Virginia Iron, Coal & Coke Co. v. Dye

• Court: Kentucky Court of Appeals
• Writing for the Court: MILLER, J.
• Citation: Virginia Iron, Coal & Coke Co. v. Dye, 146 Ky. 519, 142 S.W. 1057 (Ky. Ct. App. 1912)
• Decision Date: 31 January 1912
• Parties: VIRGINIA IRON, COAL & COKE CO. v. DYE et al.

142 S.W. 1057

146 Ky. 519

VIRGINIA IRON, COAL & COKE CO. v. DYE et al.

Court of Appeals of Kentucky.

January 31, 1912

Appeal from Circuit Court, Pike County.

Action by the Virginia Iron, Coal & Coke Company against Charles Dye and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

Auxier Harman & Francis, for appellant

C. C Bowles and J. S. Cline, for appellee.

MILLER J.

This appeal involves the construction of the following deed "This deed of conveyance, made and entered into this 31 day of May, 1878, between William Sword, Sr., and Malinda Sword, his wife, party of the first part, and Elizabeth Dye and her children, party of the second part, witnesseth: That said party of the first part, for and in consideration of a swap in land do hereby sell and convey to the party of the second part, her heirs and assigns the following described property, to wit: [Description of land omitted.] To have and to hold the same together with all the appurtenances thereunto belonging unto the party of the second part, her heirs and assigns forever. And the said party of the first part hereby covenants with the said party of the second part that they will warrant the title to the property hereby conveyed to the party of the second part and his heirs and assigns forever. In testimony whereof, the party of the first part have hereunto subscribed our names the day and year aforesaid."

Elizabeth Dye was the daughter of William Sword, Sr., and the wife of Lilburn Dye, by whom she had 16 living children. The land "swapped" as the consideration for said conveyance belonged to Lilburn Dye, the husband. In 1887, and after the death of Lilburn Dye, Elizabeth Dye sold and conveyed all of the coal, salt water, oil, gas, and mineral upon and under said land, with all the usual mining privileges, to Greenway and his associates, reserving, however, the fee simple in the surface, and the right to mine coal for household use. The appellant, the Virginia Iron, Coal & Coke Company, as the successor in title from Greenway and his associates, filed this action on December 6, 1909, against Elizabeth Dye (now Elizabeth Marrs) and certain of her children and grandchildren for the purpose of quieting the title to said mining privileges, alleging that said defendants were illegally and wrongfully claiming that Elizabeth Dye took only a life estate under the deed from William Sword, Sr., in 1878, and that her children and the descendants of those who had died own the remainder estate therein. The circuit judge, resting his decision upon the authority of Bowe v. Richmond, 109 S.W. 359, 33 Ky. Law Rep. 173, dismissed the petition, and from that judgment the plaintiff prosecutes this appeal.

If Elizabeth Dye took a fee-simple estate under the deed from William Sword, Sr., her conveyance to Greenway and his associates passed the entire estate in the mining privileges, and the appellees, who are children and grandchildren of Elizabeth Dye, have no interest whatever therein; but, if Elizabeth Dye took only a life estate under said deed, her children and grandchildren own the remainder, and the judgment dismissing the petition was right.

In Kelly v. Parsons, 127 S.W. 792, this court, in announcing a well-recognized canon for the construction of deeds, said: "In construing a deed, this court is committed to the doctrine that the intention of the parties, as appears from the whole deed, must control. If the intention appears, technical rules of construction cannot be applied if they lead to a different result. If the granting clause and the habendum are irreconcilable, and the other parts of the deed do not make it apparent which the grantor intended should control, the granting clause will prevail. Hall v. Wright, 121 Ky. 16, 87 S.W. 1129, 27 Ky. Law Rep. 1185. But if both parts of a deed may well stand together, consistent with the rules of law, they will be construed to have that effect, rather than be held repugnant. 13 Cyc. 618. So, too, where it is apparent from the instrument that the word 'children' is used in the sense of 'heirs,' as where they are used interchangeably, the term "children' will be read as meaning 'heirs' and construed as a word of limitation and not of purchase. McFarland v. Hatchett, 118 Ky. 423, 80 S.W. 1185, 26 Ky. Law Rep. 276; Moran v. Dillehay, 8 Bush, 434; Hood v. Dawson, 98 Ky. 285, 33 S.W. 75, 17 Ky. Law Rep. 880; Lachland's Heirs v. Downing's Ex'rs, 11 B. Mon. 32; Williams v. Duncan, 92 Ky. 125, 17 S.W. 330, 13 Ky. Law Rep. 389." Again in Tanner v. Ellis, 127 S.W. 996, in referring to the use of words, and the construction to be given them when used in their popular sense rather than in their strict legal meaning, this court said: "The object of all rules of construction is to arrive at the intention of the parties; and when, upon a consideration of the whole instrument, the intention of the parties in the light of their surrounding circumstances sufficiently appears, it will be carried out. The court must look to the whole instrument to ascertain the intention of the parties rather than to a particular word, for it is well known that persons frequently use words in their popular sense rather than in their strict legal meaning; and, if there is enough in the paper to show what the parties in fact meant, their actual intention will be enforced. See Hall v. Wright, 121 Ky. 16, 87 S.W. 1129, 27 Ky. Law Rep. 1185; Bowe v. Richmond, 109 S.W. 359, 33 Ky. Law Rep. 173; Cook v. Hart , 117 S.W. 357; McSurley v. Venters, 104 S.W. 365, 31 Ky. Law Rep. 965."

In Bowe v. Richmond, 109 S.W. 359, 33 Ky. Law Rep. 173, which the circuit judge treated as decisive of this case, the caption of the deed recited that "Caroline Bowe, and her children by A. J. Bowe," were the parties of the second part. The granting clause conveyed "to the party of the second part, her heirs," while the habendum clause recited that the land should be held "to the second party, and her heirs and assigns forever." It will thus be noted that the deed in Bowe v. Richmond, and the deed in the case at bar, are, from a legal standpoint, substantially the same in effect; the only difference being that in Bowe v. Richmond the granting clause conveyed "to the party of the second part, her heirs," while the granting clause of the deed at bar conveyed "to the party of the second part, her heirs and assigns." In both deeds the captions are to the mother and her children, while the habendum clauses are identical. It is true, however, in the deed in the case at bar "the grantor (grantors) covenants with the said party of the second part that they will warrant the title to the property hereby conveyed to the party of the second part, and his heirs and assigns forever"; but this clause will not affect the interpretation to be given to the other parts.

In contruing the deed in Bowe v. Richmond, supra, this court said: "A. J. Bowe, the husband of Caroline Bowe, and the father of her children, paid a valuable consideration for the tract of land in controversy. The deed, though from one unrelated to the grantees, was made as directed by A. J Bowe, the purchaser, and with the evident purpose of providing for his wife and children. In this respect the instrument should be regarded as a deed made by the husband and father himself, or as a will by which he intended to dispose of his estate for the benefit of those who would naturally be expected to receive it because entitled to his bounty. The conveyance here is, by the direction of the husband and father, made to 'Caroline Bowe and her children by A. J. Bowe, of the second part.' This expression is followed by the granting clause, which says that, in consideration of $900 and a note of $100, the party of the first part 'does hereby sell, grant and convey to the party of the second part,' etc. What person or persons will the words, 'party of the second part,' as here used, and the words, 'second p...