State v. Herold
| Citation | 85 S.E. 733,76 W.Va. 537 |
| Court | Supreme Court of West Virginia |
| Decision Date | 18 June 1915 |
| Parties | STATE. v. HEROLD et al. |
STATE.
v.
HEROLD et al.
Supreme Court of Appeals of West Virginia.
June 18, 1915.
Robinson, P., and Williams, J., dissenting.
Appeal from Circuit Court, Nicholas County.
Suit by the State against A. C. Herold and John B. Emery and others, to forfeit lands for nonentry for taxation. From a decree adjudicating forfeiture and allowing defendant Herold to redeem, defendants Emery and others appeal. Affirmed in part, reversed in part, and remanded.
G. G. Duff, of Summersville, and Price, Smith, Spilman & Clay, of Charleston, for appellants.
W. C. Reddy, of Summersville, A. A. Lilly, Atty. Gen., and John B. Morrison and J. E. Brown, Asst. Attys. Gen., for the State.
POFFENBARGER, J. The alleged right of A. C. Herold to redeem portions of a certain tract of land in a suit instituted by the state for sale thereof, on the ground of forfeiture for nonentry for taxation and nonpayment of taxes thereon, accorded to him by the decree appealed from, is contested by John B. Emery and others, who deny forfeiture of the title and claim the land mediately from A. C. Herold himself and payment of taxes thereon by themselves and those under whom they hold.
By a deed dated July 9, 1866, Wm. H. Edwards conveyed to Herold a tract of land, in form an irregular parallelogram, supposedly containing 600 acres. Out of this Herold sold a tract of 100 acres to Wm. R. Wilson and a tract of 125 acres to Ephraim Sargent. These two tracts purported to come out of the center of the 600-acre piece; the Wilson parcel extending clear across it and the Sargent tract only partially across it. Later he sold the east and west ends of the original tract to Benj. W. Byrne. No doubt Wilson and Sargent were in possession of their purchases for considerable periods of time before deeds were executed, conveying them, for the deed made to Byrne calls for their boundaries, but bears an earlier date than their deeds. The Wilson deed bears date May 22, 1877, the Sargent deed October 22, 1877, and the Byrne deed September 28, 1874.
The Wilson deed describes the beginning corner of the Wilson tract as being a large chestnut, "on a line of said Herold's 600 acres"; the first line as running irregularly northeast to "a small sugar on a rich hillside, " the second line as following the course of the north line of the original tract to "a large sugar on a rich hillside, " the third as being generally parallel to the first and ending at a "red oak near Cherry run on the east side and on a line of the whole tract, " and the last as following the course of the south line of the original tract to the place of beginning. The beginning point in the description in the Sargent deed is identical with that of the Wilson tract; the last line but one is described as ending at pointers "on a line of the original survey;" and the last line is described as running "with the same (line of the original tract) to the beginning." The chestnut and red oak called for in the Wilson deed, as being on the south line of the original tract, are shown by extrinsic evidence to be about 40 poles north of that line and within the original tract. Run from them, the east and west lines of the Wilson tract will carry it about 40 poles beyond the north line and into land he did not own and leave out, at the south, land he did own.
The two ends of the original tract were conveyed to Byrne by a single deed; the east end as containing 400 acres and the west as containing 150 acres. In the description of the former, the beginning corner is described as "a sugar on a rich hillside and corner to said Wilson's 100 acres"; the first line as running with Wilson to "a red oak on Cherry run" (Wilson's southeast corner), and the second as running south 56 east 230 poles to "two chestnut oaks on a divide between the waters of Buffalo and Strange creeks." Thought not so described in the Byrne deed, this is the southeast corner of the original tract, and the course of the line to it is the course of the south line of the original tract. The course of the third line is admittedly erroneous, and the course of the last is the course of the north line of the original tract. The timber called for in the Edwards deed, as the northwest and southwest corners of the original tract, is called for in the deed to Byrne, as corners of his 150-acre tract, but is not described as being such corners, and the courses to and from those corners are the
[85 S.E. 735]same as those of the north and south lines of the original tract. On the other side, the description connects this tract with the Wilson and Sargent tracts and is inconsistent with the western corners and courses to and from them, if the Sargent and Wilson tracts are to be located 40 poles north of the original south line. Otherwise it is not.
Herold claims his deed omitted a strip 40 rods wide along the southern line of the 600-acre tract. If so, it has been forfeited, and he has the right to redeem it; he not having paid any taxes on it, since the dates of his conveyances. All taxes on such lands as are covered by the Byrne deed have been paid, and that land is now owned by John B. Emery and others. They say the Byrne deed properly construed carried their 400-acre tract and their 150-acre tract to the south line of the original tract. No adverse claim to so much of the 40-rod strip as lies immediately south of the Wilson and Sargent tracts is made.
Within the terms of the deeds, extrinsic evidence may be considered upon the inquiry as to what was really intended. Such evidence develops latent ambiguities in the Wilson and Sargent deeds. Both call for the south line of the original 600-acre tract conveyed to Herold by Edwards. They also call for certain timber at the point of intersection with that line. Locating the timber on the line at the same point, when in fact it is about 40 poles from the line in each instance, these calls are necessarily ambiguous, and latently so, because the discrepancies do not appear on the face of the deeds and are revealed only by extrinsic evidence. If we say the parties intended, in the case of the Wilson deed, to commence on that line and return to it, and, in the case of the Sargent deed, to run to that line, we do not go outside of the terms of the deeds, because that southern line is called for in the deeds as much and as clearly as the timber is called for in them. We do no more than ascertain, from the subject-matter of the instruments and the situation and purposes of the parties, which objects they really intended to make the monuments, the trees or the line. One is as much within the deed as the other, in each case. In view of the extraneous evidence disclosing dominant intent, the phraseology of the calls is unimportant, as will be shown later. In locating these tracts first, we do no more than Herold did in his conveyances. He located the Byrne tracts by the Wilson and Sargent tracts. His description of the 400-acre Byrne tract begins with the northwest corner of the Wilson tract, but erroneously describes it as being a sugar on a rich hillside. Wilson's deed, properly construed, puts that corner in the northern line of the original tract. In describing the Byrne 150-acre tract, he made the Sargent tract a monument and boundary, and that tract runs down to the southern line of the original tract. Moreover, the Byrne deed manifests clear Intent not to go beyond the lines of the original tract. One of the corners of that tract is made a corner of the Byrne 400-acre tract, namely, the southeast corner. The distance from that call on another line is the exact distance called for in the eastern line of the original tract, and to reach that corner, the description calls for the course of the southern line of the original tract. Two of the corners of the 150-acre Byrne tract are corners of the original tract, the northwestern and southwestern. It reaches the former by running the same course as that called for in the old deed from Edwards and leaves the latter by that course. In these facts it found overwhelming evidence of purpose to stay within the lines of the original tract, in the conveyances of the Byrne tracts, and it is shown in the very terms of the deeds.
The Wilson and Sargent deeds may be read and considered upon this inquiry, because the tracts of land they convey are monuments called for in the descriptions of the Byrne tracts. They are as clearly monuments as the trees called for as corners, and, being tied to the southern line in express terms and limited to the northern by the distances, areas, and intent necessarily arising out of the subject-matter and situation and purposes of the parties, they carry the Byrne conveyances to the southern line, on the one hand, and limit them to the northern line, on the other.
That the Wilson and Sargent lands are not involved in this litigation, and that those lands have been claimed and held in accordance with an erroneous interpretation, do not preclude correct locations of their boundaries for the purpose of determining the true location of the Byrne tracts. The date of the Byrne deed is the time with reference to which the intention of the parties is to be ascertained. The contemporaneous or subsequent conduct of Wilson, induced by an error as to the relation of the trees to the line, is wholly immaterial. Every contract is construed as of the time at which it was made. Scraggs v. Hill, 37 W. Va. 706, 17 S. E. 185; Titchenell v. Jackson, 26 W. Va. 496; Crislip v. Cain, 19 W. Va. 483. Wilson may have precluded himself, by his subsequent conduct, from insisting upon the true construction of his deed, but that would not affect claimants under the Byrne deed, who have the right to go back to the date thereof for its true construction, unless they too are precluded from doing so by acquiescence or estoppel in some form. Of that there is no evidence. For the proposition here stated, namely, that a tract of land called for as a...
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