Totten v. Pocahontas Coal & Coke Co.

• Decision Date: 17 May 1910
• Parties: TOTTEN v. POCAHONTAS COAL & COKE CO. et al. [d1]
• Court: West Virginia Supreme Court

68 S.E. 373

67 W.Va. 639

TOTTEN v. POCAHONTAS COAL & COKE CO. et al. ^[d1]

Supreme Court of Appeals of West Virginia.

May 17, 1910

Syllabus by the Court.

A deed whereby the grantor, for a small money consideration and "a good and peaceable life maintenance," bargains and conveys to his wife and infant children all his real and personal estate, but which contains no words of limitation and which at common law would not have passed to the grantees a greater estate than one for the life of the grantor, will not now, by virtue of section 8, chapter 71, Code 1906, pass a fee simple estate if the contrary intention appears.

Where in such deed the grantor after the premises, and in express terms retains the legal title to the land granted, and in himself and wife, one of the said grantees, upon certain contingencies and conditions stipulated therein, the power to sell and convey said land, a subsequent deed by him and his wife to a third party, made in execution of the right and power so reserved, reciting the occurrence of said contingencies and conditions, will pass good title to the land to such third person, and operate as a defeasance of all right and title which vested immediately in the grantees in said former deed, or that on the death of the grantor but for the execution of such power might have vested in them by virtue of the grant or by virtue of the subsequent provision thereof that "the division of this deed, shall at the deat h of said T. K. Totten be made equal between his wife, and all of the children now surviving and those that may survive."

In the construction of such deeds the rules against repugnancy of terms and restraints upon alienations, applicable to deeds granting estates in fee simple have little, if any application.

Appeal from Circuit Court, McDowell County.

Suit by Major Henry Totten against the Pocahontas Coal & Coke Company and others. Decree for plaintiff, and defendant Coke Company appeals. Reversed, and bill dismissed.

Williams and Brannon, JJ., dissenting.

A. W Reynolds, J. S. Clark, and Anderson, Strother & Hughes, for appellant.

Chapman & Gillespie and A. S. Higginbotham, for appellees Totten and others. Bernard McClaugherty, for appellee Lambert.

MILLER J.

This is a suit for partition of four several tracts of land in Pocahontas county. Plaintiff alleges that he is the owner of an undivided one sixth thereof; Victoria Totten of another sixth; the defendants Effier and Belcher, jointly of a one twelfth, and George W. Lambert of another twelfth, together constituting the one sixth conveyed to W. L. Totten; and the Pocahontas Coal & Coke Company, of three sixths undivided interest therein, constituting, as the bill alleges, the one sixth originally conveyed to Matilda J. Totten, and the two sixths conveyed to Walter C. Totten and Boyd M. Totten, deceased, infant children of T. K. and Matilda J. Totten, who died subsequent to the conveyance thereof to them and inherited from them by their father, said T. K. Totten.

The Pocahontas Coal & Coke Company denies that plaintiff and its co-defendants, alleged to have such interests in said land, have in fact any interest therein. On the contrary it alleges that by deed from the said T. K. Totten and Matilda J. Totten, February 24, 1902, made in execution of the power of sale and rights reserved to them in a deed of September 5, 1889, and now calling for our construction, it acquired and now owns the entire and exclusive right and title to said land, and that plaintiff and others who would have the same partitioned in this suit have absolutely no interest therein entitling them to partition.

The decree appealed from granted partition as prayed for.

By deed of September 5, 1889, upon which the conflicting claims of the parties depend, the said T. K. Totten, in consideration of one hundred dollars, receipt of which is therein acknowledged, and "the further consideration of a good and peaceable life maintenance, *** bargained and conveyed" unto the said "Matilda J. Totten, his wife, and Wm. L. Totten, Major H. Totten, Boyd M. Totten, Walter C. Totten and Victoria Totten" all of his estate real and personal, particularly described, including the land which the bill seeks to have partitioned. The deed recites that certain option contracts were outstanding for certain of the tracts conveyed, and provides that if the lands covered thereby should thereafter be sold and conveyed pursuant to said contracts, then the purchase money therefor should be thereby conveyed. The deed also contains a covenant on the part of the grantees binding them "to pay all debts made by the said T. K. Totten for the purchase of goods north or elsewhere, also a fee to D. E. Johnston." But the important provisions thereof calling for construction, and the one upon which the rights of the parties to the controversy mainly depend, are as follows:

"And the said T. K. Totten claim and retain the power in this deed, if the family ever wants to move from the premises or if the said T. K. Totten & wife think they can better their situation then they shall be vested with the right and power to sell and convey anything embraced in this deed, that is to say, as long as the said T. K. Totten is living, and the said T. K. Totten does vest in himself the legal title to sell or dispose of anything or any part of any land or lot mentioned in this deed by the consent of his wife, if the family ever become needy of anything, and it is his opinion that it is advisable to do so.

"The division of this deed, shall at the death of the said T. K. Totten be made equal between his wife, and all of the children now surviving and those that may survive."

The Pocahontas Coal & Coke Company, appellant, by its counsel, contends that taken by its four corners and applying the legal rules of construction, and having due regard to the rules of property, this deed invested in the grantees, not an absolute fee simple title, but an equitable estate or title for the life of the grantor, subject to a reserved power of alienation, and in case of failure to exercise this reserved power, the complete legal title to vest in the grantees and their survivors, and the survivors of them, upon the death of the grantor. The claim of appellees on the other hand is that the provisions of the deed reserving in the grantor legal title to sell and dispose of the land granted by the premises upon the several conditions named, and for the final disposition of the land at the death of the grantor, are repugnant to and inconsistent with the estate granted, or intended to be granted, and therefore void, and that an estate in fee simple absolute was thereby invested in the grantees in præsenti. We have thus presented squarely the controlling issues in the case.

It is conceded on both sides that the polar star that should guide us in the construction of deeds as of all other contracts is, what was the intention of the party or parties making the instrument, and when this is determined, to give effect thereto, unless to do so would violate some rule of property. This rule has been often declared by this court. Gibney v. Fitzsimmons, 45 W.Va. 334, 32 S.E. 189; Uhl v. Railroad Co., 51 W.Va. 106, 41 S.E. 340, and cases cited. In the latter case Judge Brannon says: "As to wills the rule has ever been that regardless of form or orderly parts, we must look at the real intention; but this has not been the case in the construction of deeds. Deeds have orderly parts, technical words of precise legal signification, and in times gone by those parts and words, and the strict rule of construction of them, have been rigorously observed often defeating the manifest intention. Modern construction, however, has leaned towards the intention, overriding mere form and technical words, and nowadays it may be said that the intention must rule the construction in deeds as well as in wills. Humphrey v. Foster, 13 Grat. (Va.) 653: Mauzy v. Mauzy, 79 Va. 537; Lindsey v. Eckels (Va., 1901) 99 Va. 668, 40 S.E. 23, show this to be the rule in Virginia; and Hurst v. Hurst, 7 W. Va. 289; and Goldsmith v. Goldsmith, 46 W.Va. 426, 33 S.E. 266; McDougal v. Musgrave, 46 W.Va. 509, 33 S.E. 281, and Bank of Berkeley Springs v. Green, 45 W.Va. 171, 174, 31 S.E. 260, show this to be the rule in West Virginia."

On behalf of appellees it is said that one of the rules of property well established is that "stipulations reservations, exceptions, or conditions, in a deed, which are inconsistent with, or tend to depreciate or destroy, the estate or interest granted, are void," and that repugnant words, clauses or conditions must be made to yield to the main purposes of the grant. Riddle v. Town of Charlestown, 43 W.Va. 796, 28 S.E. 831; Goldsmith v. Goldsmith, 46 W.Va. 426, 33 S.E. 266; Uhl v. Railroad Company, supra; Chapman v. Coal & Coke Co., 54 W.Va. 193, 46 S.E. 262. That another rule, of ancient origin, is that against restraints on the power of alienation. This rule is perhaps nowhere better stated than by the Supreme Court of the United States in Potter v. Couch, 141 U.S. 296, 11 S.Ct. 1005, 35 L.Ed. 721, as follows: "The right of alienation is an inherent and inseparable quality of an estate in fee simple. In a devise of land in fee simple, therefore, a condition against all alienation is void, because repugnant to the estate devised." Other cases relied on and stating and applying these rules are McClure v. Cook, 39 W.Va. 579, 20 S.E. 612; Steib v. Whitehead, 111 Ill. 247, 251; Pynchon v. Stearns, 11 Metc. (Mass.) 304, 45 Am.Dec. 210; De Peyster v. Michael, 6 N. Y. 467, 57 Am.Dec. 470; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am.Rep. 61; Anderson v. Cary, 36 Ohio St. 506, 38 Am.Rep. 602; Maker v. Lazell, 83 Me. 562, 22 A. 474, 23 Am.St.Rep. 795; ...