State v. Herold et al.
| Decision Date | 18 June 1915 |
| Court | West Virginia Supreme Court |
| Parties | State v. Herold et al. |
For ascertainment of the intent of the parties to a deed in which the description of the subject matter is inconsistent, contradictory and ambiguous, extrinsic evidence is admissible. (p. 540).
A beginning corner of a survey, inconsistent with other portions of the description of the subject matter of the deed, and shown by the situation and purposes of the parties and all the surrounding circumstances, to have been selected by mistake, may be rejected and the subject matter ascertained and determined by the parts of the description that harmonize with the obvious intention of the parties, (p. 540).
A call in a description for a tree or other object as being on one of the exterior lines of the grantor's lands, which is shown by extrinsic evidence only not to be on such line, is latently ambiguous; and, if it appears from the situation and purposes of the parties and the surrounding circumstances, that adoption of such line, as the true monument, and rejection of the tree will make the conveyance conform to their real intention and that the adoption of the tree, as the monument, would defeat it, the former interpretation must prevail, (p. 540).
Ordinarily the call for the tree or other object will prevail, under such circumstances; but, if the adoption thereof would make the deed include land the grantor did not own and omit land owned by him which would pass under the other interpretation, the case falls within an exception to the general rule, by force of a strong presumption against intent on the part of either party to include in the deed land to which the grantor had no title, (p. 541).
A deed is to be interpreted and construed as of its date and a call in the descriptive portion thereof for an adjoining tract of land, as a monument, is a call for the true location of such adjoining tract at the date of the deed; and the location of the adjoining tract, though not involved in the litigation, may be ascertained for the purposes of the interpretation of the deed calling for it. (p. 541).
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. Remanded.
G. G. Duff and Price, Smith, Spilman & Clay, for appellants.
W. C. Reddy, A. A. Lilly, Attorney General, and John B. Morrison and J. E. Brown, Assistant Attorneys General, for the State.
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 non-entry for taxation and non-payment 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 Ephriam 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 Oct. 22, 1877, and the Byrne deed, Sept. 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 ruining with Wilson to "a red oak on Cherry Run," (Wilson's southeast corner); and the second as running S. 56 E. 230 poles to ''two chestnut oaks on a divide between the waters of Buffalo and Strange Creeks." Though 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 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 if, 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 developes 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 timebr 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 Anew 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...
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