
    Staunton.
    Mineral Development Company v. James & Others.
    September 14, 1899.
    1. Construction oe Written Instruments — Deeds — Contracts.— Whether an instrument is a deed or merely a contract for a conveyance is a question of intention to he determined from the instrument itself. Words of present grant and assurance create a presumption that an executed conveyance was intended, but this presumption may be overcome by other words in the instrument showing that a future conveyance is contemplated. If, taken as a whole, it appears that a mere agreement for a conveyance was all that was intended, the intent shall prevail, for the intent, and not the words, is the essence of every agreement.
    Appeal from a decree of the Circuit Court of Wise county, pronounced April 8, 1898, in a suit in chancery, 'wherein the appellee James was the complainant, and the appellant and others were the defendants.
    
      Affirmed.
    
    This was a suit in chancery for the purpose of having partition of two tracts of land in Wise county, in which, the appellee James claimed an interest, which land was in the possession of the Mineral Development Company. The Mineral Development Company claimed to be the owner in fee of both tracts, and denied all interest or estate in J ames. The Mineral Development Company claimed,- through successive conveyances, under two-deeds made by J. B. B. Mills, a former owner of the lands. It claimed that it acquired one-half of one tract and-seven-twentieths of the other tract under a deed bearing date April 18, 1882, and the remaining one-half of the first tract and thirteen-twentieths of the second tract under a deed bearing date November 7, 1883. These instruments are in the words and figures following, to-wit:
    “ This indenture, made the eighteenth day of April, in the year of our Lord one thousand eight hundred (and eighteen-hundred) and eighty-fwo, between J. B. F. Mills and Martha J. Mills, his wife, of the first part, and "William D. Jones and Joseph B. Altemus, both of the city of Philadelphia, Pa., of the second part: Witnesseth, that the said party of the first part, for and in consideration of the sum of thirteen hundred and twenty dollars, viz.: $660 cash in hand paid, lawful money of the United States of America, well and truly paid by the said party of the second part to the said party of the first part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, convey and confirm unto the said party of the second part, their heirs and assigns, one undivided half interest in the following described lands, to-wit:
    “ 1. First tract lying near Big Stone ‘Gap, containing about ninety acres, it being the same land on which I now reside, and which land was this day partitioned off to us by the following commissioners, to-wit: J. A. Jones, William Wolfe and John B. Gilly, and for a more perfect- description, see their report-.
    “ 2. Second tract lying on the south side of Walden’s Badge, and containing about seven hundred acres, but out of which I only sell one-half of seven-tenths of about six hundred fend fifty acres, and adjoining the lands of B. F. Creech, M. Y. Ellboum, Preston and others, and lying about one and three-fourths miles from Big Stone Gap, it being a part of the land partitioned to me by the aforesaid commissioners, and for a more full description see said commissioner’s report.
    
      “ 3. Third tract lying near Big’ Stone Gap, adjoining the lands first named, and James Shepherd’s, Thomas Davis’s and others, containing about fifteen acres, and being a part of the lands which said Mills bought of Lewis and wife.
    “4. Bourth tract lies adjoining the last named tract and James Shepherd, Thomas Davis and John Elkins, and for a more perfect description see t-he deed made by the said John Elkins, Sr., containing about one hundred and fifty acres.
    “ 5. And one other tract of land lying on the south side of Walden’s Badge, and adjoining the second named tract and William Stewart, L. M. Coyler and John Gilly, containing about five hundred acres, out of which I, the said Mills, only sell one-half of one-half of one undivided half interest therein; to this last named tract the said Mills and wife only gives a special warranty deed. But to all the other tracts named a general warranty deed is to be made. The first named tract is to be estimated at sixteen dollar’s thereof, the second tract is to be estimated at two dollars per acre; the third tract is to be estimated at two- dollars per acre, the fourth tract is to be estimated at one dollar per acre; the last named or special warranty tract is to be estimated at twenty cents per acre, and should said tracts of land, when all are surveyed, show a different amount or number of acres from those named in the foregoing estimate, the amount shall be calculated and the true amount ascertained, and either added to or deducted from the amount of dollars set forth in the foregoing deed, and it is hereby further agreed by and between the parties of the second part and the party of the first part, the said Mills is to occupy said lands free of charge, for the term of one year from this date, and in the event a railroad is not built in one year, said Mills is to occupy said land free of charge until a railroad is built, not to' exceed the term of three years from this date, for said Jones and Altemus’s interests in said land; together with all and singular the buildings, improvements, woods, ways, rights, liberties, hereditaments and appurtenances to the same belonging or -in any wise appertaining, and. the reversion and reversions, remainder' and remainders, rents, 'issues and profits thereof, and of every part and parcel thereof, and also all real estate, right, title, interest, -property, possession, claim and demand- whatsoever, both in law and equity of the said party of the first part, of, in and to the said premises with appurtenances, to have and to hold the said premises, with all and singular the appurtenances unto the said party of the second part, their heirs and assigns to the only proper use, benefit and behoof of the said party of the second part, their heirs and assigns forever.
    “And the said J. B. F. Mills and Martha. J. Mills, his wife, their heirs, ■ executors and administrators, • do by these presents covenant, grant and agree to, and with the said party of the second part, their heirs and, assigns, that the said J. B. F. Mills and Martha J. Mills, his wife, and their heirs, executors, administrators do, by these presents covenant, grant and agree to and with, the said party of the second part, their heirs and assigns, that the said J. B. F. Mills and Mattie J. Mills, his wife, and heirs forever, all and .singular the hereditaments and premises hereinbefore described and granted, or mentioned and intended to-be so, with the appurtenances, unto the said party of the second part, their heirs and assigns, against us, the said J. B. F. Mills and Martha J. Mills, his wife, and their heirs and against.all and every other person or persons whomsoever, lawfully claiming or to claim the same or any part thereof, shall and will warrant and forever defend. .
    “ In witness whereof, the said party of -the first part to these presents do hereunto set their hands and seals, dated the day and year first above written.
    “ J. B. F. MILLS, [seal.] ”
    “MABTHA J. MILLS, [seal.]”
    
      “This deed, made this the 7th day of November, 1883, by and between John B. E. Mills and Martha J. Mills, his wife, of the first part, who are of the county of Wise and State of Virginia, and William D. Jones and Joseph B. Altemus, of the city of Philadelphia, Penn., of the second part, witnesseth:
    “ That the said party of the first part, for and in consideration of the sum of sixteen hundred and twenty dollars, principal, lawful money of the United States of America, well and truly paid by the said party of the second part to the said party of the first part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, enfeoffed, released, conveyed, and affirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, convey, and affirm unto the said party of the second part, their heirs and assigns, one undivided half interest in the following described three tracts of land, all of which are in Wise county, Virginia, to-wit:
    “ Birst tract lying near Big Stone Gap, on the north side of the main road running from Gladeville to Jonesville, and bounded as follows:
    “ Beginning at a stake in the middle of the aforesaid road, corner to James Graham’s land and stake, corner to the Thomas Davis land; thence north 13.8 min., west 83 poles to- a stake in the north line of the Preston land; thence with said line S. 54.4 min., west 187 poles to a black gum by the Elk Lick; thence S. 8If west 84 poles to a stake in said Preston line, corner to Graham’s land, and with the same; thence leaving the Preston line S. 28f, E. 42 poles to' a stake; thence S. 52-|-E. 28 poles and 10 links to a stake in the aforesaid main road; thence with said road, and leaving said line north 65-J, E. 36 poles to a stake; N. 61, E. 60 poles to a stake; north 644, E. 36 poles to a stake; thence north 68f, E. 100 poles to the beginning; containing 90 acres, more or less. The half of which (45 acres, more or less)-is hereby conveyed, it being part of the land winch was bought by the party of the first part from James Graham, and it being a part, of the land upon which the party of the first part now resides.
    “ Second tract adjoining the first on thp north, beginning at three white oaks on the Preston line JST. 19, W. 80 poles and 13 links to a dogwood in the north line of the George Gilly, deceased, survey; thence with the same S. 74, W. 21 poles to a small locust among rocks; thence leaving said line S. 8, E. 72 poles to a stake in a field; thence 1ST. 54, E. 2 poles to a stake; thence S. 8, E. 20 poles to a stake in the Preston line; thence with said line and with a line of the first named tract U. 54.4 min., E. 39 poles and 15 links to- the beginning; containing 15^ acres, more or less, and it being a part of the land which the party of the first part bought of Lewis and wife, one-half of which is hereby conveyed (7§ acres).
    “ Third tract adjoining second tract on the north, and on south side of Stone Mountain, beginning at a dogwood, comer to second named tract, thence with the line thereof and with the line of the George Gilly survey S. 74, W. 131 poles and 10 links to a chestnut oak in the Oolwell line; thence with said line JST. -J, W. 159 poles to a stake in the Olinger line near a birch; thence with said line U. 57, E. 34 poles to a chestnut and poplar; thence leaving said S. 78, E. 143 poles to a small hickory, comer to Preston Stidham’s and Thomas Davis’s land; thence S. 64¿, W. 74 poles and 15 links to a stake; thence S. 19, E. 80 poles to the beginning; containing 114 acres, more or less, one-half of which (57 acres only) is hereby conveyed, it being a part of the land which the parties of the first part bought of John Elkins, Sr., and wife. And part of two- other tracts of land lying and being in the county of Wise and State of Virginia, which two tracts are bounded as follows: The first tract beginning at a red oak and black gum on- a low spur on the south side of Walden’s Ridge in a line of the survey, a part of which is hereby conveyed; S. 10E. 20 poles to a chestnut, sourwood and locust; thence ET. 56], E. 292 poles to three chestnut oaks in a line of Creeche’s land; thence with line thereof ET. 37.45 min., E. 110 poles to a maple, small black oak and chestnut oak; thence ET. 72], W. 146 poles to- a chestnut; thence leaving said Oreeche’s line ET. 88], W. 98 poles to a stake in the Burkholder line in a hollow; thence with said ET. 64], E. 362 poles to a stake in the Preston line on the pine .ridge- above Horton’s mill; thence with said line S. 59.22 min., E. 252 poles to a pine in said line, corner to George Gilly’s land; thence with said Gilly’s line S. 2], W. 178 poles to a birch and poplar in a line of the land, a part of which is hereby conveyed; thence S. 50, W. 132 poles to a stake near William H. Stewart’s; thence H. 8|-, E. 140 poles to a stake; thence S. 70], E. 558 poles to the beginning, containing 642 acres, more or less; which tract of land was bought by the parties of the first part from James Graham and wife, and Frank Maggard and wife and J. H. Blair and wife, who were the heirs of J. C. Wells, deceased, and this tract of land of which this is a part is known as the J. C. Wells, deceased, 400-acre tract, it being patented in his name, but it is distinctly understood that there is only thirteen-twentieths of the above described boundary hereby conveyed, 417 acres conveyed.
    
      “ The second tract is bounded as follows:
    
      “ Beginning at a small birch on the branch that leads from L. M. Collier’s house; thence up the branch ET. 55], W. 120 poles to a maple, now gone, coiner to a survey made by Abel Collier; thence with a line thereof, ET. 1], E. 76 poles to- a stake in said line, and corner to- an entry made by Ori G. Collier; thence ET. 41], E. 144 poles to a bunch of chestnut sprouts and maple sprouts, another corner to- Ori G. Collier; thence ET. 8f, E. 160 poles to a stake, in a road on the top of the pine ridge that leads off from the dwelling-house- of Monroe A. Wells; thence with the top of said pine ridge ET. 55, W. 143 poles to a stake, in Monroe A. Wells’ land; thence S. 86, W. 140 poles to a large water oak on top of the Elk Enob, beginning corner to a 400-acre survey made by J. C. Wells, deceased'; thence with his closing line U. 70-J-, E. 523 poles to a chestnut oak in said line; thence S. 22, W. 648 poles to the beginning; containing 550 acres, more or less, out of which there is only one-half of one-half interest (137-J- acres) hereby conveyed. All of the foregoing tracts herein described we warrant with covenants of general warranty, except the last named, which is warranted specially.
    “ Together with all and singular the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments, and appurtenances to the same belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof, and also all of the estate, right, title, interest, property, possession, claim and demand whatsoever, both in law and in equity, of the said party of the first part of and to the said premises hereby conveyed, with the appurtenances.
    “ To have and to hold the said premises with all and singular the appurtenances unto the said party of the second part, their heirs and assigns, to the only proper use, benefit and behoof of the said party of the second part, their heirs and assigns forever; and the said J. B. E. Mills and Martha J. Mills, his wife, their heirs, executors and administrators do, by these presents, covenant, grant, and agree to and with the said party of the second part, their heirs and assigns, that we, the said J. B. E. Mills and Martha J. Mills, his wife, and their heirs, all and singular the hereditaments and premises hereinabove described and granted, and intended so to be, with the appurtenances, unto the said party of the second part, their heirs, and against us, the said J. B. E. Mills and Martha J. Mills, his wife, their heirs and assigns, and against all and every other person whomsoever, lawfully claiming or to claim the same or any part thereof.
    
      “ In witness whereof the said party of the first part to these presents do hereunto set their hands and seals, ■ dated the day and year first above written.
    
      “ Signed and delivered,”
    “ J. B. F. MILLS, [seal.] ”
    “ M. J. MILLS, [seal.] ”
    The appellee James claimed that the instrument of April 18, 1882, was a mere contract for a conveyance, and that the deed of Hovember Y, 1883, was the fulfilment of that contract. His own title was deduced from the same J. B. F. Mills. He claimed, through, successive conveyances, under a deed from Mills and wife to W. L>. Jones, bearing date July 25, 1885, of which the following is a copy:
    
      “ This deed, made this 25th day of July, 1885, between J. B. F. Mills and Martha J. Mills, his wife, parties of the first part, and "William B. Jones, party of the second part, witnesseth:
    “ That, whereas, the said J. B. F. Mills heretofore sold and conveyed to William D. Jones and Joseph B. Altemus an undivided half interest in a number of tracts of land and portions of tracts and undivided interests therein, which are described in the deeds of conveyance by the said Mills and wife to the said Jones and Altemus’ which are of record in the cleric’s office of the County Court of Wise county, to which reference is here made for a further and full description, by which conveyances the said Jones and Altemus became entitled to one moiety of the above recited lands and interests in lands and the said J. B. F. Mills retained the other moiety, and whereas the said J. B. F. Mills has this day sold to the said William D. Jones the entire interest in said lands retained by him under the aforesaid conveyances to Jones and Altemus. How, therefore, in consideration of the sum of eleven hundred dollars, paid by drafts on Philadelphia, the receipt of which is hereby acknowledged, the said J. B. P. Mills and Martha J. Mills, his wife, do grant unto the said "William L>. Jones, with covenants of general warranty as to each tract which was conveyed to the said Jones and Altemus, with general warranty, and with special warranty as to the remainder, their entire moiety and interest in all the tracts of land, and undivided portions of tracts of land which.they retained and did not convey to the said J ones and Altemus by the deeds of conveyance hereto executed by them, and of record in the clerk’s office of the County Court of Wise county, to which and all of which reference is here made for a fuller description of the land and interest in land hereby conveyed, all of which lies in Wise county, Va., near Big Stone Cap. This conveyance includes the land and interest in land which the said Mills owned jointly or in common with the said Jones and Altemus, after the execution of the said conveyance to them, all the title and interest which was retained by the said Mills, being now conveyed to and vested in the said William D. Jones, fully, firmly and complete as it was in the said J. B. P. Mills immediately after the execution of the said conveyances, which are here referred to and not set out for brevity. And the said J. B. P. Mills and Martha J. Mills, his wife, covenant with the said William D. Jones that they have the right to convey the said land to said grantee; that the grantee shall have quiet possession of the said lands, and that they will execute such further assimances of the said lands as may be requisite, and that they have done no act to encumber the said lands. The said J. B. P. Mills reserves to himself the crops raised upon the said lands this year.
    “ Witness the following signatures and seals: ”
    “ JOHN B. P. MILLS, [seal.] ”
    “MALTHA J. MILLS, [seal.] ”
    
      The ease turned largely on the proper construction of the instrument dated April 18, 1882. The other facts appear in the opinion of the court.
    
      H. S. K. Morrison and J. H. Fulton, for the appellant.
    
      R. T. Irvine, for the appellee.
   Riely, J.:

The determination of the matter in controversy in this case may he said to depend mainly upon the nature of the instrument of April 18, 1882. If it be not a deed of conveyance but an executory contract, which was fulfilled by the deed of November I, 1888, there is no error in the decree of the Circuit Court.

The instrument referred to has many of the characteristics of a deed of conveyance. It begins with the words, This indenture,” instead of “ This agreement,” or “ This contract,” which are the words generally used, where only a contract is intended. It also contains the operative words of a conveyance, have granted, bai’gained, sold * * * conveyed, and by these presents do' grant, bargain, sell * * * convey,” certain interests in the five tracts of land therein described.

In derogation of these characteristics of a conveyance, it specifies that, as “ to this last named tract (to-wit, tract !No. 5), the said Mills and wife give a special warranty deed, but to all the other tracts named a general warranty deed is to be made.” It then concludes with a formal clause __of general warranty of the title to all five tracts.

It is a rule of construction that, though a deed may in one part use the formal and apt words of a conveyance, yet if, from other parts of the instrument 'taken and compared together, it appears that a mere agreement for a conveyance was all that was intended, the intent shall prevail, for the intent, and not the words, is the essence of every agreement. Jackson v. Myers, 3 Johns. 388; Jackson v. Moncrief, 5 Wend. 26; Williams v. Paine, 169 U. S. 55; and Chapman v. Glassell, 13 Ala. 50; s. c., 48 Amer. Dec. 41.

In Williams v. Payne, supra, Mr. Justice Peckham, speaking for the court, said: “We agree generally that, although there are words of conveyance in praesenti in a contract for the purchase and sale of lands, still if, from the whole instrument, it is manifest that further conveyances were contemplated by the parties, it will be considered an agreement to convey, and not a conveyance. The whole question is one of intention, to be gathered from the instrument itself.”

And in a note to the case of Chapman v. Glassell, supra, p. 45, the learned annotator thus states the law: “ Words of present grant or present assurance, such as ‘have granted, bargained, sold, aliened, enfeoffed, released, and confirmed/ and words of like import, afford a presumption that an executed conveyance was intended, and that the title passed. But that presumption is not conclusive. Instruments containing these words are to be construed and interpreted the same as other instruments, and the presumption arising from the words themselves may be overcome by the presence in the instrument of other words which contemplate a future conveyance.”

Considering the whole of the instrument of April 18, 1882, and applying the recognized rule of construction, I am of opinion that it was only intended as an agreement for the sale of certain lands, and not a deed of conveyance. The words, “but to all the other tracts named a general warranty deed is to be made,” plainly manifest that the parties contemplated that a future conveyance was to be made.

The instrument of April 18, 1882, affords other evidence, especially when considered hi connection with the deed of November 7, 1883, which tends to support this view, and will be briefly adverted to.

. The appellant claims title to the lands in controversy through and under the instrument of April 18, 1882, and through and under the deed of November I, 1883, and rests its claim thereto upon the contention that the former, as well as the latter, is a deed of conveyance, and that they convey distinct interests in the said lands.

The instrument of April 18,. 1882, purports, in the granting part, that J. B. E. Mills and wife convey to W. D. Jones and Joseph B. Altemus, among interests in other lands, one undivided half interest in the “ Elkins ” tract of land, containing about one hundred and fifty acres, and one-half of seven-tenths of the tract of about six hundred and fifty acres on Walden’s Bidge, called the “ Wells ” patent.

The deed of November 1, 1883, from Mills and wife, conveys to the same parties interests in the same lands, and specifies that it conveys one undivided half interest in the “ Elkins ” tract of land, containing one hundred and fourteen acres, one-half of which (fifty-seven acres only) is thereby conveyed, and thirteen-twentieths of the tract on Walden’s Bidge (the “ Wells ” patent), containing six hundred and forty-two acres, of which only four hundred and seventeen acres are conveyed.

It thus appears that in the instrument of April 18, 1882, the description of the lands is in very general terms, and the quantity of each tract not accurately stated, but merely said to contain about so many acres.

In the deed of November I, 1883, these same lands are fully described by metes and bounds, and the acreage of each accurately given. They had then been surveyed, and the “ Elkins ” tract, which was supposed to contain about one hundred and fifty acres, had been ascertained to contain only one hundred and fourteen acres, and the “Wells” land, instead of six hundred and fifty acres, was found to contain six hundred and forty-two acres.

The original instrument is not in evidence, but it appears from a certified copy thereof, made from the deed book in the clerk’s office of the county court of Wise county and filed in the record, that though recorded, it was not acknowledged as is required of deeds of conveyance and other writings that are intended to be admitted to record, but was simply witnessed as to J. B. E. Mills, though not as to his wife; while the deed of November 7, 1883, recites the payment of. the purchase money, was duly acknowledged by the grantors for admission to record, and recorded.

Moreover, the deed of November 7, 1883, makes not the slightest reference to the writing of April 18, 1882, but wholly ignores it. It contains no statement or intimation that the interests conveyed by it are other and additional interests to those embraced in the instrument of April 18, 1882. If the latter was intended as a conveyance of the interests therein mentioned, it would have been most natural to have referred to. it in the deed of November 7, 1883, and specified that the interest thereby conveyed was the remaining moiety pf the “ Elkins ” or one hundred and fourteen acre tract, and the remaining thirteemtwentieths of the Wells ” land. The internal evidence afforded by this deed tends to confirm the construction that the instrument of April 18, 1882, was only a contract of sale, and not a deed of conveyance; that the deed of November 7, 1883, was in fulfilment thereof; and that the interests it conveys, to the extent that they are specified in the earlier instrument, are the same. The only difference between them, as respects the lands in controversy, is that the writing of April 18, 1882, only specifies a sale of one-half of seven-tenths of the “ Wells ” land, which is seven-twentieths thereof, while the deed of November 7, 1883, conveys thirteen-twentieths.

It appears from the record that Wells left five children, to whom the said land descended. Prior to April, 1882, Mills had bought from two of the children their interests, and from James Graham, who had become the owner of the other three interests, an undivided half thereof, thus making Mills the owner on April 18, 1882, of an undivided seven-tenths, of which he sold one-half to W. D. Jones and Joseph B. Altemus by the writing of that date. Subsequently, and prior to November 7, 1883, Mills acquired from Graham his remaining interest in the “Wells” land, amounting to six-twentieths, which, added to the seven-twentieths specified in the writing of April 18, 1882, makes the thirteen-twentieths conveyed in the deed of November 7, 1883, and left him as owner of the remaining seven-twentieths of the “ Wells ” land, and an undivided half interest of the one hundred and fourteen acres, or “ Elkins ” tract.

The subsequent conveyances under which the appellant claims title to the lands in controversy also tend to confirm the construction that the instrument of April 18, 1882, was only intended by the pai'ties as an agreement of sale, and not. a deed of conveyance.

On December 27, 1883, only a few weeks after the deed of November 7, 1883, from Mills to Jones and Altemus, and while these transactions were fresh in their minds, Jones conveyed to Altemus, Benson, and McGeorge, through whom the appellant claims, his undivided half of the interest of Altemus and himself in the one hundred and fourteen acre tract and his undivided -half interest of thirteen-twentieths of the “ Wells ” land. It is significant that he refers alone for a description of the lands, in which interests are conveyed by him, to the deed of November 7, 1883, and makes no reference whatever to the instrument of April 18, 1882, which would have been equally necessary and appropriate, if it had been a conveyance of the interests specified therein, and not merely a contract of sale.

Altemus was .one of the grantees in this deed, and the half owner with Jones of the interests in lands thereby-conveyed; and if they had acquired from Mills any greater interest than that whereof Jones was purporting to convey an undivided half, he would certainly have required Jones to include his full one-half of the interests owned by them. -

And in the immediate deed to the appellant, of October 1, 1892, under which it claims the lands in controversy, and in which Joseph B. Altemus was one of the grantors, the interests conveyed are decribed as being “ twice the amount conveyed by the said William D. Jones and wife ” to Altemus, Benson, and McGeorge; “ that is to say, all the estate, right, title, and interest of the said Joseph B. Altemus and William D. Jones,” in and to said lands.

It thus satisfactorily appears to my mind that the appellant is the owner of only an undivided thirteenth-twentieths of the “ Wells ” land, and a moiety of the one hundred and fourteen acre, or “Elkins” tract, and that Mills, on July'25, 1885, was the owner of the other moiety of the “ Elkins ” tract, and the remaining seven-twentieths of the “Wells” land, when he conveyed the same by deed of that date to William D. Jones, who, by the deed of September 8, 1889, conveyed the same to the appellee.

I am of opinion, for the foregoing reasons, that there is no error in the decree of the Circuit Court, and the same must be affirmed.

The other judges concur in the opinion of Biely, J.

Affirmed.  