IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2023 Term

_____________________ No. 22

- 0036

_____________________ SANDY M. AND SANTANA M., Co

- Guardians and Co

- Conservators of DONALD M. , Defendants Below, Petitioners ,

v.

DONALD M. , Plaintiff Below, Respondent

.

___________________________________________________________ Appeal from the Circuit Court of Wayne County The Honorable James H. Young, Jr. , Judge Civil Action No. 19 -C- 66

AFFIRMED

_________________________________________________________

Submitted: September 26, 2023 Filed: October 26, 2023
Michael S. Bailey, Esq. Bailey Legal Services, PLLC Barboursville, West Virginia Counsel for Petitioners Cayman M. Jarrell, Esq. Jarrell Law Office Wayne, West Virginia Counsel for Respondent

JU STICE WOOTON delivered the Opinion of the Court. 

### FILED October 26, 2023

released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAi SYLLABUS BY THE COURT

1. “I n reviewing challenges to the findings and conclusions of the circuit
court made after a bench trial, a two

- pronged deferential standard of review is applied. The
final order and the ultimate disposition are reviewed under an abuse of discretion standard,

and the circ uit court ’ s underlying factual findings are reviewed under a clearly erroneous
standard. Questions of law are subject to a de novo review. ” Syl. Pt. 1, Pub. Citizen, Inc.

v. First Nat ’l Bank in Fairmont , 198 W. Va. 329, 480 S.E.2d 538 (1996).

2

. “ T o establish title to land under an alleged lost deed, on parol
testimony, proof that it existed, and of its contents, must be clear and conclusive.” Syl. Pt.
1, Lucas v. Hensley , 81 W. Va. 239, 94 S.E. 138 (1917)

.

3

. “T he proponent of a lost or missing i nstrument must prove its

existence and contents with clear and conclusive evidence. ” Syl. Pt. 2, Estate of Bossio v.

Bossio , 237 W. Va. 130, 785 S.E.2d 836 (2016).1 WOOTON , Justice:

Sandy M. and Santa na M. (collectively “the petitioners”) 1 are the guardians

and conservators of the f ather

. 2 Th ey appeal the December 14, 2021, order entered by the
Circuit Court of Wayne County, West Virginia, declaring the respondent Donald Gene

M. as the owner in fee of all of the property and all the appurtenances of the property in
dispute (“the disputed property”) after conducting a bench trial

. 3 The court determined

that the respondent by “clear and strong” evidence had established all the required
elements necessary to prove that the disputed property had been conveyed by the f ather

to the respondent in a deed that had been signed by the f ather but thereafter was lost or

stolen , and that the petitioners “did not present any witnesses or evidence to contradict”

the respondent ’s evidence. The court also found that the respondent had established that
he was entitled to title to the disputed property under a theory of adverse possess ion

. T he

1 Sandy M. and Santana M. are also Donald M.’s (“ the f ather”) daughters and will be referred to throughout this opinion by their respective names . The case originally included another daughter of the f ather, Cherry S., who was identified as a conservator and guardian; however, Cherry S. had a “change of heart ” after the filing of the answer in this
case and testified on behalf of her brother, the respondent Donald Gene M . She does not appear as a petitioner in the instant appeal.

2 The f ather has been declared a protected person lacking capacity by o rder enter ed on May 22, 2018 , and has remained a protected person throughout these proceedings.

3 The respondent , Cherry S., and the respondent’s nephew, Mason S., all testified during the trial

. The petitioners did not call any witnesses or present any evidence.2 petitioners argue 4 that the circuit court erred in its fin ding s of fact and conclusions of law

relative to lost documents , the statute of frauds, and adverse possession , claiming that the
findings of fact were contrary to the weight of the evidence and the legal conclusions
were based on a misapplication of law

. After considering the parties’ brief s and oral
arguments, the appendix record, the app licable law, and all other matters before the Court,

we find that the circuit court did not err in granting title of the disputed property to the
respondent , as the evidence establish ed that the deed conveying the disputed property

4 The p etitioners set forth five assigned errors including: 1) the court’s findings of fact and conclusions of law are against the weight of the evidence and are based on misapplication of the law in regard to lost documents, the statute of fra uds, and adverse possession ; 2) the court’s application of the law to the facts erroneously awarded ownership of the real property under a theory of a lost or stolen document when the only evidence of this was the respondent ’s own self

- serving testimony th at a subsequent (but allegedly identical) deed was prepared and executed despite the lack of written or documented evidence of such a deed ; 3) the court erred in i ts application of the law to the facts to award ownership of real property under a theory of adverse possession as to the entirety of the ninety

- two acres despite the fact that the respondent ’s use of the property was with the f

ather’s knowledge and permission; 4) the court erred in is application of the law to the facts to award ownership of real property under a theory of adverse possession as to the entirety of the ninety

- two acres despite the respondent ’ s own testimony that he did not use, improve, or control any position of the bottom half of said property; and 5) the court erred in its decisi on to amend the pleadings to conform to the evidence to recognize a claim for “lost or stolen document” when such possible amendment was not raised for the first time until the court’s final order as such claim was not asserted by the respondent . Th e petit ioners set forth th ese assigned errors in a haphazard and redundant manner. For ease of review, we consolidate the assigned errors as did the petitioners in the argument portion their brief

. See Evans v. Holt , 193 W. Va. 578, 581 n.2, 457 S.E.2d 515, 518 n.2 (1995) (“ For ease of discussion, those assignments of error that are redundant are consolidated conceptually herein. ”).3 from the f ather to t he respondent was lost or stolen. 5 Accordingly, we affirm the circuit

court’s decision

.

5 T he petitioners also argu e that the circuit court erred in finding that the respo n dent established the elements needed to prove adverse possession . W e agree. Under West Virginia law, “ [t]he burden is upon the party who claims title by adverse possession to prove by clear and convincing evidence all elements essential to such title. ” Syl. Pt. 2, Brown v. Gobble , 196 W. Va. 55 9, 474 S.E.2d 489 (1996). In this regard,
[] [o]ne who seeks to assert title to a tract of land under the doctrine of adverse possession must prove each of the following elements for the requisite statutory period [which is ten years] : (1) That he has he ld the tract adversely or hostilely; (2) T hat the possession has been actual; (3) That it has been open and notorious (sometimes stated as visible and notorious ) ; (4) That possession has been exclusive; (5) That possession has been continuous; (6) That pos session has been under claim of title or color of title. []

Id

. at 566 , 474 S.E.2d at 496 ( q uoting Syl. Pt. 3, Somon v. Murphy Fabrication and Erection Co. , 160 W. Va. 84, 232 S.E.2d 524 (1977) ); see W

. V a. Code § 55

- 2

- 1 (2016) (establishing ten

- year statutory period)

. Here, t he respondent testified that he acted with the f ather’s permission in his use of the property and, in fact, believed the property had been gifted to him by the f ather

. The respondent ’s p ermissive use of the property defeats any claim of adverse possession

. As this Court recognized in Fantasia v. Schmuck , 183 W. Va. 361, 395 S.E.2d 784 (199 0 ),
[i]f the use of the land in dispute is permissive, the element of hostility or adversity is negated. “I t is elementary that adverse possession cannot be permissive.

. . . Permissive possession is not considered to be the possession of the occupant but is considered to remain the possession of the party on whose pleasure the permissive possession depends. ” 3 Am.Jur.2d Adverse Possession § 52 (1986) (footnotes omitted)

.
Fantasia , 183 W. Va. at 363, 395 S.E.2d at 786. Thus, t he circuit court erred in its determination that the respondent proved all the requisite elements of adverse possession of the disputed property. Nevertheless , the circuit court’s decision is still properly affirmed by this Court as discussed infra in greater detail

. “This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct o n any legal4 I. Facts and Procedural Background
On February 9, 1989, the respondent acquired land adjoining the f athe r’s

propert y; however, th e respondent ’s property did not provide access to any improved
roadway. The respondent testified that the f ather told him that he (the father) would give
the respondent the land adjacent to the respondent ’s property (“the disputed property”).

Based on the f ather’s assurances, the respondent testified that he made (and paid for)
improvements to the disputed property , including building a road, which involved
clearing trees, setting off dynamite, and filling in with extensive amounts of gravel. T he
respondent testified that in or about 1990 he fenced in the disputed property and installed
three gates, which restricted access to the road he had constructed. The respondent also

testified that he installed rel ay stations so that city water could be pumped onto the

property and cleared trees along each side of the road so that electricity could be run to
the property. T he respondent further testified that in or about 2008 he paid approximately
$110,000 to have a home buil t on the disputed property for his daughter

. 6

ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk , 149 W. Va. 246, 140 S.E.2d 466 (1965).

6 Th is portion of the disputed propert y was conveyed by the f ather to the respondent’s daughter, Tiffany B ., and her husband by deed dated January 24, 2013 , reserving a life estate in the property for the respondent and his wife . No issue is raised in regard to this conveyance. The f ather also conveyed a parcel of the disputed property to the respondent ’s son, Jeremy M., by deed dated February 5, 2013 . There also is no issue pertaining to this conveyance.5 In 2012, th e f ather and the respondent decided to formalize the f ather’s gift
of the disputed property to the respondent by executing a deed convey ing the property

. The f ather walked the disputed property with the respondent , driving stakes into the
ground delineating the property boundaries. The respondent testified that the f ather then
hired True Line Surveying, Inc. , to survey the disputed property using the stakes that the

f

ather and the respondent had placed in the ground. In March 2012, Wayne County
Surveyor Randy Thompson prepared a survey and plat of the boundaries of the disputed
property. Mr. Thompson revised the survey on October 22, 2012, to reflect the parcels
contained within the disputed property boundaries that w ere to be conveyed to the
respondent ’s daughter and son

. 7

The respondent testified that after the f ather looked over the survey and
accompanying plat, the f ather told him to go have a deed prepared memorializing a conveyance of the disputed property to th e respondent , but reserving a life estate in the

7 Although not relevant to the resolution of this mat ter, it is apparent from the record that in preparation of conveying the disputed property from the father to the respondent, the disputed property was first surveyed in 2012 based on the stakes that the father had placed in the g round. Thereafter, this or iginal survey was revised due to the anticipated conveyances of certain parcels contained therein by the father to the respondent’s son and daughter, as the respondent’s daughter already had a home on the parcel that was conveyed to her. S ee supra note 6. The record reflects that the deed in regard to the disputed property was prepared in 2012 and included the property description based on the October 22, 2012, revised survey, so logically the deed was prepared after the revised survey. As indicated in f ootnote six, the deeds to respondent’s daughter and son were executed and recorded in early 2013.6 property for the f ather. 8 The respondent had a ttorney Don Jarre ll prepare a deed
conveying the disputed property from the f ather to the respondent , and t he respondent
paid a ttorney Jarrell for the preparation of this deed. T he respondent picked the deed up
when it was ready and took it to the f ather, who was not at home

. The respondent stated
that his sister, Sandy M., was at the f ather’s home and he showed the deed t o her. W hen
she saw that the deed had been prepared by a ttorney Jarrell , she told the responden t: “we
want one from Mr. [Lycan] , ” who also was an atto rney. Thus, this first deed was never

executed.

The respondent testified that he went to a ttorney David Lycan and asked
him to prepare a deed identical to the one that had been prepared by a ttorney Jarrell. The
respondent also paid for the preparation of this deed. When the second deed was ready,

the respondent testified that he accompanied his f ather to a ttorney Lycan’ s office . The
respondent stated that he and his f ather picked up the deed and took it to the car so that

the f ather could read it “and go over the plat and everything step

- by

- step, which we did.”

The f ather told him, “It’s perfect.” The two went back into a ttorney Lycan’ s office , where

the respondent w atched the f ather sign the deed

. The father’s signature was notarized by

a ttorney Lycan’ s secretary, Pilar Harrison, who put her seal on the document. Ms.

Harrison then told the respondent that she could have the deed recorded , and that it would

8 There was no objection by the petitioners to the admission of the unexecuted deed as “being offered for purposes of identification by [the respondent] being the one he asked Don Jarrell’s office to produce.”7 cost seventy

- eight dollars for that service

. The respondent testified that he paid a ttorney
Lycan in cash for preparing the deed, and for the costs and fees associated with recording

the deed ; he was given a receipt for the services rendered , but did not retain the receipt

. Neither the respondent nor the f ather w as given a copy of the executed deed.

The deed was not recorded. The respondent testified that shortly thereafter

he called a ttorney Lycan’ s office to confirm that the deed had been recorded, and was informed by Ms. Harrison that it had not been . The respondent testified that he was told

his sisters had picked up the deed and took it with them. He ask ed: “How could you give
my deed away to somebody else?” and w as told, “Well, they said that they would take
care of it, and I thought it would be all right.” The respondent then went to the f ather’s

home and asked his sister , Sandy M., “Where’s my deed at?” and was tol d that she had
put the deed with their f ather’s w ill. When the respondent asked the f ather if this is w as
what he wanted, the f ather responded, “they got it with my will , ” adding “You know it ’s
yours. It’s every bit yours.” Finally, the f ather told him, “At my death, they will give it
to you.”

Cherry S. testified that her sister Sandy M. was friends with Ms. Harrison.
According to Cherry S., Ms. Harrison called Sandy M. and told her that their brother and

father had been to a ttorney Lycan ’s office to get a deed signed , and asked if she wanted
to come to the office to see the deed. Cherry S. went to the Lycan office with Sandy M. , and they collected the deed from Ms. Harrison. Cherry S. testified that she saw the deed ,8 and that the deed had been signed by the f ather and notarized. She stated that she knew

the f ather wanted the respondent to have the disputed property and that she and her sister
“should’ve never went down there and got the deed, and brought it up there, because that
has nothing to do with us

. My dad wanted my brother to have that [referring to the
disputed property.]”

The respondent also called as a witness his nephew (and the father’s
grandson) Mason S . Mason S. testified that his aunt Sandy M. was informed about the
executed deed by Ms. Harrison and that Sandy M. schemed that “[o]ne day, we can get

money [out] of a ll this because we’ve got his [ the respondent ’s] driveway.”

The respondent testified that the f ather suffered a stroke in 2015 , 9 which,

as the undisputed evidence of record shows, was after the f ather had executed both the
deed to the disputed property and his w ill. 10 A guardianship/conservator proceeding was

9 The petitioners indicate in their brief that the stroke occurred in 2015. We note that the circuit court found that the f ather also suffer ed from dementia , which finding is not disputed

.

10 The f ather executed a w ill on October 23, 2014. He discussed his w ill with the respondent , and asked the respondent what property he would like to receive. The respondent testified that because he had already received the disputed property through the dee d the f ather had executed, he asked the f ather for the Mathis Ridge property. The f

ather’s w ill contains a provision bequeathing the Mathis Ridge property to the respondent

.9 instituted and, according to the petitioners’ brief, the f ather was recognized as a protected
person in 2018 . During that proceeding, the f ather’s w i ll was read , at which time the
respondent realized that there was no mention of the deed conveying the disputed property

to him despite the fact that the deed was supposed to have been kept with the f ather’s w ill.
As a result, t he respondent testified , he became concerned about the whereabouts of the

deed.

On April 18, 2019, the respondent filed a complaint against his sisters , who

were the guardians and conservators for their f ather. He alleg ed in the complaint that in

2012 the f ather had conveyed title to the disputed property to him by a deed executed by

the f ather and notarized by a ttorney Lycan’ s secretary, but that “deed was never recorded
by The Law Office of David Lycan ; ” that t he respondent had title to the land under a

claim of a dv erse possession because he “held [the disputed property] under a code of title
for more than ten years, as well as upkeep and maintenance [ ; ]” and that the petitioners
were “unjustly enriched by the improvements that [the respondent ] built upon the land
that was promised to have been his land.” 11 The petitioners then filed a motion for

11 The circuit court found the unjust enrichment count to be without merit, because the respondent had “not offered any reliable or admissible evidence in the record that can establish either the cost or value of any such improvements including for creation and maintenance of the road, utilities, or fencing. ” The respondent does not appeal this ruling and the refore he has waived any claim of error with regard to the unjust enrichment count. See Tiernan v. Charleston Area Med. Ctr., Inc. , 203 W. Va. 135, 140 n. 1 0, 506 S.E.2d 578, 583 n.10 (1998) ; Syl. Pt. 6, Addair v. Bryant , 168 W. Va. 306, 284 S.E.2d 374 (1981)(“Assignments of error that are not argued in the brief on appeal may be deemed by this Court to be waived.”)

.10 summary judgment , and it was in the summary judgment proceedings that the issue of the
deed being lost or stolen arose . Th e circuit court denied the petitioners’ motion for
summary judgment , finding that there “ remain disputed issues of material fact, the most
notable of which at this time are questions as to whether the deed Plaintiff claims to have
had was taken by one of the Defendants and refused to be returned. ” The rea fter, the
matter proceeded to a bench trial , at the conclusion of which the circuit court declared

that the respondent was the owner in fee of all the dispute d property as described in the

court’s order. The petitioners appeal.

II. Standard of Review
The petitioners’ alleged errors challenge the findings of fact and

conclusions of law in the final order entered by the circuit court following a bench trial.

O ur standard of review provides :

I n reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two

- pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court ’ s underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat ’l Bank in Fairmont , 198 W. Va. 329, 480 S.E.2d
538 (1996). With these standards in mind, we address th e issues before us.11 III. Discussion

T h e petitioners argue that the circuit court erred in finding that the respondent

prove d the necessary elements to establish his claim to title in the disputed property by
clear and convincing evidence. 12 Conversely, the respondent contends that the court
properly relied upon “the Lost Document Theory . . . to declare the Plaintiff/Respondent
the owner in fee to the property in question[,]” because he proved the elements of “a lost
document by clear, strong , and conclusive evidence at trial.” We agree with the respondent

.

It is axiomatic in our jurisprudence governing property transactions that West
Virginia Code section 36

- 1

- 1 (2011 ), commonly known as the statute of frauds, requires a

deed or will to create an interest in real estate as follows:
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

12 The petitioners also challenge the circuit court’s credibility determinations made in regard to the witnesses who testified on the respondent ’s behalf , and the court’s determination, over the petitioners’ hearsay objection, that the respondent c ould testify about any actions h e took based on conversations that he had with the f ather but he could not testify as to “the words that were spoken [by the father] ” because the f ather had been adjudicated a protected person and thus would not have been c ompetent to testify.

We find th e petitioners’ challenges to be unavailing ; evidentiary rulings and credibility determinations are left to the sound discretion of the circuit court

. See Syl. Pt. 1, in part, McDougal v. McCammon , 193 W. Va. 229, 455 S.E.2d 788 (1995) (“ The West Virginia Rules of Evidence

. . . allocate significant discretion to the trial court in making evidentiary

. . . rulings. Thus, rulings on the admissibility of evidence

. . . are committed to the discretion of the trial court. Absent a few exceptions, this Court wil l review evidentiary

. . . rulings of the circuit court under an abuse of discretion standard. ”). Nothing in the record of this case would support a finding that the circuit court abused its discretion either in its evidentiary rulings or its credibility d eterminations.12 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.

Id

.

In regard to a deed, West Virginia Code section 36

- 3

- 4 ( 2011 ) requires that

“ [a] ny 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

. ” Id . (emphasis added); accord Syl . Pt. 1,
Cotiga Dev. Co. v. United Fuel Gas Co. , 147 W. Va. 484, 128 S.E.2d 626 (1962) ( “A valid
written instrument which expresses the intent of the parties in plain and unambiguous
language is not subject to judicial construction or interpretation but wi ll be applied and
enforced according to such intent.” ). Succinctly stated, a deed must sufficiently describe
the property that the parties intend to be conveyed, it must be executed by the grantor, and

it must be delivered. See W. Va. Code § 36

- 3

- 4.

With regard to description, this Court stated in Sally

- Mike Properties v.

Yokum , 175 W. Va. 296, 332 S.E.2d 597 (1985), that
[a] deed of conveya nce, in order to pass title, must contain a description of the property being conveyed which sufficiently identifies the land, either by the language of the granting clause itself or by reference to extrinsic facts which render the description certain. Se e, e.g. Consolidated Coal Company v. Mineral Coal Company , 147 W. Va. 130, 126 S.E.2d 194 (1962); Meadow River Lumber Company v. Smith , 126 W. Va. 847, 30 S.E.2d 392 (1944); Jones v. Gibson , 118 W. Va. 66, 188 S.E. 773 (1936).13 175 W. Va. at 301

- 02, 332 S. E.2d at 602. Further , “[d] elivery of a deed by the grantor with
intent that it take effect as his deed and its acceptance, express or implied, by the grantee
are essential to its validity. ” Syl. Pt. 3, Bennett v. Neff , 130 W. Va. 121, 42 S.E.2d 793
(1947) ; a ccord Syl. Pt. 5, Walls v. Click , 209 W. Va. 627, 550 S.E.2d 605 (2001).

“R ecording of the deed is not critical

. . . to its validity. ” Jones v. Wolfe , 203 W. Va. 613,
615, 509 S.E.2d 894, 896 (1998).

With the foregoing in mind, this case turns on whether the circuit court erred

in determi ning that the respondent’s parol evidence clearly and convincingly established
that a legally valid deed conve ying the disputed property to him existed, but had been lost

or stolen. Generally,
[t] he effect of a delivered deed to pass title is not affected as between the parties by the fact that the deed is thereafter lost or destroyed. The fact that a deed was lost or misplaced does not destroy the title of those claiming under it, nor revert it in a grantor, provided the instrument once existed and fulfilled the formalities required by law. The failure to record a deed does not deprive a person of the opportuni ty to assert a claim of legal title to property, and a lost deed may be established in order to prove title.

52 Am. Jur. 2d Lost and Destroyed Instruments § 6 (2023) (footnotes omitted)

.

Our preceden t s in regard to establishing a conveyance of property by a deed

that was thereafter lost or stolen uniformly provide that
[t] he spirit of our law is that title to land shall pass only by deed or will, and where it is sought to set up title under a lost deed,14 the evidence of the execution of such deed, of the contents thereof, and of its delivery, must be clear and convincing, approaching in dignity the conclusiveness of a written instrument. This rule has been laid down and adhered to by this court and the Supreme Court of Appeals of Virginia without exceptio n, and we think it is a rule based upon sound considerations of public policy

. Lucas v. Hensley , 81 W. Va. 239, 240, 94 S.E. 138, 139 (1917). This holding has remained
unchanged and unchallenged since it was first articulated more than a century ago. See
Syl. Pt. 6, Shaffer v. Shaffer , 69 W. Va. 163, 71 S.E. 111 (1911) (“ If an ancient deed be
lost, but its existence and contents be proven by oral evidence, and it be also proven to have
been recently in the possession of and pr oduced by the grantee, and such account thereof
is given, as might be reasonably expected, under all the circumstances, such oral evidence
is admissible to establish such deed or grant, without otherwise proving the due execution
and delivery thereof; and such deed will be treated as presumptively genuine, until such
presumption is overcome by evidence to the contrary. ”); Syl. Pt. 1, Telluric Co. v. Bramer , 76 W. Va. 185, 85 S.E. 177 (1915) (“ To establish or set up a lost instrument rising to the
dignity an d importance of a muniment of title, the evidence of its former existence, loss,
and contents must be clear, strong, and conclusive. ”). I n Lucas , the Court reiterate d its
prior holdings in a new syllabus point: “To establish title to land under an alleged lost deed,
on parol testimony, proof that it existed, and of its contents, must be clear and conclusive. ”

Id . at 239, 94 S.E. at 138, Syl. Pt. 1

. W e see no reason to al ter or amend this holdin g

. See
Marshall v. Elmo Greer & Sons, Inc. , 193 W. Va. 427, 429

- 30, 456 S.E.2d 554, 556

- 57
(1995) (“ Generally, a high degree of proof from one seeking to establish a lost instrument
is required. In Syl. pt. 1, Lucas v. Hensley , 81 W.Va. 239, 94 S.E. 138 (1917) we said, ‘ [t]o15 establish title to land under an alleged lost deed, on parol testimony, proof that it existed,
and of its contents, must be clear and conclusive. ’ See Syl., Drake v. Parker , 122 W.Va.
145, 7 S.E.2d 651 (1940) ( ‘ [f]or parol testimony to establish title to l and through an alleged
lost instrument, proof of its execution, contents and loss must be conclusive ’ ); Gill v.

Colton , 12 F.2d 531, 534 (4th Cir.1926) ( ‘ [i]t is incumbent upon one seeking to establish
a lost instrument to prove it by evidence of the clear est and most satisfactory character ’ );
Smith v. Lurty , 108 Va. 799, 800

- 01, 62 S.E. 789, 790 (1908) (because of the motive of the
party alleging a lost instrument, a high degree of proof is required)

. ” ).

Most recently, in Estate of Bossio v. Bossio , 237 W. Va. 130, 785 S.E.2d 836
(2016) , we examined the foregoing precepts in the context of a lost instrument, specifically , a lost stock purchase agreement. Id . at 133

- 3 5 , 785 S.E.2d at 839

- 4 1

. W e reiterated that

our consideration of whether a document or instrument was lost or stolen was well

established and grounded in evidentiary principles : 13

13 The petitioners argue that the circuit court erred in amending the pleadings to conform to the evidence and to recognize a claim for “lost or stolen document” when the amendment was not made until the circuit court’s final order. In resp onse, the respondent concedes that the lost document theory was not explicitly in the pleadings but argues that he met the elements of a lost document by clear and convincing evidence that was unrefuted by the petitioners. Critically, the circuit court’s amendment of the pleading was based on the respondent ’s failure to plead any cause of action (contractual or otherwise) based on his factual allegations as to the existence of a deed and then its mysterious disappearance. I t is this failing that the circuit court sought to correct by amending the respondent ’s pleading.

Rule 15 (b) of the West Virginia Rules of Civil Procedure provide s for a court to amend the pleadings to conform with the evidence. See id . (“W hen issues n ot raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in16 As a threshold matter, we observe that Rule 1004(a) of the West Virginia Rules of Evidence provides that an original writing is not required to prove its contents where “[a]ll the originals are lost or destroyed, and not by the proponent acting in bad faith[.]” In that event, “secondary evidence” is permitted to prove the existence and content of a writing. All parties appear to agree that, although West Vi rginia has no blanket syllabus point governing all writings, this Court has traditionally followed the general rule that “a high degree of proof from one seeking to establish a lost instrument is required.” Marshall v. Elmo Greer & Sons, Inc. , 193 W. Va. 4 27, 429, 456 S.E.2d 554, 556 (1995). The Marshall Court further cited with approval caselaw regarding lost deeds which consistently holds that “proof that [the deed] existed, and of its contents, must be clear and conclusive.” Id . (citing Syl. Pt. 1, Lucas v. Hensley , 81 W. Va. 239, 94 S.E. 138 (1917)); see also Syl., Drake v. Parker , 122 W. Va. 145, 7 S.E.2d 651 (1940)

all respects as if they had been raised in the pleadings

. Such amendment of the pleadings as may be necessary to cause them to conform to the eviden ce and to raise these issues may be made upon motion of any party at any time, even after judgment;

. . . the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby

. . . . ”) ( e mphasis added) ) ; Syl. Pt. 4, Floyd v. Floyd , 133 S.E.2d 726, 148 W. Va. 183 (1963) (“ Under both the old trial procedure in effect in West Virginia prior to July 1, 1960, and the new procedure in effect on and after that date as Rules of Civil Proce dure, pleadings could be amended under control of the court during the trial of a case to encompass an issue raised by the evidence although not in the pleadings; but if an issue is so raised in trial and trial by consent of the parties without such amendm ent, it is treated as if it had been raised in the pleadings and the failure to amend will not affect the verdict. ”).
Our review of the appendix record shows that the petitioners neither objected to any of the evidence introduced by the respondent in regard to the lost or stolen deed, nor offer ed any evidence of their own to refute that offered by the respondent . Further, th e respondent did , at least implicitly, ra ise the “lost or stolen deed” in the complaint as he alleged that he had an executed and notarized deed from the f ather that had not been recorded by the attorney . Further , the circuit court found in its denial of the petitioners’ summary judgment motion that there remained a disputed factual issue in regard to whether the deed the respondent allegedly had was taken by one of the petitioners and “ refused to be returned. ” Finally, the factual issue of the lost or stolen deed permeated the entire bench trial , as discussed in greater detail infra . Accordingly, the court did not err in amending the pleadings.17 (“For parol testimony to establish title to land through an alleged lost instrument, proof of its execution, content and loss must be concl usive.”); Syl., Telluric Co. v. Bramer , 76 W. Va. 185, 85 S.E. 177 (1915) (“To establish or set up a lost instrument rising to the dignity and importance of a muniment of title, the evidence of its former existence, loss and contents must be clear, strong, and conclusive.”)

. . . . This precedent is in accord with the majority of jurisdictions: “The courts have used a variety of terms to describe the standard or degree of proof required to establish the existence and contents of a lost instrument, generally resting most heavily on the clear and convincing standard.” 52 Am. Jur. 2d Lost and Destroyed Instruments § 35 (2015).
Estate of Bossio , 237 W. Va. at 134, 785 S.E.2d at 840 (footnotes omitted). Based on the
foregoing, the Court extended the lost or stolen deed principles to other documents or
instruments by holding that “[t] h e proponent of a lost or missing instrument must prove its

existence and contents with clear and conclusive evidence. ” Id . at 130, 785 S.E.2d at 837,
Syl. Pt. 2.

In the instant matter, the uncontested evidence introduced during the bench

trial showed that there were two deeds prepared

– the first by a ttorney Jarrell, and the
second, at petitioner’s San dy M .’s request, by a ttorney Lycan. T he first deed, which was

not executed , was admitted into evidence without objection and contained a full description
of the disputed property that the f ather intended to convey to the respondent

. The

uncontroverted evidence also showed that the second deed, which was prepared by a ttorney Lycan, “conveyed, from [ the f ather] to [ the respondent ], the same property description as
the deed prepared by A ttorney Donald Jarrell.” The respondent also introduced evidence18 of a property description of the disputed property and s urvey map of the property drafted
by the Wayne County Surveyor Randy Thompson that match ed the property description s

in both deed s . The respondent also testified that he and the f ather walked the disputed
property together and placed s takes into the ground delineating the property boundaries.

The undisputed evidence further showed that the respondent and the f ather

went to the office of a ttorney Lycan together when the second deed was ready ; that the

f

ather executed the deed after reviewing it ; th at the deed was notarized ; and that the
respondent had possession of the deed after the f ather executed it , but left it with Ms.
Harrison in response to her suggestion that she take the deed to have it recorded. The
respondent testified that he paid attorney Lycan for his services, including the cost and fees
associated with recording of the deed.

Thereafter Ms. Harrison called Sandy M. and told her that the executed deed

was at a ttorney Lycan’ s office . Cherry S. testified that she and Sandy M. retrieved the deed

from the attorney’s office before it was recorded. She stated that she saw the e xecu ted

deed , which then disappeared despite assurances made to the respondent that it was being
held in safekeeping with the father’s will.

Based on this evidence , the circuit court determined that the respondent
established the execution, cont ents, and loss of the deed conclusively. The evidence was clear and strong on all of the required elements. Additionally, the Defendants did not19 present any witnesses or evidence to contradict Plaintiff ’ s evidence

. Defendants did not object to the present ment of this evidence by Plaintiff

. Therefore, the Court FINDS that Plaintiff is GRANTED title to the subject property under the theory of lost document.
We find no error in the circuit court’s factual findings or conclusions of law in regard to

the respo ndent ’s right to title in the disputed property based on an executed and notarized

deed between the f ather and the respondent that was later lost or stolen . The circuit court

also did not err in the legal description of the disputed property as set out in detail in the
circuit court’s order entered December 14, 2021. Accordingly, we affirm

.

IV. Conclusion
For the foregoing reasons, the circuit court ’s order is hereby affirmed.

Affirmed.