White et al v. Bailey et al.

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

65 W.Va. 573

White et al

v.Bailey et al.

Supreme Court of Appeals of West Virginia.

Submitted March 27, 1908.

Decided April 27, 1909.

1. Deeds Rescission Non-Performance by Grantee.

Neither the reservation of a lien for maintenance and support in a deed of conveyance, made in consideration of a covenant to support and maintain the grantor, nor the insertion therein of a clause, giving him a right to re-enter and use and occupy the land during his life, in case of non-performance of the covenant, extinguishes, cuts off, or prevents right of rescission in the grantor, in the event of failure of the grantee to perform the covenant. (p. 575.)

2. Same Construction Purpose.

A deed should be so construed as to give effect to all of its parts and harmonize them, but functions and purposes, not expressed nor necessarily implied, should not be added after a reasonable and important function for every clause, which the parties may have had in contemplation, has been already perceived. (p. 576.)

3. Same Construction Implied Effect or Purpose.

Generally a provision, effect or purpose is not read into an instrument, as having been implied, unless necessity therefor is found in terms used, or purposes expressed, therein. (p. 577.)

4. Same Construction Intent Extrinsic Circumstances.

The purpose and object of the parties to a deed or other contract, as shown by the instrument itself, read as a whole, at the time of its execution, in the light of the subject matter, the situation of the parties and the circumstances surrounding them, constitute the safest and best guide to their intention. (p. 578.)

5. Equity Laches Prejudice from Delay.

Mere delay, for a long period of time, in asserting a cause of action, cognizable in equity only, working no injury or prejudice to the defendant, in any way, bars relief only on the presumption of abandonment, which may be overthrown by proof of conduct, showing the contrary. (p. 579.)

Executors and Administrators Power to Set Aside Deed. The executor of the will of a deceased person may prosecute a suit to set aside, for failure of consideration, a deed, conveying away land he is authorized by the will to sell. (p. 579.)

Appeal from Circuit Court, Lewis County.

Bill by A. P. White, executor of the will of William J. Bailey, deceased, and another, against Bland Bailey and others. Decree for complainants, and Bland Bailey appeals.

Affirmed.

W. W. Brannon and A. B..& E. E. Fleming, for appellant. Linn & Bland and John Bassel, for appellees.

Poefenbarger, Judge:

Bland Bailey complains of a decree of the circuit court of Lewis county, cancelling and setting aside a deed by which his father, William J. Bailey, had conveyed to him a tract of 208 acres of land, upon a bill'filed for the purpose by the executor of the will of said William J. Bailey and Broaddus College, a beneficiary of a trust created by said will.

The deed so set aside conveyed the land to the appellant, July 12, 1889, in consideration of one dollar and a covenant, on the part of the grantee, "to remove to and occupy, use and cultivate in a proper manner said tract of land, for the exclusive use and benefit of said Bland Bailey and is to support and maintain at his exclusive costs and charge, the said William J. Baile}r, and his said wife during their joint lives, and the life of the survivor of them in sickness and in health, in a comfortable and careful manner in all respects, and on said land in the dwelling house of the said William J. Bailey, thereon, during the time to be occupied by the said William J. Bailey, and wife with the said Bland Bailey and family." A lien for support and maintenance was expressly retained and the following clause of re-entry inserted: "The right is reserved to said William J. Bailey to re-enter said land, and use and occupy the same during his life." The grantee, with his family, immediately moved into the dwelling house with the grantor and remained there about nine months, when, becoming dissatisfied, he went' away and never returned, leaving the grantor in possession. About two years after the execution of the deed, June 18, 1891, William J. Bailey, having no other land and assuming he had become re-investecl, by the breach of the covenant to maintain and support him, with the title, legal or equitable, to the land so conveyed, or a right to acquire the same, executed another deed, purporting to convey, to certain trustees for Broaddus College, a corporation, an undivided half of the tract, and a will by which, after giving numerous legacies, he directed the executors, therein named, Marcellus White and Perry (A. P.) White, to sell the residue of that and any other land he might afterward acquire and pay the legacies. Among the legacies, there was one of $800.00 to Marcellus White and another of $400.00 to Perry White, given by the fourteenth and fifteenth items, respectively, subject to certain conditions, not material here. On the same day, he executed a codicil, directing the payment of $3,000.00 out of his estate to Broaddus College, in the event the deed, executed to the trustees for its benefit should fail to pass title to the land, and gave this legacy precedence over all others except the two above mentioned. By another codicil, made the same clay, he reduced Marcellus White's legacy to $600.00. He retained the control and management of the land until his death, sometime in the year 1903. The bill seeks instruction and guidance of the court, respecting the duties of the executor in the premises and a settlement of the estate.

Unless principles well settled, generally recognized and often declared by this Court are rendered inapplicable by the peculiar terms of the deed and the time and circumstances of the institution of the suit, the decree is manifestly right. This is frankly admitted. The principal contentions in the brief of counsel for the appellant are: (1) the provisions of the deed, reserving security for performance of the covenant and prescribing a remedy for breach thereof, precluded resort to any other; (2) relief is barred by laches. The others are merely argumentative, collateral and subsidiary in character.

The main reliance for reversal is the re-entry clause. As, by the deed, the grantor conveyed the fee simple title and then reserved a lien for support and a right to re-enter upon the land and "use and occupy the same during his life", it is said he was limited to these two methods of relief, since the parties contemplated possibility of failure and undertook to provide for it. In other words, it is contended that, by adding the words, "and use and occupy the same during his life", he limited the purpose of his re-entry and the scope and extent of his relief, in respect to title, to the recovery of a life estate. This view seems to rest upon the assumption of the existence of an ambiguity, calling for the application of a rule of construction requiring the terms of an ambiguous deed to be taken most strongly against the grantor. Besort is not had to this rule, unless ambiguity or uncertainty remain after all others have been vainly appealed to in an effort to ascertain the meaning of the instrument. 2 Kent. Comm. 556; 13 Cyc. 609; Chitty Con., p. 137; Ham. Con., sec. 413. Nor will uncertainty or a doubt be unnecessarily introduced or raised. It must appear from the terms. When the terms are plain and a reasonable function for all clauses or provisions, contained in the instrument, is clearly discernible, and no necessary friction, repugnancy or inconsistency will result, and nothing in the purposes or obects contemplated, require any further effect to be given to any clause, the instrument should have effect according to the plain meaning of the terms used. All authority opposes construction, or the reading in of matter not expressed, when it is not rendered necessary in some way or for some reason. United States v. Fisher, 2 Cranch 358 (202)'; Jackson v. Lewis, 17 Johns. 475; Turnpike Co. v. People, 9 Barb. 161; Morgan v. Railroad Co., 96 U. S. 716. These cases involved the interpretation of statutes, but the same rule applies in the interpretation of contracts. Chitty Con., p. 113; Ham-mon Con., pp. 811-13, sec. 412; Devlin Deeds, sec. 836.

What function could the re-entry clause have been intended to perform? Its object was to enable the grantor to regain possession in case of necessity. That it was not intended as a full, complete and exclusive remedy, in case of failure, is made apparent by the retention of a lien, reaching beyond the supposed life estate to the fee. Many contingencies might arise. The grantee might die, leaving only a widow and children, wholly incapable of managing the farm so as to sustain themselves and to render the support, stipulated for, or he might become an invalid, in consequence of which failure could occur under peculiar circumstances and from unavoidable causes, such as might make it desirable to forego the equitable right of rescission, provided the grantor could take control himself or substitute some person capable of perfecting the object both parties had in view. A general re-entry clause would have made it necessary, under such conditions, to wholly terminate the estate of the grantee or allow it to exist to the great disadvantage and embarrassment of the grantor. No right of re-entry at all would have made it still worse, as possession could not then have been rightfully regained, until after a decree of rescission, perhaps delayed by protracted litigation. The clause of re-entry may also have been intended to supplement the lien for support, since any attempt to enforce that might have met with resistance, causing delay. Thus it appears to be wholly unnecessary to say this clause was intended to cut off the equitable right of rescission, in case of non-performance of the covenant, in order to find an important function for it to perform. Moreover, there is no express waiver of the right of rescission, nor, indeed, any...