Chapter 36. ESTATES IN PROPERTY.
Article 1. Creation of Estates Generally.
Revisers’ Note.—Sections of c. 71, Code 1923, not covered in this article are disposed of as follows: Sections 4, 14 and 15 are omitted as obsolete, but see §4, art. 3 of this chapter; §6 is transferred to §2, art. 8, c. 38; §17 is transferred to §1, art. 1, c. 43; §§21 to 24b(12) are covered by art. 2 of this chapter.
§1. Creation of Estates; Necessity of Deed or Will.—No estate of inheritance or freehold, or for a term of more than five years, in lands, or any other interest or term therein of any duration under which the whole or any part of the corpus of the estate may be taken, destroyed, or consumed, except for domestic use, shall be created or conveyed unless by deed or will.(Code 1849, c. 116, §1; Code 1860, c. 116, §1; Code 1868, c. 71, §1; Code 1923, c. 71, §1.)
Revisers’ Note.—The part of §1, c. 71, Code 1923, relating to gifts of personal property is transferred to §5 of this article. The phrase beginning with the words “or any other interest” and ending with the words “domestic use” is new. The fact that a lease for oil or gas or coal, or of the surface without impeachment for waste, if for a term of not more than five years, was unrecordable under the provisions of §§4 and 5, c. 71, Code 1923, was a menace to purchasers of land. See §§8 and 9, art. 1, c. 40. The word “created” is inserted in this section to make its application to the original creation of estates, as well as their conveyance, more plain. No change in the effect of the section is intended.
Committee’s Note.—The words “in lands” are restored to their original position after the word “years” near the beginning of the section.
§2. Power of Attorney to Execute Deed of Land; Necessity of Writing.—No power of attorney to execute a deed of land for another person shall be valid, unless it be in writing, signed by the person on whose behalf such deed is to be made.
Revisers’ Note.—This section is new. The common law requirement, that a power of attorney must be conferred by an instrument of equal dignity with the one to be executed by the attorney, made it necessary, before the enactment of c. 71, Acts 1921, that a power of attorney to execute a deed be under seal. Since, by the provisions of §1, art. 3 of this chapter, a deed of land no longer requires a seal, the power of attorney to execute such a deed should be sufficient, if in writing.
§3. Contracts for Sale or Lease of Land; Necessity of Writing.—No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence.(Code 1849, c. 143, §1; Code 1860, c. 143, §1; Code 1868, c. 98, §1; Code 1923, c. 98, §1.)
Revisers’ Note.—This section was formerly a part of §1, c. 98, Code 1923. It is removed to this article because of its relation to the subject matter thereof.
§4. Creation of Trusts in Lands; Necessity of Writing.—No declaration of trust of land shall be enforceable, unless it be made in writing, signed by the person who declares such trust or by his agent. If a conveyance of land, not fraudulent, is made to one in trust either for the grantor or a third person, such trust may be enforced, though it be not disclosed on the face of the conveyance, nor evidenced by a writing: Provided, however, That trusts arising by construction or operation of law shall not be subject to the provisions of this section.
Revisers’ Note.—This section is new. Our State has not had any express statutory requirement for the creation of trusts in land. The question has given rise to much litigation, and the position of our Supreme Court of Appeals seems to be that, in the case of a conveyance of land upon a parol trust, if the trust is for a third person, it is enforceable, but if it is for the grantor, it is unenforceable. The authorities are collected and discussed in 31 West Virginia Law Quarterly, 166. This revision modifies, in part, the rule of our Supreme Court of Appeals, and makes a parol trust in favor of a grantor in a conveyance enforceable. It is intended to clarify the law upon the whole subject of trusts in lands.
§5. Gifts of Personal Property.—No gift of any goods or chattels shall be valid unless made by writing, signed by the donor or his agent, or by will, or unless actual possession shall have come to and remained with the donee or some person holding for or under him. If the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be a sufficient possession within the meaning of this section. The requirements of this section shall not apply to the wife’s paraphernalia. No seal shall be necessary to give validity to a gift of goods or chattels by writing, as hereinbefore provided.(Code 1849, c. 116, §1; Code 1860, c. 116, §1; Code 1868, c. 71, §1; Code 1923, c. 71, §1.)
Revisers’ Note.—This section consists of the part of §1, c. 71, Code 1923, which related to gifts of personal property. The words “written instrument” are substituted for the word “deed.” By the provisions of §1, art. 3 of this chapter, a seal is no longer necessary to give validity to a conveyance of land. It would tend to confusion if a different and stricter requirement were retained for gifts of personal property than for conveyances of land. The last five words in the first sentence are substituted for the words “claiming under him.” It is thought that they express the same intent, somewhat more clearly. The next to the last sentence in this section is new. It is taken from §5142, Code Va. 1919. It does not seem wise that gifts of purely personal effects, such as clothes and jewelry, to a wife, should be rendered ineffective simply because the donor and the donee are members of the same household.
§6. Declarations of Trust in Personal Property; Necessity of Writing.—No declaration of trust of any personal property, without consideration, shall be valid unless it be in writing, signed by the person who creates such trust or by his agent. This section shall have no application to a conveyance of personal property to another person, in trust either for the person making such conveyance, or for a third person.
Revisers’ Note.—This section is new. It seems desirable to require the same formality for a declaration of trust, without consideration, in personal property, as for a gift. Where, however, the legal title to the property is passed either by delivery or writing, a trust attached to such transfer should not fail for want of a writing. The present revision is not intended to change, but only to clarify, the existing law upon the subject.
§7. Rights of Persons Not Parties to Instrument.—An immediate estate or interest in, or the benefit of a condition respecting any estate in, property may be taken by a person under an instrument, although he be not a party thereto.(Code 1849, c. 116, §2; Code 1860, c. 116, §2; Code 1923, c. 71, §2.)
Revisers’ Note.—This section was a part of §2, c. 71, Code 1923. The remainder of that section is removed to §12, art. 8, c. 55.
§8. Conveyance by Attorney in Fact.—If, in a deed of land, or a conveyance by writing of personal property, made by one as attorney in fact for another, the words of conveyance or the signature be in the name of the attorney, it shall be as much the principal’s deed or conveyance as if the words of conveyance or the signature were in the name of the principal by the attorney, if it be manifest on the face of the instrument that it should be construed to be that of the principal to give effect to its intent.(Code 1849, c. 116, §3; Code 1860, c. 116, §3; Code 1868, c. 71, §3; Code 1923, c. 71, §3.)
Revisers’ Note.—Section 3, c. 71, Code 1923, is extended to include conveyances of personal property made by written instrument.
§9. Conveyance of Various Interests and Future Estates in Land or Personal Property.—Any interest in or claim to real estate or personal property may be lawfully conveyed or devised. Any estate in such property may be made to commence in futuro, by conveyance inter vivos, in like manner as by will, and any estate which would be good as an executory devise or bequest, shall be good if created by conveyance inter vivos.(Code 1849, c. 116, §5; Code 1860, c. 116, §5; Code 1868, c. 71, §5; Code 1923, c. 71, §5.)
Revisers’ Note.—This section is made to include personal property. Since personal property may be conveyed by other methods than by deed or will, the more general expression, “conveyance,” is used.
§10. Operation of Conveyance in Excess of Actual Interest.—A deed which purports to convey a greater right or interest in real property than the person making it may lawfully convey shall operate as an alienation of such right or interest in such real property as such person might lawfully convey. The application of the doctrine of estoppel by deed, and the liability of the grantor, his heirs and personal representatives upon the covenants, if any, contained in such conveyance shall be determined according to the rules of law applicable to other deeds.(Code 1849, c. 116, §7; Code 1860, c. 116, §7; Code 1868, c. 71, §7; Code 1923, c. 71, §7.)
Revisers’ Note.—The second sentence is not intended to effect any change in the existing law, but to remove any doubt as to the effect of the first sentence upon the matters mentioned in the second sentence.
§11. Fee Simple May be Created Without Words of Limitation.—When any real property is conveyed or devised to any person, and no words of limitation are used in the conveyance or devise, such conveyance or devise shall be construed to pass the fee simple, or the whole estate or interest, legal or equitable, which the testator or grantor had power to dispose of, in such real property, unless a contrary intention shall appear in the conveyance or will.(Code 1849, c. 116, §8; Code 1860, c. 116, §8; Code 1868, c. 71, §8; Code 1923, c. 71, §8.)
Revisers’ Note.—The word “granted” which appeared after the word “devised” in the first sentence of §8, c. 71, Code 1923, is omitted, since the word “conveyed,” which appeared in the same sentence, is sufficiently broad to include a grant. The omission of the word “grant,” which appeared twice in the section, is for the same reason. No change in meaning is intended.
§12. Estates Tail.—Every estate in lands so limited that, as the law was on the seventh day of October, in the year seventeen hundred and seventy-six, in the State of Virginia, such estate would have been an estate tail, shall, except as provided in section fourteen of this article, be deemed an estate in fee simple, and every limitation upon such an estate shall be held valid, if the same would be valid when limited upon an estate in fee simple.(Code 1849, c. 116, §9; Code 1860, c. 116, §9; Code 1868, c. 71, §9; Code 1923, c. 71, §9.)
Revisers’ Note.—The words “created by technical language,” which appeared at the end of §9, c. 71, Code 1923, are omitted. Technical language is not necessary to the creation of an estate in fee simple, therefore the words omitted seem to be obsolete. The words “except as provided in section fourteen of this article” are inserted to make it plain that a conveyance “to A for life, and then to the heirs of his body,” though it would have given A an estate tail in the year seventeen hundred and seventy-six, by virtue of the rule in Shelley’s case, is nevertheless intended to be covered by §14 of this article.
§13. Limitations Contingent Upon Death.—Every limitation in any conveyance or will disposing of real or personal property, contingent upon the dying of any person without heirs, or heirs of the body, or issue of the body, or children, or offspring, or descendant, or other relative, shall be construed as a limitation, to take effect when such person shall die, not having such heir, or issue, or child, or offspring, or descendant, or other relative, as the case may be, living at the time of his death, or en ventre sa mere at the time of his death and born alive thereafter, unless the intention of such limitation be otherwise plainly declared on the face of the conveyance or will creating it.(Code 1849, c. 116, §10; Code 1860, c. 116, §10; Code 1868, c. 71, §10; Code 1923, c. 71, §10.)
Revisers’ Note.—This section differs from §10, c. 71, Code 1923, in two particulars: (a) It includes personal property within its provisions. This verbal change is made merely for the sake of uniformity and does not change the existing common law rule with reference to personal property; (b) The former provision with reference to posthumous children, limiting the possibility of their birth to ten months after the death of the ancestor, is not in accord with scientific opinion. It is thought that no definite period should be fixed.
§14. Rule in Shelley’s Case Abolished.—Wherever any person, by conveyance inter vivos or by will, takes an estate of freehold in land, or takes such an estate in personal property as would be an estate of freehold, if it were an estate in land, and in the same conveyance or will an estate is afterward limited by way of remainder, either mediately or immediately to his heirs, or the heirs of his body, or his issue, the words “heirs,” “heirs of the body,” or “issue” or other words of like import used in the conveyance or will, in the limitation therein by way of remainder, shall not be construed as words of limitation carrying to such person the inheritance as to the land, or the absolute estate as to the personal property, but they shall be construed as words of purchase, creating a remainder in the heirs, heirs of the body, or issue; it being the intent and purpose of this section to completely abolish the rule of law known as the Rule in Shelley’s Case.(Code 1849, c. 116, §11; Code 1860, c. 116, §11; Code 1868, c. 71, §11; Code 1923, c. 71, §11.)
Revisers’ Note.—This modification of §11, c. 71, Code 1923, except the part following the last semicolon, is taken from §5152, Code Va. 1919. The words “mediately or immediately,” are inserted to meet the construction placed upon said §11 in the case of Carter v. Reserve Gas Co., 84 W. Va. 741.
§15. Contingent Remainder; Validity; Indestructibility.—A contingent remainder shall in no case fail for want of a particular estate to support it, nor because of the termination of a preceding particular estate by merger, forfeiture, or in any other manner, before the contingent remainder shall have been vested. It is the intent and purpose of this section to abolish the common law doctrine of the destructibility of contingent remainders.(Code 1849, c. 116, §§12, 13; Code 1860, c. 116, §§12, 13; Code 1868, c. 71, §§12, 13; Code 1923, c. 71, §§12, 13.)
Revisers’ Note.—This section is a modification of §§12 and 13, c. 71, Code 1923. It does not change the meaning of those sections, but states more directly their purpose.
§16. Interest in Property Coupled With a Power Of Disposal.—If any interest in or claim to real or personal property be given by sale or gift inter vivos or by will to one, with a limitation over either by way of remainder or of executory devise or any other limitation, and by the same conveyance or will there be conferred, expressly or by implication, a power upon the first taker in his lifetime or by will to use or dispose absolutely of such property, the limitation over shall not fail or be defeated except to the extent that the first taker shall have lawfully exercised such power of disposal. The proceeds of a disposal under such power shall be held subject to the same limitations and the same power of use or disposal as the original property, unless a contrary intent shall appear from the conveyance or will: Provided, however, That a trust deed or mortgage executed by such first taker shall not be construed to be an absolute disposal of the estate thereby conveyed unless there be a sale thereunder, but shall be effective only to the extent of the lien or encumbrance created by such trust deed or mortgage.
Revisers’ Note.—This section is new. A similar provision appears in the second paragraph of §5147, Code Va. 1919. The principal difference between the above section and the paragraph of the Va. Code is that the provision of the Va. Code applies only to cases of estates for life with the remainder over. It would seem that the same provision should be made in cases of gifts of more durable interests than life estates where there is a remainder or a limitation over upon a contingency. The provision with reference to the proceeds is not included in the Va. statute, but seems to afford a reasonable working rule, in the absence of any contrary intent.
§17. Uses and Trusts; Passing of Legal Title.—Whenever, by reason of any conveyance by written instrument or by will, the bare legal title to real or personal property is held by one person for the use or benefit of, or in trust for, another person mentioned or described in the instrument or will, and the holder of such legal title has no active duties of care or management or disposition of the property by reason of such trust, or has performed all such duties as were imposed upon him, the legal title to the same estate or interest which he had in the use of such property shall pass to and be legally deemed to be in the person for whose use or benefit, or in trust for whom, the legal title to the property was so held.
Revisers’ Note.—This section is new. The English Statute of Uses, 27 Hen. VIII, c. 10, (1536) automatically converted use estates in land into legal titles, where the holder of the legal title had no active duties to perform. Section 14, c. 71, Code 1923, had the same purpose, but did not apply to cases where the use or trust was created by will, or where a “use upon a use” was created by deed of bargain or sale. See Blake v. O’Neil, 63 W. Va. 483, 61 S. E. 410. The present section is intended to cover every case where the bare legal title is separated from the beneficial ownership. See §14, c. 71, Code 1923.
§18. Trust Estates; Debts of Beneficiaries; Spendthrift Trusts.—Estates of every kind in real or personal property, holden or possessed in trust, shall be subject to the debts and charges of the persons to whose use or for whose benefit they are holden or possessed, as they would be if those persons owned the like interest in the things holden or possessed, as in the uses or trusts thereof; but where the creator of the trust has expressly so provided in the instrument or conveyance creating the trust, real or personal property may be held in trust upon condition that the income therefrom shall be applied by the trustee to the support and maintenance of a beneficiary or beneficiaries of the trust in being at the time of the creation of the trust, other than the creator of the trust, for the life of such beneficiary or beneficiaries, without being subject to the liabilities of, or alienation by, such beneficiary or beneficiaries.(Code 1849, c. 116, §16; Code 1860, c. 116, §16; Code 1868, c. 71, §16; Code 1923, c. 71, §16.)
Revisers’ Note.—The part of this section following the semicolon is new. The decisions of our court permit the creation of “spendthrift trusts” in equitable life estates. See Guernsey v. Lazear, 51 W. Va. 328; Hoffman v. Beltzhoover, 71 W. Va. 72; Kerns v. Carr, 82 W. Va. 78; Bruceton v. Alexander, 83 W. Va. 573. This revision, therefore, represents no change in the law in this regard. The limitation of one hundred thousand dollars is taken from §5157, Code Va. 1919. It is thought to be in accord with sound public policy, since the income from this amount of property should furnish a fair living for the intended beneficiary.
Committee’s Note.—The limitation of one hundred thousand dollars which the revisers placed upon spendthrift trusts is omitted.
§19. Joint Tenancy; Tenancy by Entireties; Survivorship.—When any joint tenant or tenant by the entireties of an interest in real or personal property, whether such interest be a present interest, or by way of reversion or remainder or other future interest, shall die, his share shall descend or be disposed of as if he had been a tenant in common.(Code 1849, c. 116, §18; Code 1860, c. 116, §18; Code 1868, c. 71, §18; Code 1923, c. 71, §18.)
Revisers’ Note.—This section is a shorter and more direct statement but having the same effect as §18, c. 71, Code 1923.
Committee’s Note.—The word “inheritable” which formerly preceded “interests” in the second line of this section as drafted by the revisers, is omitted.
§20. When Survivorship Preserved.—The preceding section shall not apply to any estate which joint tenants have as executors or trustees, nor to an estate conveyed or devised to persons in their own right, when it manifestly appears from the tenor of the instrument that it was intended that the part of the one dying should then belong to the others. Neither shall it affect the mode of proceeding on any joint judgment or decree in favor of, or on any contract with, two or more, one of whom dies.(Code 1849, c. 116, §19; Code 1860, c. 116, §19; Code 1868, c. 71, §19; Code 1923, c. 71, §19.)
§21. Alien May Own Land.—Any alien may take by devise, inheritance, gift or purchase, and hold, convey, devise or otherwise dispose of land within this State as if he were a citizen, and if an alien owner of land within this State shall die, his land shall descend in the same manner as if he were a citizen.(Code 1849, c. 115, §§1, 2; Code 1860, c. 115, §§1, 2; Code 1868, c. 70, §§1, 2; 1872, c. 48; 1882, c. 56; Code 1923, c. 70, §§1, 2.)
Revisers’ Note.—The words “not an enemy,” which appeared in §1, c. 70, Code 1923, are apparently unconstitutional, as in conflict with §5, art. 2, Const. These words, therefore, are omitted. In other respects this section has the same effect, in somewhat briefer form, as c. 70, Code 1923.
Article 2. Disposition of Estates Subject to Future Interests.
§1. Sale or Lease of Real or Personal Property Subject to Future Interests.—Whenever there is, either at law or in equity, in any personal property, or in any land, timber, oil, gas, coal, or other minerals, any contingent remainder, or any vested remainder, which is liable to open and let in afterborn children or to open and let in members of any class, or any executory interest, or executory devise, or any base, qualified, conditional or limited fee, or any other qualified, conditional, limited or determinable estate, or interest, it shall be lawful for the circuit court of the county in which the personal property, land, timber, oil, gas, coal, or other minerals, or any part thereof, are situate, upon a bill filed by any of the persons specified in section two of this article, to decree a sale, lease, mining lease, or other conveyance of such personal property, land, timber, oil, gas, coal, or other minerals, or any one or more of them, or of any interest in them, as hereinafter provided.[1911, c. 17, §1; Code 1923, c. 71, §24b(1).]
Revisers’ Note.—Section 24b(1), c. 71, Code 1923, did not apply to personal property, and probably did not apply to some interests in land, such as timber. In the opinion of the revisers, the same policy with reference to their being freely alienable is applicable to both land and chattels, and to all parts of the land.
§2. Persons Who May File Bill.—Such bill may be filed by any person having any interest hereinafter mentioned in this section, in the personal property, land, timber, oil, gas, coal, or other minerals sought to be sold, leased or otherwise conveyed:
(a) Any person who alone or with others has, either at law or in equity, any vested freehold estate, whether in possession, remainder or otherwise;
(b) Any person in whom alone or with others a contingent remainder would vest, either at law or in equity, if the contingency or event upon which the remainder is to vest, or determining who the remainderman or remaindermen are, should happen at the time of the commencement of the suit;
(c) Any one or more of the remaindermen in being at the time of commencement of the suit, when there is, either at law or in equity, a vested remainder liable to open and let in afterborn children, or to open and let in members of any class;
(d) Any person who alone or with others has, either at law or in equity, a base, qualified, conditional or limited fee, or any other qualified, limited or determinable freehold estate, or any freehold estate which is subject or liable to be terminated or defeated by the vesting of any executory interest or executory devise or by the happening or non-happening of any condition, limitation or event, or to whom an executory interest or executory devise of a freehold estate, not following an estate in fee simple, is granted or devised;
(e) Any trustee whose estate or interest is such that he might have filed such bill had he held such estate or interest in his own right; and also any beneficiary of any such trust. Any beneficiary of any such trust whose estate or interest is such that he might have filed such bill, if such estate or interest were a legal estate or interest; and also the trustee of any such trust;
(f) Any purchaser or assignee, at law or in equity, from any person of any estate or interest which would entitle such latter person to file such bill had he not sold or assigned such estate or interest;
(g) A married woman, as if she were feme sole, if otherwise entitled to file such bill;
(h) The guardian of any infant, or the committee of any insane person or convict, if such infant or insane person or convict would, but for such infancy, insanity or conviction, be entitled to file such bill.[1911, c. 17, §2; Code 1923, c. 71, §24b(2).]
Revisers’ Note.—See revisers’ note to §1 of this article. Section 24b(2) (d), c. 71, Code 1923, also included persons “to whom an executory interest or executory devise of a freehold estate is granted or devised.” This provision is modified so as to limit its application to such an interest where it does not follow an estate in fee simple. Such an interest usually occurs after a vested estate in fee simple. The consent of the owner of the fee would have to be secured, and, if he desires to convey, he would be the logical person to file the bill. See §10, art. 2, c. 2, for definition of “convict.”
§3. Parties to Such Suit.—All persons in being who have any vested, contingent, or executory estate or interest, either at law or in equity, in such personal property, land, timber, oil, gas, coal, or other minerals to be sold, leased, or otherwise conveyed, shall be made parties even though any of such persons should be infant, insane, or convict, and if any such person shall be an infant, having a guardian, such guardian shall also be made a party, and if any such person shall be an insane person or convict as aforesaid, having a regularly appointed committee, such committee shall be made a party; and when the bill is filed by the guardian of such infant, or the committee of such insane person or convict, such infant or insane person or convict shall also be made defendant: Provided, however, That the joinder of any person having only a contingent or executory estate or interest may be dispensed with where the person not joined is virtually represented by any other party or parties to the suit; and where such virtual representation exists no order or decree or sale or lease made thereunder shall be deemed erroneous or void because of such nonjoinder.[1911, c. 17, §3; Code 1923, c. 71, §24b(3).]
Revisers’ Note.—See revisers’ note to §1 of this article. The word “executory” is substituted for the word “expectant” which appeared in §24b(3), c. 71, Code 1923, since the ordinary meaning of the word “expectant” makes it apply to the interest of an heir apparent or a devisee named in the will of a testator still living. It was probably not the intent of the legislature to make such a person a necessary or proper party to the bill. The provisions with reference to infants, insane persons and convicts are broadened.
§4. Order of Publication.—An order of publication may be entered and summons may be served against nonresident defendants in like manner and with like force and effect as in other cases, and where it is stated in the bill and affidavit is made of the fact that there are interested persons whose names are unknown, or of the fact that it is not known whether there are any other persons interested, such persons, if any, may be made parties defendant by the general description of parties unknown, and an order of publication may be entered and proceedings had as in other cases of parties unknown.[1911, c. 17, §4; Code 1923, c. 71, §24b(4).]
Revisers’ Note.—The last two sentences of §24b (4), c. 71, Code 1923, are consolidated in order to save space. No change in meaning is intended.
§5. Guardian ad Litem.—When a defendant in any suit brought under the provisions of this article is an infant or insane person, a guardian ad litem shall be appointed as provided by section ten, article four, chapter fifty-six of this Code, and shall be governed by the provisions of said section, and when a defendant is a convict, a guardian ad litem shall be appointed by the court, who shall have the same rights and duties as those of a guardian ad litem for an infant or insane person: Provided, That no guardian ad litem need be appointed for parties unknown, though they be infant, insane or convict.[1911, c. 17, §5; Code 1923, c. 71, §24b(5).]
Revisers’ Note.—A provision is inserted for the appointment of a guardian ad litem for a convict.
§6. Contents of Bill.—The bill shall describe the property sought to be sold or leased with reasonable certainty, and set forth the names of all persons interested in such property, together with their respective estates or interests, either vested, contingent or executory, so far as is known by the plaintiff. The bill shall also set forth the facts which, in the opinion of the plaintiff, would justify the sale or lease. The bill shall be verified by the oath of the plaintiff or one of the plaintiffs.[1911, c. 17, §6; Code 1923, c. 71, §24b(6).]
Revisers’ Note.—See the second paragraph of the revisers’ note to §3 of this article.
§7. Evidence.—Evidence may be taken as in other suits in chancery, or the court may hear the evidence in open court. If heard in open court, the court may, and on the motion of any party shall, require the evidence to be taken down in shorthand by a stenographer, and transcribed, and certify such evidence and make the same part of the record in the cause, in the same manner and within the same time as bills of exceptions are now certified and made part of the record: Provided, however, That no exceptions need be taken to any ruling of the court.[1911, c. 17, §7; Code 1923, c. 71, §24b(7).]
§8. When Sale or Lease May be Made.—If it be clearly shown by the pleadings and proof that the interest of the person filing such bill will be promoted by the sale, lease or other conveyance of the property, and the court shall be of the opinion that the interests of no other person or persons in the property will be materially injured or prejudiced by such sale, lease, or other conveyance, the court may, with the consent of all persons in being having any vested estate or vested interest in such property, except in certain cases provided for in section nine of this article, in which case such consent shall not be necessary, decree the sale, lease, or mining lease of such property, or of any interest in such property, in such manner and on such terms, and in such parcels, as may be deemed beneficial to all persons interested: Provided, That where any party having a vested estate or vested interest is an infant, or insane, or convict, the guardian of such infant, whether testamentary or appointed by a county court or the clerk thereof, or the committee of such insane person or convict, may consent for such infant or insane person or convict, as the case may be; and any married woman having an interest in the property may consent without the consent of her husband: Provided further, That the consent of no person having a merely contingent or executory estate or interest shall be necessary in order to enable the court to decree such sale, even though such person having such contingent or executory estate or interest is a necessary party to such suit: And provided further, That the consent of no holder of any lien or encumbrance created since the twenty-second day of May, nineteen hundred and eleven, shall be necessary to any sale, lease, mining lease, or other conveyance made under the provisions of this article: And provided further, That if any person in being having any vested interest in such property shall not consent to such sale, lease, mining lease or other conveyance, the court may nevertheless decree such sale, lease, mining lease or other conveyance, to be made subject to the interest of such person in being so refusing to consent.[1911, c. 17, §8; Code 1923, c. 71, §24b(8).]
Revisers’ Note.—The part of §24b(8), c. 71, Code 1923, relating to gas, oil or other volatile or fugitive substance, is placed in the next following section. The part of this section relating to contingent and executory interests is inserted to put at rest the question raised by the court in the case of Brown v. Brown, 83 W. Va. 415, as to what the legislature meant by the word “vested” as used in this section. If the consent of every person having a contingent or executory estate or interest were necessary to a sale under this article, the purpose of the enactment would, to a large extent, be defeated. The last provision of the section, relating to cases of refusal to consent, is new. It should prove useful in cases where a tenant for years, for example, refuses to consent to a sale.
§9. Sale or Lease of Timber, Oil, Gas, Coal, or Other Minerals.—If the property sought to be sold or leased under the provisions of this article is gas, oil, or other volatile or fugitive substance, and it shall clearly appear that such substance is being, or in danger of being, withdrawn or drained away through other lands and so wasted and lost, to the injury of any person who has any interest in such substance; or if the property to be sold or leased is timber, and it shall clearly appear that such timber is ripe and will decay or deteriorate if not cut within a short time, or that, because of the fact that the timber upon neighboring lands is being cut or is about to be cut, and that, if the timber sought to be conveyed is not cut at the same time as, or in connection with, the timber upon such neighboring lands, it will be difficult and less profitable to sell or convey it at any other time, and that, on account of these circumstances, such timber will probably deteriorate in value unless it is sold or leased immediately; or if the property to be sold or leased is coal, or other mineral of fixed location, and it shall clearly appear that, because of the fact that the coal or other mineral under the surrounding or adjoining lands is being mined or is about to be mined, and that if the coal or other mineral sought to be sold or leased is not mined or produced at the same time as, or in connection with, the coal or other mineral under the surrounding lands, it will be difficult and less profitable to mine or produce it at any other time, and that on account of these circumstances such coal or other mineral will probably deteriorate in value unless it is sold or leased immediately; then, although any person in being having a vested estate or vested interest in such oil, gas, or other volatile or fugitive substance, or in the lands in which the same are contained, or in such timber, coal, or other minerals, does not consent as aforesaid, the court may decree the sale or lease of such property, notwithstanding the provisions of the preceding section of this article: Provided, That no conveyance or lease of the timber, oil, gas, coal, or other minerals mentioned in this section, made by an owner in fee simple absolute, before the creation of the estates mentioned in section one of this article, shall be divested by any proceeding under this article: Provided further, That the consent of no holder of any lien or encumbrance created since the twenty-second day of May, nineteen hundred and eleven, shall be necessary to any sale, lease, or mining lease, or any decree therefor under this article.[1911, c. 17, §8; Code 1923, c. 71, §24b(8).]
Revisers’ Note.—See paragraph 1 of the revisers’ note to the preceding section for the disposition of the first part of §24b(8), c. 71, Code 1923. This section is broadened to permit a sale or lease of timber, coal, and other minerals under certain circumstances without the consent of interested parties. The same public policy which would make the former legislation with reference to oil and gas constitutional would seem to apply also to timber and coal under the circumstances mentioned in this section. In Brown v. Brown, 83 W. Va. 415, at p. 424, it is intimated that, if the land is likely to depreciate in value, it might be sold, even without the consent of a person having a vested interest in it. See 26 W. Va. Law Quarterly 213. See also Williamson v. Jones, 43 W. Va. 562 at p. 570, where the court mentions the jurisdiction of equity to direct that timber in a state of decay “be cut down for the benefit of those entitled to the inheritance.”
§10. Execution of Decree by Commissioner.—If such sale, lease, mining lease or other conveyance shall be decreed, the court shall appoint a special commissioner or special commissioners to make the same. The special commissioner or commissioners before making any such sale, lease, mining lease or other conveyance, shall in open court enter into bond, with approved security in such penalty as the court shall prescribe, conditioned for the faithful application of the proceeds of the sale, lease or mining lease, which may come into his or their hands, which bond shall be payable to the State, and the court may thereafter order a new or additional bond, with other security, to be given, if deemed necessary. Such sale, lease, mining lease or other conveyance may be decreed to be made upon such terms as the court shall direct, and at either public or private sale or leasing, and shall be subject to confirmation by the court and be reported for such confirmation. If any such sale be made on credit, a lien shall be retained on the property sold and such other security as the court may direct shall be taken to secure the deferred purchase money.[1911, c. 17, §9; Code 1923, c. 71, §24b(9).]
§11. Title of Purchaser.—Where a sale, lease, mining lease or other conveyance is decreed under the provisions of this article, the title of the purchaser to such interest as was decreed to be conveyed to him shall be indefeasible by any party to the suit, or by any person who was virtually represented according to the provisions of section three of this article by any party to the suit, or by any person who was not in being at the time the suit was commenced. And if a sale, lease, mining lease or other conveyance made under such a decree shall be confirmed, although such decree be afterwards reversed or set aside, the title of the purchaser or lessee shall not be affected thereby; but all subsequent orders and decrees shall affect only the proceeds of sale, or the reversion subject to such lease, or mining lease, together with the proceeds, rents and royalties of the lease or mining lease. All sales, leases and mining leases shall be free and acquit of all liens and encumbrances created since the twenty-second day of May, nineteen hundred and eleven, and inchoate dower, held by any party to the suit; but such liens and encumbrances, and consummate dower, when it shall vest, shall attach to the estate or interest of any person in the proceeds of sale, or in the reversion subject to any such lease or mining lease, or other conveyance, together with the proceeds, rents and royalties accruing from such lease or mining lease, to the same extent that such liens, encumbrances and dower attached or would have attached to his estate or interest in the property if no sale, lease or mining lease had been made. And after the confirmation of any such sale, lease or mining lease, the court, with or without an order of reference, may ascertain and fix the priority of any such liens and encumbrances, and assign consummate dower when the same shall vest.[1911, c. 17, §10; Code 1923, c. 71, §24b(10).]
Revisers’ Note.—Section 24b(10), c. 71, Code 1923, seemed to make the sale binding upon any person interested who did not have a vested interest, even though such person was not a party to the suit, nor virtually represented in it. In this revision, that provision is changed, and the sale is made binding only on those who are parties to the suit, or are represented in it. Reference to curtesy is omitted since curtesy is abolished in this revision. See c. 43.
§12. Disposition of Proceeds.—The proceeds of sale, and the reversion subject to any such lease or mining lease, together with the proceeds, rents, and royalties accruing from any such lease or mining lease, shall, in all respects, be substituted for and stand in the place of the property sold or leased as regards the ownership and enjoyment thereof, and all persons shall have the same estates or interests, vested, contingent, or executory, in such proceeds of sale, or in the reversion subject to any such lease or mining lease, together with the proceeds, rents and royalties accruing from any such lease or mining lease, as they had or would have had in the property sold or leased. And the proceeds of sale shall be invested and the proceeds, rentals and royalties accruing from such lease or mining lease shall be invested or applied, and the principal and income of any such investment shall be applied under the direction of the court, for the use and benefit of the persons having any such estate or interest, vested, contingent or executory, in accordance with, and to the extent to which they are entitled by virtue of, their respective estates and interests, vested, contingent or executory. From any one in whose hands the proceeds of sale, or the proceeds, rents and royalties accruing from any such lease or mining lease shall be placed or come, the court shall take ample security, and from time to time require additional security, if necessary; and the court shall make all proper orders and decrees for the faithful application of the funds and for the management and preservation of any property or securities in which the same may be invested, for the protection of the rights of all persons having any estate or interest, whether vested, contingent or executory.[1911, c. 17, §11; Code 1923, c. 71, §24b(11).]
Revisers’ Note.—The word “executory” is substituted for the word “expectant,” used in §24b(11), c. 71, Code 1923, for the reason given in paragraph two of the revisers’ note to §3 of this article.
§13. Remedies Herein Provided Cumulative.—This article and the rights and remedies herein provided for shall be cumulative and in addition to other existing rights.[1911, c. 17, §12; Code 1923, c. 71, §24b(12).]
Article 3. Form and Effect of Deeds.
Revisers’ Note.—The following disposition is made of sections in c. 72, Code 1923, not included in this article: Section 2 is omitted, being a duplication of i §11, art. 1 of this chapter; §§5, 6, 6a, 7 and 8 are transferred to art. 1, c. 38; §§12-24, both inch, are covered in art. 4 of this chapter; §§25 and 27 are omitted as unnecessary.
§1. Seal Not Necessary in Conveyances of Land.—The affixing of a seal, or any symbol or word intended to have the effect of a seal, shall not be necessary to give validity to any deed, trust deed, mortgage, or other conveyance of an estate of inheritance or freehold in land, or any estate of any duration therein.(1921, c. 71, §2; Code 1923, c. 72, §26.)
Revisers’ Note.—Section 2, c. 71, Acts 1921 (§26, c. 72, Code 1923), limited the effect of that act to natural persons, thus excluding corporations. Since the law is that a corporation “may contract and be contracted with, by simple contract or specialty” (§3, art. 1, c. 31), it would seem that corporations and natural persons should be placed upon the same ground, with reference to their conveyances. Said §2, Acts 1921, mentioned bonds and writings “agreeing to sell,” etc., real estate. Since such writings were not required, before the Acts of 1921, to be sealed, the inclusion of such writings in the act has caused some confusion, for example, by apparently broadening the scope of the action of covenant (See Acts 1921, c. 71, §3, Code 1923, c. 72, §27) to include unsealed agreements to convey, and leases for less than five years, upon which the action of covenant could not have been maintained, before the Acts of 1921, if they had been unsealed. Such a result was probably not intended by the legislature, and is avoided by this revision. The residue of §26, c. 72, Code 1923, is covered in §3 of this article.
§2. Covenant on Unsealed Conveyances or Contracts.—An action of covenant may be maintained on any written conveyance or lease which, under the provisions of section one, article one of this chapter, must be by deed, and which has been executed since the twenty-sixth day of July, nineteen hundred and twenty-one, for the breach of any covenant or warranty or other agreement therein contained, whether such instrument be sealed or unsealed, and every estoppel which would have been created by such writing, if sealed, shall be created by it, though it be unsealed. Such action of covenant may also be maintained upon any contract or agreement for the conveyance of any interest in land, which interest, if conveyed, would be required, by said section one, article one of this chapter, to be conveyed by deed.(1921, c. 71, §4; Code 1923, c. 72, §28.)
Revisers’ Note.—See the second paragraph of revisers’ note to the preceding section.
§3. Other Effects of Seal.—The affixing of a seal, or any symbol or word intended to have the effect of a seal, to any instrument conveying or agreeing to convey land, or any interest whatever in land, shall not give to such instrument any additional force or effect, either by way of importing a consideration or in any other manner whatsoever, either at law, or in equity, than such instrument would have if it were unsealed.(1921, c. 71, §2; Code 1923, c. 72, §26.)
Revisers’ Note.—Under c. 71, Acts 1921, (§§25-28, c. 72, Code 1923), there was doubt as to whether or not a writing agreeing to convey lands, made after that act took effect, would import a consideration, as it would have done, if sealed, before the passage of that act. This section of the revision is intended to clarify the situation by expressly providing that the seal shall give no greater effect to the instrument than it would have if unsealed. The residue of §26, c. 72, Code 1923, is covered in §1 of this article.
§4. Distinctions Between Various Kinds of Deeds Abolished.—All distinctions in legal effect between deeds of grant, deeds of bargain and sale, deeds of lease and release, and deeds of covenant to stand seized, are hereby abolished. Any instrument which shows on its face a present intent to pass the title to, or any interest, present or future, in, real property, shall, if properly executed and delivered, be given effect according to its manifest intent. No instrument purporting to convey land, or any interest therein, shall fail of effect merely for lack of conformity with the language of sections five, six, seven, eight or nine of this article.
Revisers’ Note.—This section is new. Sections 4, 14 and 15, c. 71, Code 1923, all of which sections were contained in c. 116, Code Va. 1849, and have remained in our statutes since that time, gave the same practical effect to all the various kinds of written conveyances mentioned in those sections. It now seems desirable to expressly abolish these historical distinctions and §§4, 14 and 15, c. 71, Code 1923, are omitted from this revision. The last sentence of this section fulfills the purpose of the first sentence of §11, c. 72, Code 1923. The substance of the second sentence of that section appears in §1, art. 11, c. 37.
§5. Form of Deed.—A deed may be made in the following form, or to the same effect:
(Code 1849, c. 117, §1; Code 1860, c. 117, §1; Code 1868, c. 72, §1; Code 1923, c. 72, §1.)
Revisers’ Note.—Section 1 of this article makes a seal unnecessary to the validity of a deed of land, and §5, art. 1 of this chapter provides that a gift of chattels may be made by writing, without a seal, hence the seal is omitted from the form of deed given in this section. Section 6 of this article provides that the recital of a consideration shall not be necessary to give validity to a deed of land. However, the statement of the consideration, if the parties desire to do so, should be encouraged, therefore the form of deed is not changed in that respect.
§6. Necessity of Consideration in Deed of Real Property.—If a deed of real property is in other respects valid, it shall not fail for want of a payment of consideration, or the recital of a consideration in the deed. No resulting or other trust in favor of the grantor in such deed shall arise from the mere fact that no consideration was paid or recited, if no trust was in fact intended. The foregoing provisions of this section shall not affect in any manner the right of any party to the deed, or any other person, to have such conveyance set aside for fraud, or because of any other circumstance which would render such conveyance invalid as to such person.
Revisers’ Note.—This section is new. Since the purely historical distinction between deeds of grant, and deeds taking effect by way of use, is abolished by §4 of this article, no deed should be allowed to fail because of the lack of the formality of the payment or recital of a consideration. Any substantive rights of the parties arising out of the failure to pay a consideration agreed upon are preserved by the last sentence of this section.
§7. Effect of Words of Release in a Deed.—Whenever, in any deed, there shall be used the words “The said grantor releases to the said grantee all his claims upon the said lands,” or words of like import, such deed shall be construed as if it set forth that the grantor or releasor hath remised, released, and forever quitted claim and by these presents doth remise, release, and forever quit claim unto the grantee or releasee, his heirs and assigns, all right, title and interest whatsoever, both at law and in equity, in or to the lands and premises granted or released, or intended so to be.(Code 1849, c. 117, §3; Code 1860, c. 117, §3; Code 1868, c. 72, §3; Code 1923, c. 72, §3.)
Revisers’ Note.—Section 3, c. 72, Code 1923, seemed to apply only to cases where the exact words of the statute were used in the release. To give effect to the obvious purpose of the statute, the expression “or words of like import” is inserted. The last three lines of §3, c. 72, Code 1923, are omitted. They apparently gave to a release a much broader effect by way of estoppel against the releasor and those claiming under him, than is usually intended by a deed of release. Even a deed of bargain and sale, without warranty, has no such effect by way of estoppel as was given to a deed of release by said §3. Western Co. v. Peytona Co., 8 W. Va. 406. Since the statutes do not attempt to determine the effect, by way of estoppel, of other kinds of deeds, the same rule should apply to deeds of release.
§8. Form of Lease.—A deed of lease may be made in the following form or to the same effect:
(Code 1849, c. 117, §4; Code 1860, c. 117, §4; Code 1868, c. 72, §4; Code 1923, c. 72, §4.)
Revisers’ Note.—See the first paragraph of the revisers’ note to §5 of this article. A place is indicated in the form for the insertion of covenants, conditions, and other provisions, since they are frequently found in a lease.
§9. Form of Deed by Sheriff or Special Commissioner.—The deed of a sheriff or special commissioner for real estate sold under the decree, judgment or order of a court may be made in the following form, or to the same effect:
(Code 1868, c. 72, §9; 1882, c. 140, §9; Code 1923, c. 72, §9.)
Revisers’ Note.—The word “seal” and the symbol “[L. S.]” are omitted from this section for the reason given in the first paragraph of the revisers’ note to §5 of this article.
§10. Deeds to Include Buildings, Privileges and Appurtenances.—Every deed conveying land shall, unless an exception be made therein, be construed to include all buildings, privileges, and appurtenances of every kind belonging to the lands therein embraced.(Code 1849, c. 117, §7; Code 1860, c. 117, §7; Code 1868, c. 72, §10; Code 1923, c. 72, §10.)
Article 4. Covenants.
Revisers’ Note.—The remainder of c. 72, Code 1923 is disposed of in art. 3 of this chapter. See the revisers note at the beginning of said art. 3. --- RIGHT COLUMN --ERTY.—Covenants. 946
§1. Effect of Covenant in a Deed.—When the words “the said .......... .......... covenants,” are used in a deed, such covenant shall have the same effect as if it was expressed to be by the covenantor, for himself, his heirs, personal representatives and assigns, and shall be deemed to be with the covenantee, his heirs, personal representatives and assigns.(Code 1849, c. 117, §9; Code 1860, c. 117, §9; Code 1868, c. 72, §12; Code 1923, c. 72, §12.)
§2. General Warranty.—A covenant by a grantor in a deed, “that he will warrant generally the property hereby conveyed,” or a covenant of like import, or the use of the words “with general warranty” in a deed, shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of all persons whomsoever.(Code 1849, c. 117, §§10, 12; Code 1860, c. 117, §10; Code 1868, c. 72, §§13, 15; Code 1923, c. 72, §§13, 15.)
Revisers’ Note.—The first sentence of §15, c. 72, Code 1923, relating to the words, “with general warranty,” is, in substance, placed in this section. In said §15 the effect of these words was limited to cases where they occurred in the “granting part” of a deed. The words would doubtless be intended to have the same effect, though used elsewhere in the deed. The rest of said §15 is in the following section. The words “or a covenant of like import” are inserted in this section, because other combinations of words of similar meaning might well be found in a deed, which should be given the same legal effect.
§3. Special Warranty.—A covenant by a grantor in a deed “that he will warrant specially the property hereby conveyed,” or a covenant of like import, or the use of the words “with special warranty” in a deed, shall have the same effect as if the grantor had covenated that he, his heirs and personal representatives will forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of the grantor and all persons claiming by, through, or under him.(Code 1849, c. 117, §§11, 12; Code 1860, c. 117, §§11, 12; Code 1868, c. 72, §§14, 15; Code 1923, c. 72, §§14, 15.)
Revisers’ Note.—The second sentence of §15, c. 72, Code 1923, relating to the words “with special warranty”, is, in substance, placed in this section. See also the second and third sentences of the first paragraph of the revisers’ note to §2 of this article. See the second paragraph of the revisers’ note to §2 of this article, covering the insertion of the words “or a covenant of like import.” The words “or to claim,” which appeared in §14, c. 72, Code 1923, are omitted. They added nothing to the meaning of the section.
§4. Right to Convey.—A covenant by a grantor in a deed for land, “that he has the right to convey the said land to the grantee,” or a covenant of like import, shall have the same effect as if the grantor had covenanted that he has good right, full power, and absolute authority to convey the said land, with all the buildings thereon, and the privileges and appurtenances thereto belonging, unto the grantee, in the manner in which the same is conveyed, or intended so to be by the deed, and according to its true intent.(Code 1849, c. 117, §13; Code 1860, c. 117, §13; Code 1868, c. 72, §16; Code 1923, c. 72, §16.)
Revisers’ Note.—See the second paragraph of the revisers’ note to §2 of this article, covering the insertion of the words “or a covenant of like import.”
§5. Quiet Possession.—A covenant by a grantor in a deed “that the grantee shall have quiet possession of the said land,” or a covenant of like import, shall have as much effect as if he had covenanted that the grantee, his heirs, personal representatives, and assigns, might at any and all times thereafter, peaceably and quietly enter upon, and have, hold and enjoy, the land conveyed by the deed, or intended so to be, with all the buildings thereon, and the privileges and appurtenances thereto belonging, and receive and take the rents and profits thereof, to and for his and their use and benefit, without any lawful eviction, interruption, suit, claim or demand whatever.(Code 1849, c. 117, §14; Code 1860, c. 117, §14; Code 1868, c. 72, §17; Code 1923, c. 72, §17.)
Revisers’ Note.—See the second paragraph of the revisers’ note to §2 of this article, covering the insertion of the words “or a covenant of like import.” The last sentence in §17, c. 72, Code 1923, is incorporated in §6 of this article. The words “personal representatives” are inserted, since such a covenant might be used in a lease for years, which would pass to the lessee’s personal representatives. The word “lawful” has been inserted near the end of this section, since the courts would be obliged to read the word into statute, if it were not inserted.
§6. Freedom From Encumbrances.—A covenant, by any grantor in a deed, containing the words “free from all encumbrances,” or a covenant of like import, shall have the same effect as if the grantor had covenanted for himself, his heirs and personal representatives, that the premises are freely and absolutely acquitted, exonerated and forever discharged, and the grantee, his heirs and assigns, will be saved harmless and indemnified of, from and against any and every charge and encumbrance whatever.(Code 1849, c. 117, §14; Code 1860, c. 117, §14; Code 1868, c. 72, §17; Code 1923, c. 72, §17.)
Revisers’ Note.—The substance of this section was contained in the second sentence of §17, c. 72, Code 1923. Some verbal changes are made which clarify but do not change the effect of the former statute. See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or a covenant of like import.”
§7. Special Covenant Against Encumbrances.—A covenant by a grantor in a deed, “that he has done no act to encumber the said lands,” or a covenant of like import, shall have the same effect as if he had covenated that he had not done or executed, or knowingly suffered to be done or executed, any act, deed or thing whereby the lands and premises conveyed or intended so to be, or any part thereof, are, or will be, charged, affected, or encumbered in title, estate or otherwise.(Code 1849, c. 117, §16; Code 1860, c. 117, §16; Code 1868, c. 72, §19; Code 1923, c. 72, §19.)
Revisers’ Note.—Section 19, c. 72, Code 1923, contained the word “discharged” which was obviously a clerical error; the word “charged,” which was undoubtedly intended, is used in lieu of “discharged.” See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or a covenant of like import.”
§8. Further Assurances.—A covenant by a grantor in a deed for land “that he will execute such further assurances of the said lands as may be requisite,” or a covenant of like import, shall have the same effect as if he covenanted that he, the grantor, his heirs or personal representatives, will, at any time, upon any reasonable request, at the charge of the grantee, his heirs or assigns, do, execute, or cause to be done or executed, all such further acts, deeds and things, for the better, more perfectly and absolutely conveying and assuring the said lands and premises hereby conveyed or intended so to be, unto the grantee, his heirs and assigns, in manner aforesaid, as by the grantee, his heirs or assigns, his or their counsel in the law, shall be reasonably advised, or required.(Code 1849, c. 117, §15; Code 1860, c. 117, §15; Code 1868, c. 72, §18; Code 1923, c. 72, §18.)
Revisers’ Note.—Section 18, c. 72, Code 1923, contained the word “devised” before the word “advised.” That word is omitted as having no apparent meaning. See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or a covenant of like import.” The word “expense” is substituted for the word “charge.” No change in meaning is intended.
§9. Covenant to Pay Rents.—In a lease, a covenant by the lessee “to pay the rent,” or a covenant of like import, shall have the effect of a covenant that the rent reserved by the deed shall be paid to the lessor, or to those entitled under him, in the manner therein mentioned.(Code 1849, c. 117, §17; Code 1860, c. 117, §17; Code 1868, c. 72, §20; Code 1923, c. 72, §20.)
Revisers’ Note.—The last part of §20, c. 72, Code 1923, is now §10 of this article.
§10. Covenant to Pay Taxes.—A covenant by the lessee in a lease “to pay the taxes,” or a covenant of like import, shall have the effect of a covenant that all taxes, levies, and assessments upon the demised premises, or upon the lessor on account thereof, shall be paid by the lessee or those claiming under him: Provided, however, That no assessment for a permanent local improvement, such as paving the street or sidewalk, or other such improvement, and no tax levied upon the income of the lessor derived from such leased premises, shall be chargeable to the lessee, unless it is expressly so provided in the lease.(Code 1849, c. 117, §17; Code 1860, c. 117, §17; Code 1868, c. 72, §20; Code 1923, c. 72, §20.)
Revisers’ Note.—The part of this section relating to assessments for local improvements and to income taxes is new. See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or a covenant of like import.”
§11. Covenant Against Assignment.—In a lease, a covenant by the lessee “that he will not assign or sublet without leave,” or a covenant of like import, shall have the same effect as a covenant that the lessee will not, during the term, assign, transfer, set over, or sublet, the premises, or any part thereof, to any person, without the consent in writing of the lessor, his representatives or assigns.(Code 1849, c. 117, §18; Code 1860, c. 117, §18; Code 1868, c. 72, §21; Code 1923, c. 72, §21.)
Revisers’ Note.—This section was the first sentence of c. 72, §21, Code 1923. The remainder of said §21 is incorporated in §12 of this article. The word “sublet” is inserted in this section, because a subletting is in many respects the practical equivalent of an assignment, and may be just as prejudicial to the lessor as an assignment. The insertion of the word in this section will prevent its omission by inadvertence in the drafting of a lease. See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or a covenant of like import.”
§12. Covenant for Repairs.—In a lease, a covenant by the lessee “that he will leave the premises in good repair,” or a covenant of like import, shall, subject to the provisions of the following section, have the same effect as a covenant that the demised premises will, at the expiration or other sooner determination of the term, be peaceably surrendered and yielded up unto the lessor, his representatives or assigns, in good and substantial repair and condition, reasonable wear and tear excepted.(Code 1849, c. 117, §18; Code 1860, c. 117, §18; Code 1868, c. 72, §21; Code 1923, c. 72, §21.)
Revisers’ Note.—The rest of §21, c. 72, Code 1923 is in §11 of this article. See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or a convenant of like import.” The words “subject to the provisions of the following section” are inserted to indicate that there is no conflict between the two sections.
§13. Effect of Destruction of Buildings.—No covenant or promise by a lessee that he will leave the premises in good repair shall have the effect, if the buildings or other structures are destroyed by fire or otherwise, in whole or part, without fault or negligence on his part, of binding him to erect such buildings again, or to pay for the same or any part thereof, unless there be other words showing it to be the intent of the parties that he should be so bound.(Code 1849, c. 117, §19; Code 1860, c. 117, §19; Code 1868, c. 72, §22; Code 1923, c. 72, §22.)
Revisers’ Note.—The words “or other structures” following the word “buildings” in this section, are new. Fences, walls, dams or other structures should, in the opinion of the revisers, be treated the same as buildings.
§14. Covenant for Quiet Enjoyment.—A covenant by a lessor, “for the lessee’s quiet enjoyment of his term,” or a covenant of like import, shall have the same effect as a covenant that the lessee, his personal representatives and lawful assigns, paying the rent reserved, and performing his or their covenants, shall peaceably possess and enjoy the demised premises, for the term granted, without any interruption or disturbance from any person whatever.(Code 1849, c. 117, §20; Code 1860, c. 117, §20; Code 1868, c. 72, §23; Code 1923, c. 72, §23.)
Revisers’ Note.—See the second paragraph of the revisers’ note to §2 of this article.
§15. Covenant for Reentry for Default of Lessee.—If in a lease it be provided that “the lessor may reenter for default in the payment of rent or for the breach of covenants,” or if the lease contains words of like import, such words shall have the effect of an agreement that if the rent reserved, or any part thereof, be unpaid on or after the day specified in the deed for the payment thereof, or if any of the other covenants on the part of the lessee, his personal representatives or assigns, be broken, then, in either of such cases, the lessor, or those entitled in his place, at any time afterwards, into and upon the demised premises, or any part thereof, in the name of the whole, may reenter and the same again have, repossess and enjoy, as of his or their former estate.(Code 1849, c. 117, §21; Code 1860, c. 117, §21; Code 1868, c. 72, §24; Code 1923, c. 72, §24.)
Revisers’ Note.—See the second paragraph of the revisers’ note to §2 of this article covering the insertion of the words “or if the lease contains words of like import.”
§16. Covenants Shall Run With Land.—Each of the covenants hereinbefore mentioned in this article, as well as the covenant of seisin, when used in a conveyance of land, delivered after the date when this Code shall take effect, shall be considered as a covenant running with the land, whether such covenants have heretofore been so considered or not, unless a contrary intent shall be apparent from the conveyance.
Revisers’ Note.—This section is new. There is a conflict of authority in the United States as to whether certain covenants, such as those of “right to convey,” and “against encumbrances,” can be enforced by anyone except the original grantees. Many of the states by statute, and others by decision, have adopted the view that these covenants would be more useful if they would run with the land. The same observation applies to the covenant of seisin, which, while not mentioned in our statute, might be used in a deed.
§17. Construction of Covenants.—The legal scope and effect of the covenants mentioned in this article, and the person or persons by and against whom such covenants may be enforced, shall be determined according to the rules of law applicable to such cases, and the plain intent and meaning of the parties.
Revisers’ Note.—This section is new. Under the language of the first section of this article, rights and liabilities might be claimed to be created in and against persons, not parties to the covenant, and not brought within its scope by any legal principle. The legislature probably had no such intent, and no decision of our court finds any such intent, but it seems advisable to clarify the matter by an express provision in the statute, hence this section is added. This provision is also made applicable to the other sections of this article in which language similar to that of the first section is used.