El Al. v. Petitioner
| Decision Date | 11 November 1899 |
| Citation | 46 W.Va. 769 |
| Court | West Virginia Supreme Court |
| Parties | Chapman el al. v. Charter et al. |
1. Deed Property Conveyed.
A deed made in the following form: ," duly acknowledged, conveys all the right, title, and interest of W. A. C, the husband, in and to the described property, whether the legal title was in him or in A. C., the wife. (p. 778).
2.Deed "Conveys" "Grants.''''
The word "convey;" as used by "the parties of the first part" in said deed, is equivalent in effect to the word "grant," suggested in section 1, chapter 72, Code. (p 778).
3.Demurrer to Evidence
A case in which it was not error to require plaintiffs to join in demurrer of defendants to the evidence. (p. 780).
Error to Circuit Court, Doddridge County
Action by Lloyd W. Chapman and another against Lathrop R. Charter and others. Judgment for defendants, and plaintiffs bring error.
Affirmed.
G. W. Farr and L. W. Chapman, for plaintiffs in error.
J. V. Blair, M. H. Willis, John Bassel, Millard F.
Snider and Edward McSweeney, for defendants in error.
This is a writ of error by plaintiffs, Lloyd W. Chapman and George J. Cottrill, to a judgment rendered in an action of ejectment brought by them in the circuit court of Doddridge County, at the March term, 1898, in favor of the defendants, Lathrop R. Charter, Emory Myers, and D. H. Anderson, on demurrer to the evidence of the plaintiffs. The action was for a tract of seventy-one acres of land in the county of Doddridge, described by metes and bounds in the declaration and deeds offered in evidence. Defendants appeared and entered their plea of not guilty, upon which issue was joined, and upon the 26th day of March, 1898, a jury was duly impaneled and sworn. Plaintiffs introduced as a witness George Fox, who testified; That he was acquainted with the parties to the suit, and was asked if he ever had a conversation with C. A. Charter in regard to the land in controversy, and what he said about it. He answered: That such conversation was in 1894, either in June or July. And therefore defendants insisted that said evidence was inadmissible in law upon the issue, and moved the court to exclude it from the jury, and the court sustained said motion, and the plaintiffs excepted to such ruling, which exception was saved to them by bill of exceptions. It was admitted by defendants that J. D. McReynolds had the full and complete title, derived from patent or grant from the commonwealth of Virginia, and various intermediate conveyances from and under the patentee or grantee of the commonwealth, and that he had such title prior to and on the 22d day of October, 1888, to the land in controversy. Plaintiffs then introduced a deed dated on the 22d day of October, 1888, duly executed and acknowledged on the 23d day of October, 1888, by J. I). McReynolds and Mary M., his wife, whereby they conveyed the said tract of 71 acres of land to William A. Cottrill, with covenants of general warranty, retaining their vendor's lien for a residue of purchase money thereon, which deed was admitted to record in the clerk's office of Doddridge County on the 6th day of December, 1896, and had the following indorsements thereon: .'' Also: Plaintiffs also introduced a deed executed by W. A. Cottrill and Arminta Cottrill, his wife, to L. W. Chapman and George J. Cottrill, dated January 25, 1896, and recorded on the same day, whereby, in consideration of one dollar in hand paid, "and further consideration not here set forth," the said W. A. Cottrill and wife granted, with special warranty, the said tract of seventy-one acres of land to said L. W. Chapman and George J. Cottrill. Plaintiffs also offered in evidence a statement in writing under seal, made, executed, and acknowledged by J. D. McReynolds and Mary M. McReynolds, his wife, dated the 9th day of February, 1893, and sworn to by J. D. McReynolds, and recorded on said 9th day of February, 1893, which statement was to the effect that prior to April 22, 1891, to wit, on the 1st day of November, 1889, the said McReynolds and wife did make, execute, acknowledge, and deliver to W. A. Cottrill a good and lawful deed, with general warranty, of a certain tract of land, containing about seventy-one acres, stating the district in Doddridge county where the same was situate, and giving names of adjoining owners; that they had retained a vendor's lien to secure the deferred payments of $303.75; that afterwards, on or about the 12th day of October, 1892, in said county, said Cottrill returned to them with said deed, it not having been recorded, and requested that they execute another deed for the same land to his wife, Arminta Cottrill, and saying that he would destroy the first named deed, and they did then and there execute and deliver to the said Arminta Cottrill a deed for said land in consideration of two hundred dollars in hand paid and the deferred amount of one hundred and fifty-three dollars and seventy-five cents, for the payment of which they retained a vendor's lien, and referred to said deed of October 12, 1892, for a more definite description of said land, and stating that "the deed first above mentioned was destroyed." To the introduction of which statement defendants objected, which objection was overruled, and defendants excepted. Plaintiffs also introduced in evidence a copy of sale or lease executed by W. A. Cottrill to A. H. Low, dated the 22d day of April, 1891, which was duly acknowledged by Cottrill and Low, and recorded April 23, 1891, by which lease or sale, in consideration of fourteen dollars and twenty-one cents, Cottrill granted and conveyed to said Low, subject to the conditions set forth in the paper, all the oil and gas in and under the said seventy-one acres said grant subject to any rights existing to the lessee by virtue of the lease theretofore given on said oil and gas; but if said lease had expired or become void, or if no such lease ever existed, said grantee should have, and was thereby granted, ail the rights and privileges of drilling and operating on said land, to produce, store, and remove said oil and gas, necessary and usually granted to the lessee in an oil and gas lease. The grant and conveyance were made on condition that lessee should, within 90 days after a well should be drilled on said land to the usual depth for oil and gas, and properly tubed and tested for oil, pay to the grant- or the sum of three hundred and fifty-five dollars, and if said grantee should, as he might do at his option, omit to pay the three hundred and fifty-five dollars within the time, then the grant should be absolutely void, as though it had never been made, and the grantor should retain the fourteen dollars and twenty-one cents as liquidated damages, and depositing the $355 to the credit of grantor in a bank at Clarksburg should be equivalent to payment to and acceptance by grantor; and it was agreed that in case the lease remained in force, and grantee paid the three hundred and fifty-five dollars, he should thereafter be entitled to all the money and royalty arising therefrom, but not before the money was paid. Said grant was to expire ten years from its date if no well should be drilled by that time on said land, unless said sum of three hundred and fifty-five dollars was paid without the well being drilled. Said grant, and its conditions, terms, and provisions, should apply and extend to the grantor and grantee, their heirs, executors, administrators, and assigns. To the introduction of which defendants objected. The objection was overruled, and defendants excepted. Plaintiffs offered in evidence a recorded lease executed by L. R. Charter and wife to E. Myers, dated June 18, 1806, of the said tract of seventy-one acres, for the sole and only purpose of drilling and operating for oil and gas, etc., the lessor to have one-eighth of the oil as royalty. Also, an agreement between E. Myers and D. H. Anderson, whereby said Myers assigned all his right, title, and interest in said lease to said Anderson. Also, a written notice given by plaintiffs to L. R. Charter and C. A. Charter, dated January 27, 1806, notifying them that plaintiffs had purchased said land under said deed of January 25, 1896; that they were informed that said Charters claimed to be the owners thereof by purchase from Arminta Cottrill; and that they were trying to dispose of that said supposed title by sale, lease, or otherwise, and notifying them not to attempt to dispose of said pretended title, because said Arminta had no title when they pretended to purchase the said land, which notice was on record, and dated February...
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