Present: Carrico, C.J., Compton, Stephenson,*

 Lacy, 

Hassell, Keenan and Koontz, JJ. 

JAMES E. DAVIS, ET AL. 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 962102 September 12, 1997 

TAZEWELL PLACE ASSOCIATES 

 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Charles E. Poston, Judge 

 In this appeal, we consider issues relating to 

statutory and express warranties arising from the sale of 

real property. 

 This case was decided in the trial court on a motion 

for summary judgment and, therefore, in accordance with 

familiar principles, we will state the facts in the light 

most favorable to the plaintiffs, the non-moving parties, 

"unless the inferences are strained, forced, or contrary to 

reason." Bloodworth v. Ellis, 221 Va. 18, 23, 267 S.E.2d 

96, 99 (1980). 

 Plaintiffs, James E. and Delores Z. Davis, executed a 

sales contract with defendant, Tazewell Place Associates, a 

Virginia general partnership, for the construction and 

purchase of a townhouse. The contract required that the 

defendant construct the townhouse "in a good and workmanlike 

manner in substantial accordance with the plans and 

specifications." On March 10, 1993, the plaintiffs and 

defendant closed on the contract, and the plaintiffs 

 

 *Justice Stephenson participated in the hearing and 

decision of this case prior to the effective date of his 

retirement on July 1, 1997. 
received a deed to the property. The express contractual 

warranty was not included in the deed. 

 Several months after the closing, the plaintiffs began 

to notice structural changes and defects in the townhouse. 

They made numerous complaints, but the defendant failed to 

correct or remedy the defects to the plaintiffs' 

satisfaction. 

 Subsequently, the plaintiffs retained an architect and 

contractor to correct the defects. During the course of 

correcting the defects, the plaintiffs learned that the 

design of the townhouse was "flawed and inadequate; that the 

initial construction and the corrective action taken by [the 

defendant were] both inadequate and insufficient to cure the 

defects; that the construction as well as the corrections 

and repairs attempted by [the defendant] had not been 

designed and/or performed in a competent and/or good and 

workmanlike manner, and that by virtue of all of this, the 

defects were exacerbated and made worse." 

 On April 28, 1995, the plaintiffs filed their motion 

for judgment against the defendant alleging, inter alia, a 

claim for breach of contract. The defendant filed 

responsive pleadings and a motion for summary judgment 

asserting that it was entitled to judgment because the 

plaintiffs' action was barred by the statute of limitations 

contained in Code § 55-70.1(E) and that the express warranty 

in the sales contract was not included in the deed and, 

therefore, when the sales contract merged with the deed at 
closing, the contractual warranty was extinguished. The 

trial court agreed with the defendant and entered judgment 

on its behalf. Plaintiffs appeal. 

 Code § 55-70.1(B) states in part: 

 "[I]n every contract for the sale of a new 

dwelling, the vendor, if he is in the business of 

building or selling such dwellings, shall be held 

to warrant to the vendee that, at the time of 

transfer of record title or the vendee's taking 

possession, whichever occurs first, the dwelling 

together with all its fixtures is sufficiently (i) 

free from structural defects, so as to pass 

without objection in the trade, (ii) constructed 

in a workmanlike manner, so as to pass without 

objection in the trade, and (iii) fit for 

habitation." 

Code § 55-70.1(E) states in part: 

 "The warranty shall extend for a period of 

one year from the date of transfer of record title 

or the vendee's taking possession, whichever 

occurs first. . . . Any action for its breach 

shall be brought within two years after the breach 

thereof." 

 The plaintiffs contend that the statute of limitations 

contained in Code § 55-70.1(E) does not bar their cause of 

action. Continuing, the plaintiffs assert that the 

defendant must have corrected any defect in the townhouse 

for a period of one year from the date of transfer of record 

title and that the statute of limitations did not begin to 

run until the defendant breached its duty under the warranty 

by failing to remedy the defects when requested to do so. 

 The defendant responds that any breach of warranty 

occurred at, or before, closing and that, at the latest, the 

statute of limitations began to run on the date of the 

closing. The defendant says that the plaintiffs' cause of 
action is barred because their motion for judgment was filed 

more than two years from the date of the closing. 

 We will not, as the defendant suggests, decide the 

meaning of Code §§ 55-70.1(B) and (E) by resorting to our 

prior decisions on statutes of limitations or legal 

dictionaries. Rather, resolution of this issue involves 

simple statutory construction, and we must apply the plain 

language that the General Assembly chose to employ when 

enacting these statutes. 

 We have repeatedly stated the principles of statutory 

construction that we must apply when statutes, such as Code 

§§ 55-70.1(B) and (E), are clear and unambiguous. 

 "'While in the construction of statutes the 

constant endeavor of the courts is to ascertain 

and give effect to the intention of the 

legislature, that intention must be gathered from 

the words used, unless a literal construction 

would involve a manifest absurdity. Where the 

legislature has used words of a plain and definite 

import the courts cannot put upon them a 

construction which amounts to holding the 

legislature did not mean what it has actually 

expressed.'" 

Barr v. Town & Country Properties, 240 Va. 292, 295, 396 

S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 

924, 930, 172 S.E. 445, 447 (1934)); accord Abbott v. 

Willey, 253 Va. 88, 91, 479 S.E.2d 528, 529 (1997); Weinberg

v. Given, 252 Va. 221, 225, 476 S.E.2d 502, 504 (1996); 

Dominion Trust Co. v. Kenbridge Constr. Co., 248 Va. 393, 

396, 448 S.E.2d 659, 660 (1994). 

 At common law, a purchaser did not acquire an implied 

warranty associated with the sale of a new dwelling. See
Bruce Farms v. Coupe, 219 Va. 287, 289, 247 S.E.2d 400, 402 

(1978). Code §§ 55-70.1(B) and (E), which changed the 

common law, create certain statutory warranties, provide a 

warranty period of one year from the date of transfer or 

possession, and prescribe a statute of limitations of two 

years from the date of the breach of the warranty. If the 

buyer notifies the builder of any defects covered by the 

statutory warranty within the one-year statutory warranty 

period, and the builder fails to remedy such defects, then 

the builder has breached its statutory duty, and the buyer 

is entitled to file an action for damages against the 

builder within two years from the date that the buyer 

notified the builder of the defect. 

 Here, the defendant, who had the burden of proving that 

the plaintiffs' cause of action was barred by the statute of 

limitations, failed to establish that the plaintiffs filed 

their motion for judgment more than two years from the date 

they notified the defendant of any defects. Accordingly, 

the trial court erred in holding that the plaintiffs' 

statutory warranty claim was barred by the statute of 

limitations. 

 Next, the plaintiffs argue that the trial court erred 

in holding that the express warranty contained in the sales 

contract between the parties was extinguished under 

"Virginia's merger doctrine." The plaintiffs contend that 

the doctrine of merger does not apply to collateral 

agreements such as the defendant's contractual warranty that 
the townhouse would be constructed in a good and workmanlike 

manner in substantial accordance with the plans and 

specifications provided by the defendants. Responding, the 

defendant argues that "[a]n express warranty concerning the 

quality of construction of a dwelling which is contained in 

the contract for sale, but which is not set forth in the 

[d]eed for the subject property is extinguished by the 

doctrine of merger recognized in Virginia law." We disagree 

with the defendant. 

 In Sale v. Figg, 164 Va. 402, 180 S.E. 173 (1935), we 

considered whether an oral warranty alleged to have been 

made contemporaneously with a real estate sale contract was 

enforceable even though the warranty was not contained in 

the deed. In Sale, the purchaser and seller of certain real 

estate agreed, among other things, "that the house was 

guaranteed for a year from the date of purchase against all 

defects in workmanship and materials, except cracked walls." 

Id. at 405, 180 S.E. at 175. Subsequently, a deed was 

recorded which contained a general warranty and the usual 

covenants of title, and the property was conveyed to the 

purchaser. The deed did not contain the seller's promise to 

guarantee the workmanship on the house for a year. After 

the purchaser had taken possession of the property, the 

purchaser notified the seller of certain defects in the 

property, and the seller failed to correct the defects to 

the purchaser's satisfaction. 

 The purchaser filed an action for damages against the 
seller, and at the conclusion of the purchaser's evidence, 

the trial court struck the evidence because the deed made no 

reference to the sales warranty. We reversed the judgment 

of the trial court because the purchaser presented 

sufficient evidence which, if true, showed that the seller 

agreed to perform certain collateral undertakings which the 

purchaser and seller did not intend to be merged in the deed 

of conveyance. Id. at 409-10, 180 S.E. at 176-77. 

 In Miller v. Reynolds, 216 Va. 852, 223 S.E.2d 883 

(1976), we observed that "'[i]n accordance with contract law 

generally, all provisions in the contract are merged into 

the deed when executed and delivered except those covenants 

which are deemed to be collateral to the sale.'" Id. at 

854, 223 S.E.2d at 885 (quoting G.W. Thompson on Real 

Property, 1963 Repl. Vol. 8A, § 4458). We also stated in 

Miller that: 

 "'In this regard it is to be observed that a 

contract for a deed antedates the execution of the 

deed, and may, and often does, contain many 

provisions which the execution of the deed neither 

adds to nor takes away from. A deed is a mere 

transfer of title, a delivery so to speak of the 

subject-matter of the contract. It is the act of 

but one of the parties, made pursuant to a 

previous contract either in parol or in writing. 

It is not to be supposed that the whole contract 

between the parties is incorporated in the deed 

made by the grantor in pursuance of, or as the 

consummation of, a contract for the sale of land. 

 There are many things pertaining to the contract 

which it is manifest are never inserted in a 

deed. . . . The instrument of conveyance may be 

complete for its purpose, which is to declare and 

prove the fact of conveyance; yet very naturally 

and commonly it is but a part execution of a prior 

contract, and parol evidence is admissible to show 

the true consideration for which it is given and 

all other parts of the transaction, not 
inconsistent with the recitals in the deed, 

provided the fact of conveyance is not affected by 

it.'" 

216 Va. at 855, 233 S.E.2d at 885, (quoting Collins v. Lyon, 

181 Va. 230, 245, 24 S.E.2d 572, 579 (1943)). 

 Applying these principles, we hold that the express 

warranty contained in the contract between the plaintiffs 

and defendant did not merge with the deed at closing and is 

enforceable. The defendant's warranty to construct the 

townhouse in a good and workmanlike manner is collateral to 

the sale of the property and did not qualify, or in any way 

affect, title to the land. Furthermore, the agreement is 

not a matter with which a title examiner would be 

necessarily concerned. 

 The defendant, relying upon Bruce Farms v. Coupe, 

supra, argues that the express contractual warranty is 

extinguished by the doctrine of merger. The defendant's 

reliance is misplaced. It is true, as defendant asserts, 

that in Bruce Farms, we stated: "'when a deed is executed 

and accepted in performance of a prior preliminary contract, 

the deed, if unambiguous in its terms, and unaffected by 

fraud or mistake, must be looked to alone as the final 

agreement of the parties.'" 219 Va. at 289, 247 S.E.2d at 

401 (quoting Woodson v. Smith, 128 Va. 652, 656, 104 S.E. 

794, 795 (1920)). However, the defendant has failed to read 

this quotation in the context of Bruce Farms and Woodson. 

 We did not consider in Bruce Farms whether a warranty 

in a real estate sales contract merged with the deed upon 
closing. Rather, we stated, "[t]he principal issue raised 

by this writ is whether, as the trial court ruled, the sale 

of a newly completed residence by a builder-vendor to the 

initial homeowner carries an implied warranty." 219 Va. at 

288, 247 S.E.2d at 400. 

 In Woodson, an irreconcilable conflict existed between 

the antecedent real estate sales contracts which contained 

one date relating to the delivery of possession and the 

deeds which contained a different date specifying delivery 

of possession. Resolving the clear conflict between the 

deeds and the contracts, we stated that, "[t]he rule is that 

when a deed is executed and accepted in performance of a 

prior preliminary contract, the deed, if unambiguous in its 

terms, and unaffected by fraud or mistake, must be looked to 

alone as the final agreement of the parties." 128 Va. at 

656, 104 S.E. at 795. 

 Additionally, the defendant fails to note the following 

statement that we made in Woodson, which is equally 

pertinent here: 

 "Doubtless many cases may arise in which 

distinct and unperformed stipulations contained in 

a contract for sale will not be merged in or 

discharged by deed where that instrument is silent 

upon the subject of such stipulations. In such 

cases there is no conflict between the contract 

and the deed. But the deed must be regarded as 

the sole and final expression of the agreement 

between the parties as to every subject which it 

undertakes to deal with. All inconsistencies 

between the prior contract and the deed must be 

determined by the latter alone, and previous 

negotiations or agreements, verbal or written, 

cannot be set up for the purpose of contradicting 

it." 
Id. Woodson is entirely consistent with our holding today 

because this is indeed a case in which a distinct 

stipulation is contained in the contract for sale, the deed 

is silent upon such subject, and there is no conflict 

between the contract and the deed. 

 Accordingly, we will reverse the judgment of the trial 

court and remand this case for further proceedings 

consistent with this opinion. 

Reversed and remanded.