Cottrell v. Nurnberger , 131 W. Va. 391 ( 1948 )

I am in agreement with the Court's conclusion that the holdings of the Circuit Court of Kanawha County in this matter must be reversed. In my opinion, however, the question certified, that is, the overruling of a demurrer to a bill of complaint is subject to a much simpler approach.

The complainants allege that they are owners of lots in the Falls View Addition acquired by deeds, either directly or indirectly, from the defendant. The bill of complaint describes their lots by lot number, referring to a recorded plat filed as an exhibit with the bill of complaint. That plat on its face dedicates a part of the land shown upon it to common use by the purchasers and owners of lots described and numbered by the plat. The subdivision lies on Coal River and its entire width on the river's bank for a depth of between two and three hundred feet is marked "beach" and "playground". Of course that constituted what in this jurisdiction is a private dedication upon the recording of the plat and the sale of lots described thereby. The plaintiffs are now contending that Lot 45 was also intended to be used as a playground and for public recreation due to certain oral promises or representations made to them or their predecessors in title before the delivery of their deeds. Of course the plat became a part of each deed in which it was referred to for the purpose of description, and since the plat deals with the matter of dedication to common use, a deed of which it is part necessarily embraces the same subject. Therefore, in my opinion, the rule that a deed or written instrument cannot be contradicted or altered by evidence of parol understandings arrived at between the parties prior to or contemporary therewith concerning a matter therein dealt with, is controlling in this matter.

But were the statements made by Nurnberger, which, under the allegations of the bill of complaint, caused complainants to buy and to pay a greater consideration for the lots that they did buy, made orally? The bill of complaint, with apparent care, avoids stating whether the representations were spoken or were in writing. Therefore, since the language of the bill of complaint is susceptible of meaning one of two different things, the rule that the language of a pleading is to be construed most strongly against the pleader is applicable.Blooming Rose Coal Co. v. White, 128 W. Va. 502, 37 S.E.2d 455;Brecker v. Brecker, 122 W. Va. 120, 8 S.E.2d 522; Rine v.Morris, 99 W. Va. 52, 127 S.E. 908. If that be so, then upon demurrer a statement which the bill alleges induced complainant to buy, is to be regarded as having been orally made. Since the bill of complaint on its face shows that the complainants are holding their lots by virtue of deeds, Nurnberger being the common source of title, and shows also that the promises or representations upon which they base their claim for recovery were orally made prior to the execution and delivery of their deed, the rule that prior or contemporaneous negotiations concerning a subject matter dealt with in a written instrument are merged in the writing seems to me to have evident application. Kanawha Banking and Trust Co. v. Gilbert, 131 W. Va. 88,46 S.E.2d 225; Ligon v. Godfrey L. Cabot, Inc., 123 W. Va. 400,15 S.E.2d 595; Central Trust Co. v. Virginia TrustCo., 120 W. Va. 23, 197 S.E. 12; 70 A.L.R. 752.

For the foregoing reasons, in my opinion, the bill of complaint shows on its face: First, that the complainants hold under a common source of title; Second, that the conveyances from that common source embrace the question of dedication to common use of certain property which does not include Lot 45; Third, that since dedication was included in the contracts in writing by which complainants are bound, they cannot be permitted to rely upon the breach of oral understandings arrived at prior to or contemporaneously with the execution and delivery of those contracts in writing or of deeds that relate to that subject matter, i. e. dedication. I therefore do not think it necessary to go further than the parol evidence rule in deciding this case.