Waldron v. Pigeon Coal Co

• Decision Date: 12 February 1907
• Citation: 56 S.E. 492,61 W.Va. 280
• Court: West Virginia Supreme Court
• Parties: WALDRON et al. v. PIGEON COAL CO.

61 W.Va. 280

56 S.E. 492

WALDRON et al.

v.PIGEON COAL CO.

Supreme Court of Appeals of West Virginia.

Feb. 12, 1907.

1. Deeds—Construction.

The modern rule as to the construction of deeds is that a deed is to be so construed, taken as a whole, as to attain and execute the manifest intent of its parties.

[Ed. Note.—For cases in point, see Cent Dig. vol. 16, Deeds, §§ 231, 232.]

2. Same—Bargain and Sale.

Any writing, signed and sealed, by which for valuable consideration one person sells land to another described therein, is a deed of bargain and sale, passing legal title under the statute of uses; found in Code 1899, c. 71, § 14 (Code 1906, | 3033).

[Ed. Note.—For cases in point see Cent. Dig. vol. 16, Deeds, §§ 39-49. 54.]

3. Interest: —Defebred Purchase Monet.

A deed for land provides for periodic payments of interest on deferred purchase money, but does not provide for interest on such periodic installments of interest after they become due. Such unpaid installments of interest will not bear interest.

[Ed. Note.—For cases in point, see Cent Dig. vol. 29, Interest §§ 30, 31, 134-137.]

4. Same—Enforcement.

Quaere: Will a provision, in a contract or deed selling or conveying land, that periodic payments of interest on deferred purchase money shall bear interest if not paid when due, be enforced? (Syllabus by the Court.)

Appeal from Circuit Court, Mingo County.

Bill by Hester Ann and M. H. Waldron against the Pigeon Coal Company. Decree for complainants, and defendant appeals. Reversed.

Vinson & Thompson, for appellant.

L. D. Vickers, for appellees.

BRANNON, J. Hester A. Waldron and her husband made a deed to the Pigeon Coal Company, containing, in the granting part of the deed, the language: "Do grant unto the party of the second part with covenants of general warranty the following described property, to wit: All the coal, gas, salt wa ter, oil, and mineral of every description in, upon and under the farm or tract of land situate" (describing it). Following the description of the land the deed contains the following clause: "There is a controversy as to 98 acres "adjoining above lands, or being part thereof, and, if parties of the first part succeed in the litigation over the same, then the same shall be added to or considered part of the land herein conveyed, and will contain 978 acres." The deed reserved a lien for both principal and interest The consideration stated in the deed was $21,950, the sale being at $25 an acre. Of this purchase money $5,000 was paid down, the balance to be paid in 20 years from October 24, 1901, with interest at the rate of 4 per cent per annum, payable semiannually on the 24th day of April and 24th day of October. Some interest remaining unpaid, Waldron and his wife brought a chancery suit in the circuit court of Mingo county to enforce the lien for the payment of unpaid interest by a sale of the property conveyed by the deed, and the interest was decreed and the property subjected to sale, and the coal company appealed.

One of the errors assigned Is the overruling of the demurrer to the bill; but the brief of appellant's counsel does not argue this point and it is not necessary to consider it The bill and amended bill contain no allegation that Mrs. Waldron had succeeded in the controversy as to the 98 acres mentioned in the clause above given. They do not even mention that tract or demand pay for it; but during the pendency of the suit an order was made which says: "This day the plaintiff filed with the papers in this cause a copy of the record and mandate of the Supreme Court of this state in the case of Hester Ann Waldron and others against Thomas H. Harvey and others." By this record it was intended to prove that Mrs. Waldron had vindicated her claim to the 98 acres, and was entitled to increase the amount of purchase money by the addition of its purchase money. The court directed a survey, and found the tract described as 98 acres to contain 38 acres, and included in its decree purchase money for that tract, and thus increased the debt and interest That record is omitted from the record on which this appeal was granted, and we do not know what it contains. However, that trouble could be cured by a writ of certiorari to bring that record up. But that would not cure the real trouble. That trouble is that there is nothing in the bill averring that Mrs. Waldron had in the controversy touching the 98 acres sustained her claim. The bill does not state that she had sustained her title, or by what adjudication, or in what court A debt is decreed for that land, acknowledged in the deed to be in controversy, without any facts in the bills to charge the coal company with that debt The mere filing of the recordwould not constitute a pleading on which to decree indebtedness, on which to assert that the title had been cleared from the cloud admitted to exist in the deed. A decree for money liability must rest on allegation. The facts touching the adjudication sustaining Mrs. Waldron's title should have been stated In a supplemental bill.

The decree does not provide for a conveyance from Waldron and wife to the coal company for the 38 acres of land. Should It have done so? That depends on the question whether the deed operates to convey that tract. It was evidently the Intention of the grantors to convey that tract, as well as the 878 acres, or along with it, in case Mrs. Waldron's title should be in the future sustained. The deed does not, by the words "do grant, " convey that 98 acres; that is, those words are not connected with that tract There are no words of transfer or grant clearly annexed to that tract; but that was the intent, and deeds are nowadays construed so as to get at the intention of the grantor, and the whole instrument, not merely and separately disjointed parts, is to be considered. Uhl v. Railroad Co., 51 W. Va. 106, 114, 41 S. E. 340, discusses this subject. McDougal v. Musgrave, 46 W. Va. 509, 33 S. E. 281, so holds. Also Lindsey v. Eckels, 99 Va. 668, 40 S. E. 23. I do not mean to say that granting words are not necessary; but, taking into consideration the granting words as to the 878 acres and the clause relating to the sale of the 98 acres following at once after the description of the large tract, in juxtaposition, I would apply the words "do grant" to the 98 acres, because of manifest intent. The words, "or being part thereof, " show plainly the intent of the grantor to convey the 98 acres. This deed conveys an estate upon condition future; that is, provided Mrs. Waldron should gain the 98 acres then in litigation. Upon the happening of that event the title would pass to that 98 acres. A deed may convey an estate upon condition precedent.

But, suppose that I am in error in making the words "do grant" operate as to the 98 acres; then I say that the instrument plainly sells for consideration the tract of 98 acres. It bargains and sells that tract upon condition stated. It is a deed of bargain and sale, operating under the statute of uses. Section 14, c. 71, Code 1899 (Code 1906, § 3033). Though chapter 72 gives a form of deed, It was not designed to abolish other modes of conveyance, but was only remedial, intending to make the word "grant" pass real estate, which it could not do before the adoption of the Code of 1849. Ocheltree v. McClung, 7 W. Va. 232. It was only designed to add the grant to the means of conveyance of real estate, and give a short, sensible form. The deed of bargain and sale still stands good, as shown by the force given It by the...