Warner v. Kittle, 14599

• Decision Date: 17 July 1981
• Docket Number: No. 14599,14599
• Parties: Martha WARNER, et al. v. Omega KITTLE, et al.
• Court: West Virginia Supreme Court

Page 276

280 S.E.2d 276

167 W.Va. 719

Martha WARNER, et al. v. Omega KITTLE, et al.

No. 14599.

Supreme Court of Appeals of West Virginia.

July 17, 1981.

Syllabus by the Court

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syllabus, John W. Lodge Dist. Co., Inc. v. Texaco, Inc., W.Va., 245 S.E.2d 157 (1978).

Sponaugle & Sponaugle, George I. Sponaugle and George I. Sponaugle, II, Franklin, James F. Cain, Elkins, for appellants.

Harry A. Smith, III, Elkins, for appellees.

PER CURIAM:

This is an appeal by Martha Warner and others from a final order entered by the Circuit Court of Randolph County on January 31, 1979, dismissing their action to determine title to a 115 acre tract of land. The court ruled that the appellants failed to state a claim upon which relief could be granted and that their claim was barred by laches. In this appeal the appellants assert that the trial court erred in so ruling and in dismissing their case without affording them an opportunity to present evidence on the issues raised. We agree, and we reverse the decision of the circuit court.

This case involves a 115 acre tract of land located in Dry Fork District, Randolph County. Prior to 1946 that tract and two other tracts containing 160 acres and 150 acres, less certain outconveyances, belonged to William M. Armentrout and Fannie Armentrout, his wife. On March 26, 1946, the Armentrouts executed and delivered a deed to George R. Warner which provided in part:

"That for and in consideration of the sum of Four Thousand Dollars ... the said parties of the first part do hereby grant and convey unto the said party of the second part ... the following described real estate situate in Dry Fork District of Randolph County, West Virginia, containing about One Hundred and Eighty acres and being the residue of two tracts bounded and described as follows:

"FIRST TRACT

(There follows a description of the 160 acre tract, less outconveyances).

"SECOND TRACT

(There follows a description of the second tract, less outconveyances).

"There is also specifically herewith reserved and excepted from the operation of this conveyance that part of the original descriptions which has heretofore been condemned by the United States of America ... it being the intent of the said parties of the first part to convey to the said party of the second part two tracts of approximately 90 acres each being the residue owned and held by said parties of the first part of the two tracts aforementioned, and it further being the intent to convey to said party of the second part all of the said tracts that they now own."

This deed did not specifically mention the 115 acre tract which is the subject of this proceeding.

On August 15, 1951, George R. Warner conveyed the property which he had received under the March 26, 1946 deed to C. A. Warner. The 1951 deed did not specifically mention the 115 acre tract. Subsequently C. A. Warner died leaving the appellants as his heirs.

On February 11, 1976, the appellants filed the complaint instituting the proceeding now before us. They alleged that after the 1951 conveyance to C. A. Warner:

"(H)e (C. A. Warner) immediately took possession of all of said real estate, occupied the same, built a large pond on said real estate for commercial fishing purposes; that he farmed one field; that he erected a building on said real estate; that he constructed a new fence along one whole side of said real estate between he (sic) and Richard Phares; that he constructed a camp ground on said real estate, which was used for commercial purposes and that he and your Complainants have otherwise occupied and enjoyed complete and full possession of the real estate without any interference or claim of right by any other person or persons ever since 1951."

The complaint also alleged that the 115 acre tract had been inadvertently omitted from the 1946 conveyance. The appellants prayed that the 1946 deed be reformed to include the 155 acre tract. They also prayed for such other relief as the court deemed proper. Lastly, they demanded a jury trial.

The appellees, the heirs of the Armentrouts, the parties-defendant below, filed an answer in which they averred, among other points, that the appellants were not entitled to any relief whatsoever, that they, in effect, had failed to state a claim upon which relief could be granted.

On December 19, 1978, the circuit court conducted a hearing in the matter. At the hearing the judge stated that the questions raised should be determined by the court sitting without a jury and that there would not be a jury trial. The appellants objected. The court also concluded that the appellants had failed to state a claim upon which relief could be granted and that any possible claim was barred by laches.

At the conclusion of the hearing, in which no evidence was taken, the court entered the order from which the appellants now appeal. From the court's ruling it is obvious that the court considered the appellees' argument that the appellants had failed to state a claim and their prayer to dismiss as a motion to dismiss for failure to state a claim upon which relief could be granted, the type of motion governed by Rule 12(b)(6) of the Rules of Civil Procedure.

In the Syllabus of John W. Lodge Dist. Co., Inc. v. Texaco, Inc., W.Va., 245 S.E.2d 157 (1978), we said:

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

In the earlier case of Chapman v. Kane Transfer Co., W.Va., 236 S.E.2d 207, 212 (1977), we said:

"For the purposes of the motion to dismiss the complaint is construed in the light most favorable to the plaintiff. The trial court's inquiry will be directed to whether the allegations constitute a statement of a claim under Rule 8(a). A motion to dismiss for failure to state a claim is viewed with disfavor ...."

Given these points, the question in the case before us becomes: did the complaint, when construed in the light most favorable to the appellants state a claim upon which relief can be granted?

The appellants allege that they stated two claims: (1) that the 1946 deed should be reformed to include the 115 acre tract; and (2) that they are owners of the tract by adverse possession. Our rule regarding reformation of deeds is set forth in Syllabus Point 1 of Johnston v. Terry, 128 W.Va. 94, 36 S.E.2d 489 (1946):

"A court of equity has power and jurisdiction to decree the reformation of a deed executed through a mutual mistake of the parties as to what is intended therein, or through a mistake of a scrivener in failing to make the agreement express the mutual intention of the parties, where such reformation is sought as between the parties, or the successor of either, who, at the date he acquired an interest in the property affected by such deed, had notice of the grounds on which reformation is sought."

Our rule on adverse possession is:

"One who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period: (1) That he has held the tract adversely or hostilely; (2) That the possession has been actual; (3) That it has been open and notorious (sometimes stated in the cases as visible and notorious); (4) That possession has been exclusive; (5) That possession has been continuous; (6) That possession has been under claim of title or color of title." Syllabus Point 3, Somon v. Murphy Fabrication & Erection Co., W.Va., 232 S.E.2d 524 (1977).

However, we have long recognized that no formal pleading is required to allege adverse possession. Any language which will apprise the opposing party that the statute of limitations for adverse possession is being relied upon is sufficient if such facts are stated as are necessary to show that the statute is applicable. Talbott v. Woodford, 48 W.Va. 449, 37 S.E. 580 (1900); Humphrey v. Spencer, 36 W.Va. 11, 14 S.E. 410 (1892).

In the complaint instituting the case before us the appellants alleged that:

"(W)hen William Armentrout and his wife executed and delivered a deed to George Warner, they erroneously and by mistake failed to accurately describe all of their real estate in said conveyance and one parcel of said real estate consisting of approximately ______ acres, was inadvertently omitted from said conveyance."

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