CHARLESTON.

#### G. W. Blake *v.*D. F. Hedrick.

Submitted October 23, 1923.

Decided October 30, 1923.

1. *Deeds*— Deed *Regular, Except no Parties Named in Gi'anting Clause, Sold Sufficient.*

Where in the premises oí a deed the parties are distinguished, as parties of the first part and parties of the second part, and the parties of ¡the first part covenant with the parties of the second part that they have the right to convey the land described in 'the instrument and warrant generally the property thereby conveyed, but in the granting clause no parties are named, the deed is sufficient .to pass title to the property so described, (p. 763).

2. *Same*— Effect *Must he Given to Plain -Intent of. Parties, Ascertained from Consideration of W-hole Instrument.*

In construing a deed effect must always be given to the plain intent of the parties, when such intent can he ascertained from a consideration of the whole instrument and is not repugnant to any rule -of law. (p. .764). .. : ■

*7623. *Same*— Not *Essential That Grantor or Grantee he Formally Named in Granting Clause, if Sufficiently Designated hy Whole Instrument.*

It is not essential that the grantor or grantee he formally named in the granting clause of a deed, if by taking the whole instrument together, they he sufficiently designated or described as to distinguish them from the rest of the world, and there is no uncertainty as to the identity of either party, (p. 765).

4. *.Same*— Conduct *of Parties Entitled to Great Weight in Construing Ambiguous Deed.*

Where there is any ambiguity in the terms of a deed, the construction placed thereon hy the subsequent conduct of the parties is entitled to great weight, (p. 765).

Appeal from Circuit Court, Greenbrier County.

Suit by G. *W.*Blake against D. F. Hedrick. From a decree for plaintiff, defendant appeals.

*Reversed and remanded.*

*Mark L. Jarrett,*for appellant.

*Chas. S. Dice,*for appellee.

Miller, President:

The object of this suit was to have canceled a certain contract or memorandum for the purchase of real property signed by plaintiff, to enjoin defendant from the collection of a judgment at law for a part of the purchase money therefor and the recovery of the deferred payments not yet due, and to recover from defendant the sum already paid on the contract. On the bill, answer and depositions taken and filed in the cause, the lower court decreed plaintiff the relief prayed for. •

Defendant sold at auction a tract of land containing 73 acres and 26 poles; plaintiff was the highest bidder, and the land was knocked down to him at the price of $50.00 per acre. He executed and signed a contract, certifying that he had that day purchased the land and agreeing to pay the sum of $50.00 per acre, on the terms announced at the sale, which-was one-third cash and the remainder in one, two and three years. Plaintiff-paid defendant $500.00 on the day of sale; and the judgment sought to have enjoined was for the balance

*763of the cash payment named in the terms of-'sale. Later plaintiff by writing, demanded that defendant return to him the cash payment made. and. attempted to rescind his contract for the purchase of the land, on the ground that defendant had not complied with his part of the contract.

Plaintiff ’s main ground for refusal to take the land is that defendant did not have good title to the. property. Several grounds are pleaded and relied on, but each of them depends on the alleged defect in defendant’s title; and if the title was good, they become immaterial.

Defendant’s title was derived by deed from Julia E. Bright, which, omitting only the description of - the land conveyed, is as follows:

> “¥m. Me. Bright, ,et ux.-to

> D. F. Hedrick, et ux. .

> “This deed made the 7th day of October, 1907, between W. Me. Bright and Julia E. Bright, his wife, of Greenbrier County and State of West Va. of the first part and D. F. Hedrick and A. C. Hedrick, his wife, of the same county and state of the second part.

> “Witnesseth, that in consideration of the sum of ten dollars and other valuable consideration do grant unto the said the following described real estate * * *

> “And the said parties of the.first part covenant to and with the said parties of the second part that they have the right to convey the said land to the grantee, and that they will warrant generally the property hereby conveyed.”

The defect pointed out and relied on by plaintiff is that neither the names of the grantors nor those of- the grantees are found in the granting clause of the deed, and that, therefore, it is an absolute nullity. Within a few days after its execution and delivery the deed was' duly recorded ; and defendant entered upon the property and continued in possession thereof until the sale to plaintiff, a period of over fourteen years, without any adverse claim thereto on the part of the Brights or any other person.

In. support of his contention that every deed must name a grantor and a grantee, plaintiff cites our case of *Lafferty*v. *764*Lafferty,*42 W. Va. 783. In that case one of the parties signing and acknowledging the deed was not mentioned in the deed itself, and it was held that the deed did not convey his interest in the property. In the case of *Allen*v. *Withrow,*110 U. S. 119 cited, it was held that a deed in blank in which the name of the grantee wsis not inserted by the party authorized to fill it in, before the deed was delivered, passed no interest. In *Bank et al.*v. *Rice,*4 How. (U. S.) 225, also cited, the names of the wives of two of the grantors, while signed to the deed, were not incorporated in the instrument, and the wives being the owners in fee of the land, it was held that the deed conveyed the marital interest of the husbands therein, but nothing more.

The rule laid down in our cases, applicable to this case, is that in construing a deed effect must always be given to the plain intent of -the parties, when such intent can be ascertained from the instrument taken as a whole and is not repugnant to any rule of law. *Roberts*v. *Gas Company,*89 W. Va. 384; *Irvin*v. *Stover,*67 W. Va. 356; *Waldron*v. *Coal Company,*61 *W.*Va. 280; *Uhl*v. *Railroad Company,*51 W. Va. 106; 4 Enc. Dig. Va. & W. Va. Rep. 419, 420. See also, 2 Devlin on Deeds, §§836, 836a. What other intent can we gather from the deed in question than that the parties named therein as parties of the first part intended to convey to the persons named as parties of the second part the land described! There can be no question that Bright and wife are the grantors. They are named in the instrument as the parties of the first part; they signed, sealed and acknowledged the same, and delivered it to the Hedricks. As recorded the deed imports that it was a conveyance from “¥m. Me. Bright, et ux. to D. F. Hedrick et ux.” This fact is significant. The deed further recites that “the said parties of the first part covenant to and with the said parties of the second part that they have' the right to convey the said land to the grantees.” Is this- not conclusive of the intent of those named as parties of the first part to convey to those named as parties of the second part the land described, and that the second parties named 'are the grantees, when read in connection with the remainder of the instrument? And'we must *765consider the whole of the writing together in arriving at the intent of the parties thereto. *Uhl*v. *Railroad Company, supra; McDougal*v. *Musgrave,*46 W. Va. 509; *Hurst*v. *Hurst,*7 W. Va. 289.

Are the Hedricks sufficiently designated as the grantees in the deed? They are named as the parties of the second part. The grantors covenanted with them that they had the right to convey the land described. “It is not essential that the grantee should be formally named in the granting part of the deed. It is only necessary that, taking the whole instrument together, there is no uncertainty as to the grantee.” 1 Jones on Real Property, §224; *Weekly*v. *Weekly,*75 W. Va. 280; *Roberts*v. *Gas Company, supra; Amer. Emigrant Co.*v. *Clark,*62 Iowa, 182; *Newton*v. *McKay,*29 Mich. 1; 1 Devlin on Deeds, §184. The latter authority says: “The fact that a grantee is not described by name will not affect the validity of a deed, if the designation or description be sufficient to distinguish the person intended from the rest of the world.” Though no names follow the granting words in the deed, the Hedricks are named as parties of the second part in a former clause. While unskilfully' drawn, the deed was intended to convey the land to some one. By being named as parties of the second part, the Hedricks are distinguished from the rest of the world. No other person or persons are named. No one else could be intended as grantee. In the cáse of *Newton*v. *McKay, supra,*the grantee in the deed there involved was designated as party of the second part by the recital in the premises, but was not mentioned in the granting clause, nor in any other part of the deed, and it was held that the grantee 'was sufficiently pointed out and identified by being named as* party of the second part. In the opinion in that case the court said: “If the instrument shows who he (the grantee) is, if it designates him, and so identifies him that there can be no reasonable doubt respecting the party constituted grantee, it is not of vital consequence that the matter which establishes his identity is not in the common or best form, or in the usual or most appropriate position in the instrument. ’ ’ ■

Defendant has been in possession of the land in question for more than fourteen years, holding it under the deed from *766the Brights. Mrs. Bright died some years ago'; and before-the' institution of this suit defendant secured from all of her heirs at law with' the exception of the widower Wm; Me.. Bright, who at the time was mentally incapacitated to contract, a quitclaim deed for the land in question. Thus it appears that at no time have any of the parties in interest, or those who might have claimed title to the land had the deed in question been invalid, asserted any adverse claim; but on the contrary defendant has had quiet and peaceable possession of the land since the year 1907. Where there is any ambiguity in the terms of a written instrument, the construction placed thereon by the parties is entitled to great weight; and the same rule applies to deeds. *List*v. *Cotts,*4 W. Va. 543; *King*v. *King,*80 W. Va. 371; *King*v. W. *& W. Ry. Co.,*99 Va. 625.

•For the foregoing reasons we are of opinion to reverse the decree below, and remand the cause to the circuit court for-further proceedings.-

*Decree reversed; cause remanded.*