Wiseman v. Crislip
| Decision Date | 22 April 1913 |
| Parties | WISEMAN v. CRISLIP et al. |
| Court | West Virginia Supreme Court |
Submitted February 27, 1912.
Syllabus by the Court.
Of two descriptions of land in a deed, one of which is capable of complete and exact application to a subject-matter and the other not, the former is accepted as correct and the latter rejected as erroneous, unless something in the deed, read in the light of the situation and circumstances of the parties discloses intent inconsistent with such construction.
In the absence of statutory enlargement of the common-law powers of married women, respecting dispositions of their real estate equity will not reform the deed of a married woman so as to make it include land it should have embraced, but, by reason of mistake, did not.
Notwithstanding the married woman statutes of this state, the contractual powers of married women respecting conveyance of their real estate are limited in the exercise thereof to a particular and exclusive mode and quoad such estate they have not the contractual powers of femes sole, wherefore equity will not correct a mistake in the deed of a husband and wife conveying only land of the former, so as to make it include lands of the latter, in the absence of a written contract for the sale of her land, executed in the manner prescribed by the statute.
Appeal from Circuit Court, Roane County.
Bill by Henry A. Wiseman against Cyrus A. Crislip and others. From a decree for plaintiff, defendants appeal. Reversed, and bill dismissed.
Walter Pendleton, of Grantsville, and Thos. P Ryan, of Spencer, for appellants.
J. M. Harper and Geo. F. Cunningham, both of Spencer, for appellee.
POFFENBARGER, P.
The bill filed in this cause, for reformation of a deed, so as to make it include 50 acres of land, alleged to have been included in the contract of sale, but admittedly not included in the deed, proceeds upon two alternative theories: Equitable title in the male defendant, by reason of his alleged purchase of the additional land claimed, or title in the female defendant, a married woman, and a contract of sale thereof on her part, with intent to include it in the deed and a right of reformation against her so as to obtain the benefit of the alleged contract. The former theory rests upon the contention that the judicial sale at which C. A. Crislip became purchaser included two tracts of land, one of 200 acres and another of 50 acres, under a designation of one tract of 200 acres; there having been a previous sale of 16 acres out of the 200 acres, and one of 35 acres, not shown to have come out of the 200-acre tract or the 50-acre tract, but supposed to have been taken out of one or the other of them. The question thus presented is the construction of the decree of sale under which C. A. Crislip purchased, viewed in the light of the decree confirming it and such other portions of the record of the suit as are available; practically all of the papers having been lost or destroyed, possibly destroyed by fire. The 50-acre tract and the 200-acre tract were conveyed to Lemuel Crislip on December 2, 1865, the former by Abner Suttle and wife and the latter by Eli Perkins and wife. They were adjoining tracts and seem to have been parts of a larger tract of 400 acres. They are known, respectively, as the Suttle tract and the Perkins tract. On April 13, 1880, Lemuel Crislip conveyed to his son, John L. Crislip, two tracts of land, containing, respectively, 16 acres and 35 acres. Admittedly the 16-acre parcel was a portion of the 200-acre Perkins tract; but it does not appear from what land the 35 acres was taken.
On the 22d day of October, 1880, Lemuel Crislip executed to B. F. Armstrong, trustee, a deed of trust, conveying to him by metes and bounds the Perkins tract of 200 acres in trust to secure a debt to V. S. Armstrong and W. W. Riley, executors of the will of L. C. Stewart, deceased. This deed of trust did not include the Suttle 50-acre tract. On the 10th day of October, 1883, Lemuel Crislip executed a deed by which he conveyed to his daughter, Margaret J. Crislip, certain lands, describing them as follows: "Being the same land conveyed by Eli Perkins and wife, recorded in Book No. 2, page 540, and Abner Suttle and wife in Book No. 2, page 539, to said Lemuel Crislip, party of the first part, except the land conveyed to John L. Crislip by the said party of the first part heretofore containing about 16 acres to the place of beginning." The original deed is not produced, and it is said it cannot be found. The description is taken from an attested copy from the deed book in which it was recorded. As originally recorded, the deed, although professing to convey the two tracts of 200 acres and 50 acres, purported to convey only 200 acres, and, by an erasure and alteration made in the deed book, it purports, as recorded now, to convey 250 acres. When, how, and by whom this alteration was made is not shown. There is no proof of the allegation that it was done by C. A. Crislip, and he denies all knowledge of it. The alteration may be a mere correction of an error in recording the deed. However, the deed undoubtedly conveyed to Margaret J. Crislip the Perkins 200-acre tract and the Suttle 50-acre tract, whether they were described as containing in the aggregate 200 acres or 250 acres. In 1885 Reed and Peebles, judgment creditors of Lemuel Crislip, instituted a suit in equity against him, his codebtor, J. B. Ward, and others, to subject the land of the said Crislip, including that conveyed to Margaret J. Crislip, to the payment of the judgment.
The cause was referred to a commissioner, who reported that the deed of trust held by Armstrong and Riley constituted "the first lien on the tract of 200 acres of land mentioned in the deed of Lemuel Crislip to B. F. Armstrong, trustee, bearing date the 22d day of October, 1880," and which was "filed as Exhibit No. 5 in" the "cause, and also being the tract of 200 acres of land mentioned in the deed of Lemuel Crislip to Margaret J. Crislip, bearing date on the 10th day of October, 1883, and being Exhibit No. 1 filed with the papers of" the "cause"; that plaintiffs' judgment was the second lien in priority on the 200 acres of land and the first lien on a tract of 20 acres mentioned in the deed from Lemuel Crislip to M. J. Crislip, bearing date January 1, 1885. He further reported a debt due to J. A. A. Vandale, secured by a deed of trust, as constituting a first lien on a tract of 118 acres of land and a debt due to A. L. Vandale, secured by a deed of trust, as a second lien on said 118 acres, and the plaintiff's judgment as the third lien on that tract. He further found and reported that the consideration of the conveyance to Margaret J. Crislip of October 10, 1883, was her assumption of the debts and liabilities of the firm of Crislip and Vandale, and all debts and mortgages and liabilities of the said Lemuel Crislip. This report was confirmed and a decree of sale, conditioned on nonpayment of the debts by Lemuel Crislip or some one for him, was entered in the following terms: At the sale under this decree C. A. Crislip became the purchaser of the 200-acre tract of land at the price of $1,700 and the 20-acre tract at the price of $21. For some reason the 118-acre tract seems not to have been sold, and there is no reference in any of the decrees to the 50-acre tract eo nomine.
Crislip, the purchaser of the 200-acre tract, took no deed for it. He subsequently sold and conveyed to Wiseman, and Geo. F. Cunningham, one of the commissioners who made the sale, joined in the deed to Wiseman, though J. G. Schilling alone had been directed to execute the deed on payment of the purchase money. The deed conveys only the Perkins tract. Wiseman claims Crislip sold him both as containing about 200 acres, and has sued for reformation of the deed. The court below, granting the prayer of his bill, reformed the deed so as to make it include the Suttle tract.
Assuming the deed from Lemuel Crislip to Margaret J. Crislip, dated October 10, 1883, to have been at first correctly recorded and to have described the land thereby conveyed as containing 200 acres, as and for the aggregate residue of the Perkins 200-acre tract and the Suttle 50-acre tract, as contended by counsel for the appellee, we have thus far some foundation in the record for the view that the circuit court may have intended by its decree a sale of such residue of such 200 acres, or, to be more accurate, we have some evidence of intent to decree such a sale. The deed from Lemuel Crislip to Margaret J. Crislip is not, however, the instrument by which title was passed to Cyrus A. Crislip. The muniments of title...
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