Dave Karoly, post: 419749, member: 94 wrote: My intention in this thread is not to give a final opinion on the O.P. either way because not enough information is given to do so.
I agree without an examination of all the evidence a meaningful opinion cannot be achieved.
Ron Lang, post: 419978, member: 6445 wrote: 1. If a deed is unambiguous, the intent of the grantor is determined from the language of the deed
The primary consideration in construing a deed is to determine the intention of the parties executing the
instrument. Poindexter v. Molton, 237 Va. 448, 377 S.E.2d 450 (1989); Allen v. Green, 229 Va. 588, 331 S.E.2d 472
(1985). Where the language of a deed clearly and unambiguously expresses the intention of the parties, no rules of
construction should be used to defeat that intention. CNX Gas Company, LLC v. Rasnake, 287 Va. 163, 752 S.E.2d
865 (2014). Technical rules of construction are not to be invoked to defeat the intention of the grantor when that
intention appears by giving to the words used their natural and ordinary import. Fitzgerald v. Fitzgerald, 194 Va. 925,
76 S.E.2d 204 (1953).
The grantorÛªs intention, as expressed in the instrument, must prevail unless it is contrary to some principle of
law or rule of property. Auerbach v. County of Hanover, 252 Va. 410, 478 S.E.2d 100 (1996) (in ascertaining the intent
of the grantor, the deed is examined as a whole and effect given to all of its terms and provisions not inconsistent
with some principle of law or rule of property); Austin v. Dobbins, 219 Va. 930, 252 S.E.2d 588 (1979); Fitzgerald v.
Fitzgerald, 194 Va. 925, 76 S.E.2d 204 (1953).
If a deed is clear and unambiguous, the focus is upon the language of the deed and from that source alone, its
meaning is determined. Trailsend Land Co. v. Virginia Holding Corp., 228 Va. 319, 321 S.E.2d 667 (1984); Irby v. Roberts,
256 Va. 324, 504 S.E.2d 841 (1998) (in such a case, one should look no further than the four corners of the deed
itself). Put another way, if the language of a deed is clear, unambiguous and explicit, and the intention is thereby free
from doubt, that intention is controlling, if not contrary to law or to public policy, and auxiliary rules of construction
should not be used. Shirley v. Shirley, 259 Va. 513, 525 S.E.2d 274 (2000).
The terms of every deed are to be understood in their plain, ordinary, and proper sense, and where words have a
primary meaning they must always be understood in that sense, unless the context shows that they were otherwise
intended. Lindsey v. Eckels, 99 Va. 668, 40 S.E. 23 (1901). Words deliberately put into a deed, and put there for a
purpose, are not to be lightly considered nor arbitrarily put aside. Halsey v. Fulton, 119 Va. 571, 89 S.E. 912 (1916).
Where there is no conflict in any of the provisions of the deed and no repugnancy results, all parts thereof should be
given effect. Fitzgerald, supra.
Oral evidence of the circumstances at the time of the deedÛªs creation is not to be considered in giving effect to
the clear, unambiguous, and explicit language of the deed. Irby v. Roberts, 256 Va. 324, 504 S.E.2d 841 (1998).
Yes, Virginia seems to be more strict than average. I've read a few Appellate opinions previously.
Ron Lang, post: 419978, member: 6445 wrote: 1. If a deed is unambiguous, the intent of the grantor is determined from the language of the deed
The primary consideration in construing a deed is to determine the intention of the parties executing the
instrument. Poindexter v. Molton, 237 Va. 448, 377 S.E.2d 450 (1989); Allen v. Green, 229 Va. 588, 331 S.E.2d 472
(1985). Where the language of a deed clearly and unambiguously expresses the intention of the parties, no rules of
construction should be used to defeat that intention. CNX Gas Company, LLC v. Rasnake, 287 Va. 163, 752 S.E.2d
865 (2014). Technical rules of construction are not to be invoked to defeat the intention of the grantor when that
intention appears by giving to the words used their natural and ordinary import. Fitzgerald v. Fitzgerald, 194 Va. 925,
76 S.E.2d 204 (1953).
The grantorÛªs intention, as expressed in the instrument, must prevail unless it is contrary to some principle of
law or rule of property. Auerbach v. County of Hanover, 252 Va. 410, 478 S.E.2d 100 (1996) (in ascertaining the intent
of the grantor, the deed is examined as a whole and effect given to all of its terms and provisions not inconsistent
with some principle of law or rule of property); Austin v. Dobbins, 219 Va. 930, 252 S.E.2d 588 (1979); Fitzgerald v.
Fitzgerald, 194 Va. 925, 76 S.E.2d 204 (1953).
If a deed is clear and unambiguous, the focus is upon the language of the deed and from that source alone, its
meaning is determined. Trailsend Land Co. v. Virginia Holding Corp., 228 Va. 319, 321 S.E.2d 667 (1984); Irby v. Roberts,
256 Va. 324, 504 S.E.2d 841 (1998) (in such a case, one should look no further than the four corners of the deed
itself). Put another way, if the language of a deed is clear, unambiguous and explicit, and the intention is thereby free
from doubt, that intention is controlling, if not contrary to law or to public policy, and auxiliary rules of construction
should not be used. Shirley v. Shirley, 259 Va. 513, 525 S.E.2d 274 (2000).
The terms of every deed are to be understood in their plain, ordinary, and proper sense, and where words have a
primary meaning they must always be understood in that sense, unless the context shows that they were otherwise
intended. Lindsey v. Eckels, 99 Va. 668, 40 S.E. 23 (1901). Words deliberately put into a deed, and put there for a
purpose, are not to be lightly considered nor arbitrarily put aside. Halsey v. Fulton, 119 Va. 571, 89 S.E. 912 (1916).
Where there is no conflict in any of the provisions of the deed and no repugnancy results, all parts thereof should be
given effect. Fitzgerald, supra.
Oral evidence of the circumstances at the time of the deedÛªs creation is not to be considered in giving effect to
the clear, unambiguous, and explicit language of the deed. Irby v. Roberts, 256 Va. 324, 504 S.E.2d 841 (1998).
Which is great until it is not physically possible. Even the most plain truth of case law has its limits. Where the language meets 'you cant sell what you dont own' or other competing doctrines a decision still has to be made. It ALWAYS depends...
Ron Lang, post: 419978, member: 6445 wrote: 1. If a deed is unambiguous, the intent of the grantor is determined from the language of the deed
The primary consideration in construing a deed is to determine the intention of the parties executing the
instrument. Poindexter v. Molton, 237 Va. 448, 377 S.E.2d 450 (1989); Allen v. Green, 229 Va. 588, 331 S.E.2d 472
(1985). Where the language of a deed clearly and unambiguously expresses the intention of the parties, no rules of
construction should be used to defeat that intention. CNX Gas Company, LLC v. Rasnake, 287 Va. 163, 752 S.E.2d
865 (2014). Technical rules of construction are not to be invoked to defeat the intention of the grantor when that
intention appears by giving to the words used their natural and ordinary import. Fitzgerald v. Fitzgerald, 194 Va. 925,
76 S.E.2d 204 (1953).
The grantorÛªs intention, as expressed in the instrument, must prevail unless it is contrary to some principle of
law or rule of property. Auerbach v. County of Hanover, 252 Va. 410, 478 S.E.2d 100 (1996) (in ascertaining the intent
of the grantor, the deed is examined as a whole and effect given to all of its terms and provisions not inconsistent
with some principle of law or rule of property); Austin v. Dobbins, 219 Va. 930, 252 S.E.2d 588 (1979); Fitzgerald v.
Fitzgerald, 194 Va. 925, 76 S.E.2d 204 (1953).
If a deed is clear and unambiguous, the focus is upon the language of the deed and from that source alone, its
meaning is determined. Trailsend Land Co. v. Virginia Holding Corp., 228 Va. 319, 321 S.E.2d 667 (1984); Irby v. Roberts,
256 Va. 324, 504 S.E.2d 841 (1998) (in such a case, one should look no further than the four corners of the deed
itself). Put another way, if the language of a deed is clear, unambiguous and explicit, and the intention is thereby free
from doubt, that intention is controlling, if not contrary to law or to public policy, and auxiliary rules of construction
should not be used. Shirley v. Shirley, 259 Va. 513, 525 S.E.2d 274 (2000).
The terms of every deed are to be understood in their plain, ordinary, and proper sense, and where words have a
primary meaning they must always be understood in that sense, unless the context shows that they were otherwise
intended. Lindsey v. Eckels, 99 Va. 668, 40 S.E. 23 (1901). Words deliberately put into a deed, and put there for a
purpose, are not to be lightly considered nor arbitrarily put aside. Halsey v. Fulton, 119 Va. 571, 89 S.E. 912 (1916).
Where there is no conflict in any of the provisions of the deed and no repugnancy results, all parts thereof should be
given effect. Fitzgerald, supra.
Oral evidence of the circumstances at the time of the deedÛªs creation is not to be considered in giving effect to
the clear, unambiguous, and explicit language of the deed. Irby v. Roberts, 256 Va. 324, 504 S.E.2d 841 (1998).
I wasn't able to read this earlier.
These are pretty standard statements of legal principles for interpreting Deeds. Questions of law are fairly strict. If the Deed conveys the west 100 feet the grantee won't later be allowed to say the intention was he was to receive the west 150 feet. Boundary location is a question of fact and is not as rule bound. Engineers have a tough time accepting that the west 100 feet in law measures, for example, 101 feet in fact. There is an exception to the prohibition against extrinsic evidence when applying the Deed to the ground. It has been prevailing practice over the past sixty years where the engineering profession has been incorrectly treating questions of fact as questions of law.
Legal rules are strict, for example a grant Deed is one thing and a quit claim Deed is another, there isn't much leeway to treat a quit claim Deed as a grant Deed. On the other hand, questions of fact are more responsive to yielding to reality. Boundary location is where it's found.
JBStahl, post: 419707, member: 427 wrote: Gaps are a legal impossibility. Either you are dealing with two adjoining properties sharing a common boundary, or you are dealing with three intentionally created parcels and two boundaries. Can't have a "gap" and can't have an "overlap." There is always an appropriate rule of law which governs the location of the common boundary.
Gaps can exist between Instruments of Title.
That may indicate a gap in ownership, or the parcels may in fact abut.
If the parcels do not abut there is a gap in ownership, which since you say it cannot exist, then there is an unknown owner to be found.
There may have been no intention to create a gap, but it can be created. When a gap exists there is no common boundary in all areas between those two particular parcels. So you may be looking for something that does no exist.
Paul in PA
Ron Lang, post: 419978, member: 6445 wrote: 1. If a deed is unambiguous, the intent of the grantor is determined from the language of the deed
The primary consideration in construing a deed is to determine the intention of the parties executing the
instrument. Poindexter v. Molton, 237 Va. 448, 377 S.E.2d 450 (1989); Allen v. Green, 229 Va. 588, 331 S.E.2d 472
(1985). Where the language of a deed clearly and unambiguously expresses the intention of the parties, no rules of
construction should be used to defeat that intention. CNX Gas Company, LLC v. Rasnake, 287 Va. 163, 752 S.E.2d
865 (2014). Technical rules of construction are not to be invoked to defeat the intention of the grantor when that
intention appears by giving to the words used their natural and ordinary import. Fitzgerald v. Fitzgerald, 194 Va. 925,
76 S.E.2d 204 (1953).
The grantorÛªs intention, as expressed in the instrument, must prevail unless it is contrary to some principle of
law or rule of property. Auerbach v. County of Hanover, 252 Va. 410, 478 S.E.2d 100 (1996) (in ascertaining the intent
of the grantor, the deed is examined as a whole and effect given to all of its terms and provisions not inconsistent
with some principle of law or rule of property); Austin v. Dobbins, 219 Va. 930, 252 S.E.2d 588 (1979); Fitzgerald v.
Fitzgerald, 194 Va. 925, 76 S.E.2d 204 (1953).
If a deed is clear and unambiguous, the focus is upon the language of the deed and from that source alone, its
meaning is determined. Trailsend Land Co. v. Virginia Holding Corp., 228 Va. 319, 321 S.E.2d 667 (1984); Irby v. Roberts,
256 Va. 324, 504 S.E.2d 841 (1998) (in such a case, one should look no further than the four corners of the deed
itself). Put another way, if the language of a deed is clear, unambiguous and explicit, and the intention is thereby free
from doubt, that intention is controlling, if not contrary to law or to public policy, and auxiliary rules of construction
should not be used. Shirley v. Shirley, 259 Va. 513, 525 S.E.2d 274 (2000).
The terms of every deed are to be understood in their plain, ordinary, and proper sense, and where words have a
primary meaning they must always be understood in that sense, unless the context shows that they were otherwise
intended. Lindsey v. Eckels, 99 Va. 668, 40 S.E. 23 (1901). Words deliberately put into a deed, and put there for a
purpose, are not to be lightly considered nor arbitrarily put aside. Halsey v. Fulton, 119 Va. 571, 89 S.E. 912 (1916).
Where there is no conflict in any of the provisions of the deed and no repugnancy results, all parts thereof should be
given effect. Fitzgerald, supra.
Oral evidence of the circumstances at the time of the deedÛªs creation is not to be considered in giving effect to
the clear, unambiguous, and explicit language of the deed. Irby v. Roberts, 256 Va. 324, 504 S.E.2d 841 (1998).
Yes, the question of intent is objective rather than subjective in contracts (deeds). What does the evidence indicate was conveyed; not what did the parties really want to convey. In Matt's case you have to get subjective in order to go to the line of the parent tract, and would have to against clear evidence (the stakes set to mark the corners). While that may have been what the parties really wanted to do, I don't think the surveyor alone can make it so. If the subdivision lot had never been actually staked out, then maybe the surveyor could go to the adjoiner line if it's shown that way on the subdivision map.
Gap is a poor word to describe what is happening.
If the gap was intentional then I think remainder Tract is better.
If it was unintentional then technically it doesn't exist except as a conflict but since we aren't an insurance company in some circumstances it may be better for the land surveyor to advise the client to seek corrective action or at least refrain from using the gap for anything expensive and permanent.
