired. He contends that he is not, on the ground that the grant was made without a clause of warranty, and where there is no warranty, he says, there is no estoppel. On the other hand, the defendant contends— First, that the deed to Mt. Airy and the supplemental agreement are virtually one instrument, and therefore that the covenant of warranty in the deed embraces the mineral right also; and, secondly, that the plaintiff is estopped independently of the warranty. As, in our view, the case may be disposed of on the latter ground, that alone will be considered.

The general rule undoubtedly is that, where land is conveyed without warranty, the grantor is not estopped from setting up an after-acquired title. On the other hand, a covenant of warranty works an estoppel, and the reason usually given is that the estoppel prevents circuity of action. Doswell v. Bach-awon's Ex'rs, 3 Leigh, 365; Gregory v. Peoples, 80 Va. 355. But this is not the only ground upon which an estoppel arises. The rule is well established that where the deed recites or affirms, expressly or impliedly, that the grantor is seized of a particular estate, which the deed purports to convey, and upon the faith of which the bargain was made, he will be thereafter estopped to deny that such an estate was passed to his vendee, although the deed contains no covenant of warranty at all; and the rule accords with common honesty and fair dealing.

The leading case on this subject in this country is Van Rensselaer v. Kearney, 11 How. 297, which was ably argued, and very fully considered....