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 

JUSTICE 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 VIRGINIA
i

SYLLABUS BY THE COURT

1. “In 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). 

2. “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.” Syl. Pt. 

1, Lucas v. Hensley, 81 W. Va. 239, 94 S.E. 138 (1917).

3. “The proponent of a lost or missing instrument 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 Santana M. (collectively “the petitioners”)1 are the guardians 

and conservators of the father.

2 They 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 father 

to the respondent in a deed that had been signed by the father 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 possession. The 

1

Sandy M. and Santana M. are also Donald M.’s (“the father”) daughters and will 

be referred to throughout this opinion by their respective names. The case originally 

included another daughter of the father, 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 father has been declared a protected person lacking capacity by order entered 

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 argue4 that the circuit court erred in its findings 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’ briefs and oral 

arguments, the appendix record, the applicable 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 established that the deed conveying the disputed property 

4 The petitioners 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 frauds, 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 that 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 its 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 

father’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 decision 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. The 

petitioners set forth these 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 father to the respondent was lost or stolen.5

 Accordingly, we affirm the circuit 

court’s decision. 

5 The petitioners also argue that the circuit court erred in finding that the respondent

established the elements needed to prove adverse possession. We 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. 559, 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 held the tract adversely or hostilely; 

(2) That 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 possession has been 

under claim of title or color of title.[]

Id. at 566, 474 S.E.2d at 496 (quoting Syl. Pt. 3, Somon v. Murphy Fabrication and 

Erection Co., 160 W. Va. 84, 232 S.E.2d 524 (1977)); see W. Va. Code § 55-2-1 (2016) 

(establishing ten-year statutory period). 

Here, the respondent testified that he acted with the father’s permission in his use 

of the property and, in fact, believed the property had been gifted to him by the father. The 

respondent’s permissive 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 (1990), 

[i]f the use of the land in dispute is permissive, the element of 

hostility or adversity is negated. “It 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, the 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 on any legal 
4

I. Facts and Procedural Background

On February 9, 1989, the respondent acquired land adjoining the father’s 

property; however, the respondent’s property did not provide access to any improved 

roadway. The respondent testified that the father told him that he (the father) would give 

the respondent the land adjacent to the respondent’s property (“the disputed property”). 

Based on the father’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. The

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 relay 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. The respondent further testified that in or about 2008 he paid approximately 

$110,000 to have a home built 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 This portion of the disputed property was conveyed by the father 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 father 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, the father and the respondent decided to formalize the father’s gift 

of the disputed property to the respondent by executing a deed conveying the property. 

The father walked the disputed property with the respondent, driving stakes into the 

ground delineating the property boundaries. The respondent testified that the father then 

hired True Line Surveying, Inc., to survey the disputed property using the stakes that the 

father 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 were to be conveyed to the

respondent’s daughter and son.

7

 

The respondent testified that after the father looked over the survey and 

accompanying plat, the father told him to go have a deed prepared memorializing a 

conveyance of the disputed property to the respondent, but reserving a life estate in the 

7 Although not relevant to the resolution of this matter, 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 ground. Thereafter, this original 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. See 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 footnote six, the deeds to respondent’s daughter and son were executed and recorded in 

early 2013. 
6

property for the father.8 The respondent had attorney Don Jarrell prepare a deed 

conveying the disputed property from the father to the respondent, and the respondent

paid attorney Jarrell for the preparation of this deed. The respondent picked the deed up 

when it was ready and took it to the father, who was not at home. The respondent stated 

that his sister, Sandy M., was at the father’s home and he showed the deed to her. When 

she saw that the deed had been prepared by attorney Jarrell, she told the respondent: “we 

want one from Mr. [Lycan],” who also was an attorney. Thus, this first deed was never 

executed.

The respondent testified that he went to attorney David Lycan and asked 

him to prepare a deed identical to the one that had been prepared by attorney Jarrell. The 

respondent also paid for the preparation of this deed. When the second deed was ready, 

the respondent testified that he accompanied his father to attorney Lycan’s office. The 

respondent stated that he and his father picked up the deed and took it to the car so that 

the father could read it “and go over the plat and everything step-by-step, which we did.” 

The father told him, “It’s perfect.” The two went back into attorney Lycan’s office, where 

the respondent watched the father sign the deed. The father’s signature was notarized by 

attorney 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 attorney 

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 father was given a copy of the executed deed. 

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

he called attorney 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 asked: “How could you give 

my deed away to somebody else?” and was 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 father’s 

home and asked his sister, Sandy M., “Where’s my deed at?” and was told that she had 

put the deed with their father’s will. When the respondent asked the father if this is was 

what he wanted, the father responded, “they got it with my will,” adding “You know it’s

yours. It’s every bit yours.” Finally, the father 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 attorney 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 father and notarized. She stated that she knew 

the father 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 all this because we’ve got his [the respondent’s] driveway.”

The respondent testified that the father suffered a stroke in 2015,

9 which, 

as the undisputed evidence of record shows, was after the father had executed both the 

deed to the disputed property and his will.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 father also suffered from dementia, which finding is not 

disputed. 

10 The father executed a will on October 23, 2014. He discussed his will 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 deed the father had executed, he asked the father for the Mathis Ridge property. The 

father’s will contains a provision bequeathing the Mathis Ridge property to the 

respondent. 
9

instituted and, according to the petitioners’ brief, the father was recognized as a protected 

person in 2018. During that proceeding, the father’s will 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 father’s will. 

As a result, the 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 father. He alleged in the complaint that in 

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

the father and notarized by attorney Lycan’s secretary, but that “deed was never recorded 

by The Law Office of David Lycan;” that the respondent had title to the land under a 

claim of adverse 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 therefore 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.10, 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. The 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.” Thereafter, 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 disputed 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. 

Our standard of review provides:

In 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 the issues before us. 
11

III. Discussion

The petitioners argue that the circuit court erred in finding that the respondent 

proved 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 could testify 

about any actions he took based on conversations that he had with the father but he could 

not testify as to “the words that were spoken [by the father]” because the father had been 

adjudicated a protected person and thus would not have been competent to testify.

 We find the 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 will 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 determinations.
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 will 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 conveyance, 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. See, 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); accord Syl. Pt. 5, Walls v. Click, 209 W. Va. 627, 550 S.E.2d 605 (2001). 

“Recording 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 determining that the respondent’s parol evidence clearly and convincingly established 

that a legally valid deed conveying 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 opportunity 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 precedents 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 

exception, 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 produced 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 and importance of a muniment of title, the evidence of its former existence, loss, 

and contents must be clear, strong, and conclusive.”). In Lucas, the Court reiterated 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. We see no reason to alter or amend this holding. 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]o 
15

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 land 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 clearest 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 133-35, 785 S.E.2d at 839-41. We 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 response, 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. 

It 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 provides for a court to 

amend the pleadings to conform with the evidence. See id. (“When issues not raised by 

the pleadings are tried by express or implied consent of the parties, they shall be treated in 
16

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 Virginia 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. 

427, 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 evidence 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. . . .”) (emphasis 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 Procedure, 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 amendment, 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 offered

any evidence of their own to refute that offered by the respondent. Further, the respondent

did, at least implicitly, raise the “lost or stolen deed” in the complaint as he alleged that he 

had an executed and notarized deed from the father 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 conclusive.”); 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]he 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 attorney Jarrell, and the 

second, at petitioner’s Sandy M.’s request, by attorney Lycan. The first deed, which was 

not executed, was admitted into evidence without objection and contained a full description 

of the disputed property that the father intended to convey to the respondent. The 

uncontroverted evidence also showed that the second deed, which was prepared by attorney 

Lycan, “conveyed, from [the father] to [the respondent], the same property description as 

the deed prepared by Attorney Donald Jarrell.” The respondent also introduced evidence
18

of a property description of the disputed property and survey map of the property drafted 

by the Wayne County Surveyor Randy Thompson that matched the property descriptions

in both deeds. The respondent also testified that he and the father walked the disputed 

property together and placed stakes into the ground delineating the property boundaries. 

The undisputed evidence further showed that the respondent and the father 

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

father executed the deed after reviewing it; that the deed was notarized; and that the

respondent had possession of the deed after the father 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 attorney 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 executed 

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, contents, and loss of the deed 

conclusively. The evidence was clear and strong on all of the 

required elements. Additionally, the Defendants did not 
19

present any witnesses or evidence to contradict Plaintiff’s 

evidence. Defendants did not object to the presentment 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 respondent’s right to title in the disputed property based on an executed and notarized 

deed between the father 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.