MAYNARD et al. v. UNITED THACKER COAL CO., 262 F. 478

PRITCHARD, Circuit Judge. This is a suit instituted in the District Court of the United States for the Southern District of West Virginia, by the plaintiffs against the defendant, who seek to quiet their title to certain lands hereinafter referred to. The facts in this case may be epitomized as follows: In the year 1870 Richard Maynard, his wife, Charlotte, uniting, in furtherance of a scheme for partitioning his landed estate among his numerous sons, conveyed to his son John B.

Maynard the tract of land in the bill of complaint set out and described, by a deed, the construction of which is the subject of controversy in this suit. The appellants’ contention is that the said deed vested the said John B. Maynard with a life estate only in the tract of land therein described. The appellee’s contention is that the said deed vested the said John B. Maynard with a fee simple absolute title in said tract of land; the minerals and incidental rights and privileges pertaining to which passed by mesne conveyances unto, and are now claimed in fee simple absolute by, the appellee.

The deed upon which appellee relies is in the following language: “This deed made this the 30th day of September, 1870, between Richard Maynor and Oharlotty Maynor his wife of the first, part and John B.

Maynor of the second part both of the county of Logan and state of West Virginia witnesseth that the parties of the first part hath this day bargained and sold and by those presents doth grant bargain and sell unto the party of the second for and in consideration of the sum of fifty dollars to be paid to Parlee Stepp wife of Aaron Stepp by the first day of June 1871 and twenty five dollars to he paid by the first day of June 1871 to Sarah Ann Stepp wife of Hiram Stepp all the following named lands to wit lying and being in the county of Logan & State of West Virginia on Lick creek a tributary of the Tug fork of Sandy river and bounded as follows to wit — [here follows description] To have and to hold Hie same during his natural life and then to descend to the heirs of his body but the party of the first part grants to the party of the second part the right to sell the foregoing lands to either of his brothers or sisters the parties of the first part hereby reserves a line upon the lands for purchase money stipulated the said Richard Maynor & wife Charlotta Maynor hereby grants and relinquishes to the said John B.

Maynor all their right, title and interest in the foregoing named lands to have and to hold the same forever upon the fulfillment of the contract & payment of the sums stipulated. Given under our hands and seals day and date mentioned.” The appellants, in their bill of complaint, pleaded all the facts pertaining to the aforesaid scheme of division of the landed estate of the said Richard Maynard among his children, filing therewith numerous exhibits, constituting both their own and the chain of title of the appellee.

Thereupon the appellee moved to dismiss the appellants’ bill of complaint, and the said motion was sustained by the court. Whereupon appellants filed a petition for a rehearing, to which were appended as exhibits numerous deeds from the said Richard Maynard and Charlotte, his wife, to their other sons, all made as a part of the general scheme of the said Richard Maynard for dividing his landed estate among his sons as aforesaid. The court having overruled appellants’ petition for a rehearing, they now prosecute this appeal.

In order that we may properly interpret the provisions of the deed in question, we must, if possible, ascertain the intention of the grantor at the time the deed was executed. Therefore it is necessary to consider the situation, the circumstances surrounding the transaction, and the purpose of the grantor; in other words, the situation which confronted the grantor and his wife (who, no doubt, were well advanced in years), and what it was they wished to accomplish when they executed this deed, as well as the deeds to the other six sons. Why were the peculiar and somewhat inconsistent terms of this deed employed?

There must have been some substantial rea'son prompting the grantor to draft the deed in the manner he did. It appears that prior to the year 1870 Richard Maynard was the owner in fee simple absolute of a large contiguous body of land, aggregating about 1,100 acres, situated on Lick creek, a tributary of the Tug fork of Sandy river, then known as Logan county, W. Va. It further appears that he was the father of ten children, seven of whom were sons and three daughters, the daughters being Harriett Maynard, Sarah Ann Stepp (wife of Hiram Stepp), and Parlee Stepp (wife of Aaron Stepp).

The facts and circumstances clearly show that the father for some reason was of opinion that it would be best to convey the real estate to the sons, and it further appears that it was his desire to provide for his daughters; hence the requirement that his sons pay to each of his daughters such amounts as would in the aggregate be equivalent in value to the share of land they would have received, had the land been apportioned equally among all the sons and daughters.

That this was the grantor’s purpose in partitioning his lands is evidenced by the fact that he undertook to retain liens on the various tracts until the sons should pay to the .three daughters the respective amounts therein provided. It must be admitted that the deed was inartificially drawn and is somewhat contradictory in its terms; but, while this is true, the provisions are such as to warrant us in assuming that it was his intention not only to. convey the land to his sons, but at the same time secure such amounts as were to be paid to the daughters.

Instead of conveying the land outright to his sons and then requiring them in turn to execute to him deeds of trust on the lands in question to secure the payment of the notes to his daughters, he undertook in a simple way to charge the same with a lien for the several amounts which he exacted of them to be paid as a condition precedent to investing them with the fee simple title to this property.

After restricting the right of alienation, except as to the brothers and sisters, the grantor then undertook to reserve a lien upon the lands, as we have said, for the purchase money stipulated to be paid to the daughters, which is as follows: “* * * The said Richard Maynor and wife Charlotta Maynor hereby grants and relinquishes to the said John B.

Maynor all their right title and interest in the foregoing named lands to have and to hold the same forever upon the fulfillment of the contract & payment of the sums stipulated.” The next question is as to whether the grantees complied with the stipulation which required that they should pay to the daughters the respective sums fixed by the grantor.

The learned judge who tried this case in the court below, in referring to this phase- of the case, said: “It is conceded that the purchase price mentioned in the deed has been fully paid.” Therefore there has been a literal fulfillment of the requirements of the grantor as a condition precedent to the grantees becoming invested with fee simple titles for these lands. .

It would be contrary to all rules of construction to ignore the concluding clause of the deed, wherein the grantors relinquished to the grantee all their right, title, and interest in these lands, which provides that the grantee shall hold the same forever. The learned judge, in construing this deed, among other things, said: “After a careful study of the context of this deed, it seems clear to me that Richard Maynard, desiring to divide his property among, his children, intended to convey to John B.

Maynard the property herein involved in fee, upon the compliance by him with the terms and conditions therein set out In other words, a life estate only (and that subject to the lien retained) was to vest in the grantee in the event of his failure to fulfill the conditions therein Imposed, viz. the payment of the consideration mentioned to the grantee’s sisters, which evidently constituted, or was to constitute, a portion of their division of the property; and upon the payment of the consideration set out, a fee simple estate should vest.

In determining the intention of the grantor, courts look not only at the words used, hut to the situation, and circumstances of the parties as well. The modem rule governing construction leans toward the intention of the maker, overriding mere form and technical words, and now it may be said that the intention must govern and rule the construction in deed as well as in wills.

Moreover, under the rules governing the construction of deeds, where the context is susceptible of two constructions, that which is more unfavorable to the grantor is accepted, and restrictions contained in such instruments are construed most strongly against the maker [Williams v. South Penn Oil Co.] 52 W. Va. 181 [43 S. E. 214, 60 L. R. A. 795], [Deer Creek Lumber Co. et al. v. Sheets et al.] 75 W. Va. 21 [83 S. E. 81]. In the case of Railway Company v. Honaker. 66 W. Va. 149 [66 S. E. 104, 27 L. R. A. (N.

S.) 388], the court held that when a deed contains a restraint upon alienation, hut is an attempted grant in fee, that conditions or restrictions absolutely restraining alienation when repugnant to the estate created, are void as against public policy.” The deed contains provisions in the habendum clause which, upon a casual consideration, might cause one to think that it was the intention of the grantor to provide only for a life estate and then by descent to limit it to the first taker. .Such would be true, were it not for the fact that later on in the deed is to be found a provision which clearly shows that, upon compliance on the part of the grantee with certain stipulations contained therein, he would immediately become invested with a fee-simple title to the premises in question.

In the case of Mauzy et al. v.

Mauzy et al., 79 Va. 537, wherein the principle involved in this controversy was passed upon, the court, among other things, said: “At common law, in case of repugnancy between the premises and the habendum iu deeds to natural persons, the latter gave way to the former; but as in this case the deed conveys the fee only by virtue of the statute (Code 1873, c. 112, § 8), which provides that when real estate is conveyed the entire interest of the grantor shall he construed to be conveyed, unless a contrary intention appears by the conveyance, the whole deed must he looked to, in order to ascertain and give effect to the intention of the parties. * * * Looking, then, to the whole deed and the surrounding circumstances, we think the conveyance was to Mrs.

Mauzy, absolutely and exclusively. * * * The consideration flowed from her alone, and, her husband being insolvent, the burden of maintaining the family'was cast upon her. The language of the habendum of the deed already quoted merely indicates the motive for the conveyance to her, which was to provide a home and a means of support for herself and children, free from the control of her husband, and secure from the claims of his creditors.” The following cases are in point: Higgins v. Round Bottom Coal Co., 63 W. Va. 218, 59 S. E. 1064; Morgan v. Morgan, 60 W. Va. 327, 55 S. E. 389, 9 Ann.

Cas. 943; Culpeper National Bank v. Wrenn, 115 Va. 55, 78 S. E. 620; Uhl v. Railroad Co., 51 W. Va. 106, 41 S. E. 340; Williams v. South Penn Oil Co., 52 W. Va. 181, 43 S. E. 214, 60 L. R. A. 795; Weekley v. Weekley, 75 W. Va. 281, 83 S. E. 1005. To hold that only a life estate was intended to be granted would be to ignore the plain provisions of the deed and the facts and circumstances surrounding its execution; in other words, to do this, we would be compelled to ignore the plain rules of construction applying to suits like the one at bar.

We have read and carefully considered the cases relied upon by appellants, but are of opinion that they do not apply to the suit at bar. Therefore we are impelled to the conclusion that the rulings of the court below are highly proper, and that the decree should be Affirmed.