Waldron v. Waller

• Decision Date: 27 April 1909
• Parties: WALDRON et al. v. WALLER et al.
• Court: West Virginia Supreme Court

64 S.E. 964

(65 W. Va. 605)

WALDRON et al.

v.WALLER et al.

Supreme Court of Appeals of West Virginia.

April 27, 1909.

Rehearing Denied June 9, 1909.

1. Deeds (§ 181^*)—Alteration by Party-Effect.

If, after execution, a deed for land be altered by the grantee or by his privity so as to make it describe, land not granted thereby, its operation as an executed contract is not affected, and the title vested by it is not disturbed. The effect of such unauthorized alteration is to deprive the party making it of allfuture benefits of an executory nature or obligation which he might have derived under the deed.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 553; Dec. Dig. § 181;* Alteration of Instruments, Cent. Dig. §§ 122-132.]

2. Deeds (§ 181^2-*)—Alteration—Effect upon Rights of Parties.

Such unauthorized alteration of a deed will not entitle the grantor by a suit in equity to set aside his deed and be reinvested with the title to the land conveyed.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 553; Dec. Dig. § 181;* Alteration of Instruments, Cent. Dig. §§ 122-132.]

3. Deeds (§ 51*)—Acknowledgment (§ 7*)— Alteration — Redelivery — Reacknowl-edgment.

If, after it has been executed and delivered, a deed for land, with the consent of the grantors, be altered so as to make it describe a arger boundary, in order to make it effective to convey the additional land it should be redelivered, and, if it has been acknowledged before the alteration, it should be again acknowledged.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 97; Dec. Dig.§ 51;* Acknowledgment, Cent. Dig. § 257; Dec. Dig. § 7.*]

4. Reformation of Instruments (§ 47*) — Proceedings and Relief.

In a suit by a grantor to set aside a deed and be reinvested with the title to the land conveyed on the ground that the same has been altered without his consent, the grantee therein, on his cross-bill answer, charging that the land covered by the alteration represents the land actually purchased and paid for, and of which possession was given, and on which valuable improvements have been made, with the knowledge and consent of the grantor, may have specific execution of the original contract, and the grantor decreed to make a new deed correcting the mistake in the original deed, and, in default thereof by him, have a commissioner appointed to make, execute, and deliver such corrected deed on his behalf.

[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. § 198; Dec. Dig. §

(Syllabus by the Court.)

Appeal from Circuit Court, Mingo County.

Bill by Hester A. Waldron and another against Sarah A. Waller and others. Decree for defendants, and complainants appeal. Modified, and as modified affirmed.

G. R. C. Wiles, for appellants.

Douglas W. Brown and Stokes & Bronson, for appellees.

MILLER, P. Hester A. and M. H. Waldron, May 2, 1906, sued Sarah A. Waller and her four infant children in the circuit court of Mingo county, seeking to set aside and vacate a certain deed made by them April 13, 1904, to the said Sarah A. Waller and George Waller, her husband, and to have the title to the lots conveyed reinvested in them, by which deed, in consideration of $1 in hand paid and acknowledged, and the further sum of $100 to be paid in six months, evidenced by note, they released and quitclaimed to said grantees all their right, title, and interest in and to a certain lot of land in Fairfax, Mingo county, conveyed to them December 8, 1902, by A. J. Gauze and wife, describing it by metes and bounds; and also purporting to convey with covenants of general warranty a certain lot adjoining the first, bounded as follows: "Beginning at a stake on the line of the Norfolk & Western Railway right of way, at a point 36 feet from the line of the lot now owned by the said Eva Deskins; thence with the line of said right of way 25 feet to a stake, running in a northwesterly direction; thence south 61.30 degrees and 5 minutes west about 150 feet to the water edge of Tug river; thence with the meanders of said river to a bunch of grape vines at the corner of the lot now owned by the said Sarah A. Waller, standing near the water edge; thence with the line of said lot to the beginning"—the object of said deed being, as recited on its face, to settle and compromise a chancery suit then pending in said court, involving a dispute as to a boundary line of said lots; and also seeking to set aside another deed made May 26, 1904, by said George Waller to the said Sarah A. Waller, and her said infant children, conveying to them the same lot, and for general relief. On final hearing March 8, 1907, on bill, answer of Sarah A. Waller, and separate answer of said infant defendants, by guardian ad litem, and depositions taken and filed, the court below, being of opinion that the plaintiffs were not entitled to the relief prayed for, dismissed their bill, and they have appealed.

It is conceded with respect to the deed of April 13, 1904, as originally executed and delivered, one of the calls in the boundary of the last lot conveyed, which reads, "thence south 55 degrees and 5 minutes west about 150 feet to the water edge of Tug river, " was changed before recordation so as to read, "thence south 61.30 degrees and 5 minutes west about 150 feet to the water edge of Tug river, " and that as recorded it has on its face, following the acknowledgment, a memorandum made April 23, 1904, by the county surveyor, of a resurvey of the lot conveyed, changing said course from "S. 55° 5'" to "S. 61.30° W." However, in the deed from George R. Waller to Sarah A, Waller and children, made May 26, 1904, the description of the lot is the same as in the original.

The only evidence taken on behalf of defendants is the testamentary of Gaujot, the surveyor who made the resurvey, who says, respecting this survey and the change made by him in the deed: That on the day he re-surveyed the lot and made the change in the description, and made the memorandum thereof on the deed, he received a message to come to Naugatuck, and when he got there he found the Wallers wanted him to run out the true course of the lot which heunderstood had been recently purchased by them from the Waldrons; that he did the surveying in the presence of M. H. Waldron, and in running these courses and distances he found that the change in the course as shown in the memorandum and made by him on the deed was necessary; that Waldron was present at the time and consented that the change should be made, and, when made, that he consented to the redelivery of the deed, and was present when he redelivered the deed to the Wallers; that he took supper with the Waldrons the same evening and heard Waldron talk the matter over with Mrs. Waldron and tell her he had made the change in the deed, and heard her say, "It was all right with her"; that before making the resurvey they waited for Waldron to come, and when he came he pointed out the monuments to him by which to make it; and that the making of the change in the deed was perfectly satisfactory to the Waldrons.

Besides their own depositions, the plaintiffs took the testimony of Henry P. Clark, a relative, and of their son, E. H. Waldron. Waldron admits his presence at the survey, as well as that of Clark, but denies that he consented to the change, and both he and Mrs. Waldron deny the alleged conversation the same evening in the presence of Gaujot, as testified to by him, and they also deny that she then consented to the change as made, or that either of them knew the change had been made until a short time before suit brought,...