
    *Midlothian Coal Mining Co. v. Finney & als.
    January Term, 1868,
    Richmond,
    1. Contracts -Latent Ambiguities — Parol Evidence.— By deed of April 1, 1861, A leased certain coal property to B until December 31, 1864; and by deed of November 11, 1861, endorsed on the first, and declared to be a part of it, he leased other adjoining- coal property to B for the same time. By contract of September 4, 1864, A and B agree to renew the lease of April 1. 1861, for five years from the 1st of January, 1865. A question arising whether the lease of the property mentioned in the deed of November 11.1861. is renewed as being part of the lease of April 1,1861. Held: This is a latent ambiguity, and parol evidence is admissible to prove what was the intention of the parties.
    2. Appellate Practice — Case at Bar. — The court below having decided the case on the construction of the deeds, and there having been little enquiry before the commissioner as to the intention of the parties. upon the reversing of the decree, the cause will be referred to a commissioner, with liberty to both parties to introduce testimony.
    In May, 1866, a decree was made in three causes depending in the Circuit Court of Henrico county, one in the name of Finney and others against Heth’s administrator and others, one in the name of Gwathmey’s executor against the same defendants, and one in the name of Barksdale and others against the same defendants, by which a commissioner of the court was directed to enquire and report to the court the amount due in the present currency from the Mid-lothian Coal Mining Company and others, under leases by the receivers of the court in said ^causes, to said lessees of the coal land and other property of the Chesterfield Coal and Iron Mining Company embraced in said leases. In pursuance of this decree, Commissioner Evans, in October, 1866, made a report, in which he charged the Midlothian Coal Mining Company, among other items, with $2,250 of principal and $270 of interest, as rent of what is called the Swann pit, from the 20th of November, 1861, to the 20th November, 1866, at $450 per annum. He returned with his report the leases under which the rents were held by him to be due; and also the deposition of J. E. Morrisett, the receiver who had made the leases to the Midlothian Company, under which the question in this cause arises. On the 26th of October, 1866, the court made a decree confirming the report, and directing the Midlothian Coal Mining Company to pay into the National Exchange Bank the several sums reported to be due from the Company.
    
      On the 2d of November, 1866, the Midlo-thian Coal Mining- Company, with the consent of the (parties in these causes, filed their petitions in the causes, and also exceptions to the report of Commissioner Evans. The first exception is — Because they are charged with rent at the rate of S4S0 per annum for five years for the Swann pit, whereas, as they insisted, the lease of that pit was only from the 20th of November, 1861, until the end of the year 1864.
    It appears that, by a deed of lease bearing date the 1st day of April, 1861, James Morrisett, as receiver of the court, leased to the Midlothian Coal Mining Company certain coal lands of the Chesterfield Coal and Iron Mining Company, described in the lease; and the lease was to continue until the 31st of December, 1864. This lease did not embrace the Swann pit, which was the property of the same Company. At this time the Midlothian Company held other parts of said lands under a previous lease ^executed by Farrar, a previous receiver in these causes, which would terminate at the same time. On the 20th of November, 1861, Morrisett made another lease to the Midlothian Company, which was endorsed on or added to tljat of the 1st of April, in which it is said that, in addition to the privileges, granted to the said lessees by the foregoing lease bearing date the 1st of April, A. D. 1861, the said lessees shall have the lilte privileges of working the pit known as Swann’s pit, and of raising coal from the same, subject to the same conditions and restrictions as are prescribed in the foregoing lease in respect of the workings therein contemplated, and subject also to these conditions; and then sets out certain provisions as to what the Company should not or should do; and containing a covenant by the lessee that the annual rent of said Swann’s pit shall not be less than four hundred and fifty dollars. The last provision in this deed is: 3. This agreement being in addition and supplement to the foregoing lease, shall be taken and considered as a part thereof; and it shall be in the power of the said receiver, or of his successor in office, to terminate the foregoing lease, and also .this agreement as a part thereof, upon giving three months’ notice to the said lessees.
    By another deed bearing date the 1st of September, 1864, Morrisett and the Midlo-thian Company agree to renew and extend the lease granted by Farrar, and also the lease of Morrisett of the 1st of April, 1861, for five years from the 31st of December, 1864. This deed commences by reciting the existence of the lease by Farrar by its date, and "the one from Morrisett as dated the 1st of April, 1861, and then says, that the said parties, Morrisett and the Company, have agreed and do agree to renew and continue the said leases for the term of five years from the said 31st of December, 1864, to the 31st of December, 1869, upon the same terms and conditions as *are set forth in the two existing' leases, in all respects, except so far as the same are varied by what follows in this deed. The deed then proceeds to provide what rent shall be paid per bushel upon the coal raised.
    Morrisett, in his deposition, which was taken by the commissioner and returned with his report, says: That the Midlothian Coal Mining Companj had paid no rent for the Swann pit under the lease of April 1st, 1861. They expended something considerable in cleaning out and drifting the pit, though they raised no coal from it. As he understood the purpose of the Midlo-thian Company, it was to keep other persons from renting and working the Swann pit. It is just and fair, however, to say, that the Midlothian Company tried their best to raise coal from the Swann pit, and failed, because the coal was not there to raise.
    The petition of the Midlothian Coal Mining Company, after referring to the Commissioner’s report and the leases hereinbe-fore mentioned, says that the report shows that there was no evidence whatever before the Commissioner of any holding over of the Swann pit by the Midlothian Company, after the 31st of December, when the lease of the property expired by its terms; and they aver and are prepared to prove, that no such evidence was in fact before him, and that none such could have been before him, because none such existed. They insist that the lease of April 1st and November 20th, 1861, were distinct leases, and the renewal of the first did not renew the last. That if the terms of the lease are ambiguous, so as to admit parol evidence to show what was the intention of the parties in taking the renewed lease of the 1st of September, 1864, the evidence of Morrisett should have led the Commissioner to an inference opposite to that he has drawn. And they aver that they never intended to renew the lease of the Swarm pit, and never imagined they had done *'so. That in fact, long before the first lease had expired, they withdrew their machinery, abandoned the possession of the pit, and never afterwards interfered with it in any manner whatever; and though they remained lessees until the first lease expired, and liable, as such, for the rent, yet after the expiration of that lease, they never asserted or claimed any title or interest whatever in the Swann pit, never exercised any control over it, or had any sort of possession of it; nor were they aware, until Commissioner Evans’ report was made, that any person regarded them as tenants of that pit, or responsible for rent in any way or to any extent. And all these allegations they are prepared to establish by proofs, if an opportunity is afforded them to do so. This petition was sworn to by the President of the Company.
    On the 6th of November, 1866, the court, by consent of the parties, made a decree, that the operation of the decree confirming the report of Commissioner Evans, be suspended so far as it relates to the sum of $2,250, principal money, and $270 interest, reported as the rent due from the Midlo-thian Company for the Swann pit; but the cause coming on again to be heard on the 30th of April, 1867, the court was of opinion that, according to the true intent of the contracting parties, the lease of the Swann pit was incorporated with and made part of the original lease of the 1st of April, 1861; and that the whole lease was renewed, including the Swann pit as a part of the demised premises, by the lease of the 1st of September, 1864. The decree of the 6th of November, 1866, ' was therefore set aside, and the Commissioner’s report was again confirmed. And the Midlothian Coal Mining Company obtained an appeal to this court.
    N. P. Howard, for the appellants.
    A. Johnston, for the appellees.
    
      
      Ambiguities — Parol Evidence. — As to when extrinsic evidence, and what extrinsic evidence, is admissible to aid in the interpretation of valid written instruments, the Virginia decisions seem to be somewhat at sea; and while the cases are full of 'dicta, and general statements, the principles have never been fully worked out. Some cases lay down the proposition that the only exception to the rule excluding parol evidence as to the intention of the writer is in cases of latent, ambiguities, i. where, for anything appearing on the face of the writing the intention is certain, but there is some collateral matter áe hors the writing that causes ambiguity; and that, under such circumstances, extrinsic evidence is admissible to show the existence of the latent ambiguity and to remove it and disclose the author’s meaning. This proposition is approved in Hawkins v. Garland, 76 Va. 149; Burke v. Lee, 76 Va. 386; Senger v. Senger, 81 Va. 687; Hubble v. Cole, 85 Va. 87, 7 S. E. Rep. 242; Gatewood v. Burrus, 3 Call 198.
      But in Roy v. Rowzie, 25 Gratt. 599 (approved in Wilson v. Perry, 29 W. Va. 169, 1 S. E. Rep. 323), the rule was laid down that where the person or object or subject referred to in a bequest is uncertain, or does not answer precisely the description given it in the will, or where there are two more objects or subjects which answer equally well the description, resort must be had to parol evidence and the surrounding circumstances to show what the testator intended by the expressions which he used; and if such intention is so ascertained with sufficient certainty the bequest is valid.
      The kinds of extrinsic evidence that can be offered in aid of the interpretation of a written instrument may be divided into two great classes: first, the surrounding facts and circumstances; second, the author’s declarations of intention.
      In a learned and masterly paper on “Extrinsic Evidence in Respect to written Instruments" read before the Virginia State Bar Association, August 2, 1893, by Prof. C. A. Graves, of the University of Virginia, it was said, at p. 12: “Evidence of the surrounding facts and circumstances is always admissible in aid of the interpretation of the will — i. e., as explanatory of the meaning of the words as used by the testator." Among the authorities to sustain this proposition, he cites Smith v. Bell, 6 Peters 74 (opinion by Chibe Justice Marshall); Colton v. Colton, 127 U. S. 300; Hatcher v. Hatcher, 80 Va. 169; Miller v. Potterfield, 86 Va. 876, 11 S. E. Rep. 486. See also, Shelton v. Shelton, 1 Wash. 56; Hooe v. Hooe, 13 Gratt. 247; Williamson v. Coalter, 14 Gratt. 398.
      He then proceeds to lay down the proposition that the judicial expositor has the right to invoke the aid of the writer’s declaration of intention only in the case of “equivocation;" i. e., where the words in the writing describe well but equally well two or more persons, or two or more things, and such declarations are offered to show which person or which thing was meant by the writer, i. e., by the words in the writing as used by him. Patch v. White, 117 U. S. 211, 217; Senger v. Senger, 81 Va. 687, 695; Wootton v. Redd, 12 Gratt. 196, 208.
      At page 29, he says: “The maxim (Bacon’s maxim, ambiguitas verborum latens verifleatione suppletur; nam quod ex facto oritur ambigumm, varificatione facti tolli-tur) itself implies that only latent ambiguities are holpen by averment; and the commentary confirms this by expressly declaring that patent ambiguities are never thus holpen. And the cases are to this day full of dicta to the effect that patent ambiguities are beyond the aid of extrinsic evidence; and even some of the decisions profess to proceed on this principle. But it must be manifest on a moment’s reflection that the fact that a difficulty is apparent on the face of a writing is not of itself sufficient to bar the door against extrinsic evidence explanatory of the writer’s meaning; and that the same doctrines should apply to all ambiguities, whether patent or latent, admitting evidence of the facts and circumstances in all cases, and of declarations of intention in the one case of equivocation. And that this is the law as to ‘facts and circumstances’ to explain a patent ambiguity is established by the authorities; (see Wigram Ext. Evid. Pl. 80, 203; 1 Jarm. Will, p. 745; Browne on Parol Evid., §§ 49, 126; Colpoys v. Colpoys, Jacob 451; Golbet v. Beachy, 3 Sim. 24;) and there are not wanting decisions directly in point that in the case of a true equivocation apparent on the face of a will declarations of intention are also admissible; and the fact that the equivocation is patentisimmaterial. Thus in Doe d. Gord v. Needs, 2 M. & W. 129, the will showed on its face that there were two George Gords, viz.: George, the son of George Gord, and George, the son of John Gord. Then followed a devise to “George Gord the son of Gord” — thus making a patent ambiguity, and yet it was held that declarations of the testator were admissible; and PARKe, B., speaking for the court, repudiated the idea that thefact that the ambiguity was patent could affect the rule which permits extrinsic expressions of intention when the words of the will describe well, but equally well, two or more persons or things. And so the same effect is the case of Doe v. Morgan, 1 Cr. & M. 235. And see Hill v. Felton, 47 Ga. 455 (15 Am. Rep. 643).
      “It seems, then, notwithstanding Bacon’s maxim, that there is at the present day no real difference in the rule of law governing patent and latent ambiguities, and the most careful text-writers avoid the use of the terms altogether. In the language of Professor Thayer, from whom I have above quoted (6 Harv. Law Review 424), ‘Ambiguities or any other difficulties, patent or latent, are all alike as regards the right and duty to compare the documents with extrinsic facts, and as regards the possibility that they may vanish when this is done. As to the resort to direct statements of intention in the one case of equivocation, viz.: where there are more than one whom the name or description equally fits, the right to resort to these declarations in such cases in no way depends on the difference between what is patent and latent.’ ”
    
   *JOYNES J.

Upon the face of the contract of September 1, 1864, there is no ambiguity. It recites that there 'are in existence two leases, which will expire on the 31st day of December, 1864 — one dated November 11, 1854, the other dated April 1, 1861 — and provides for a renewal of these leases for a term of five years, upon certain specified terms. But when we come to apply this contract to the subject matter, it appears that on the 20th November, 1861, a paper was executed containing a lease of the Swann pit until the 31st day of December, 1864, which paper refers to the lease of April, 1861, and• describes itself as “an addition and supplement” to the lease of April 1, 1861; and declares that it “shall be taken and considered as a part thereof.” A question then arises, whether the parties intended, by the contract of September 1, 1864, to renew the lease of April 1, 1861, as it originally stood, so as to exclude the Swann pit, or to renew that lease along with the “addition and supplement” of November 20, 1861, “as a part thereof,” so as to embrace the Swann pit. This presented a case of latent ambiguity, for the removal of which it was competent to show by parol evidence, what was the actual intention of the parties. The lease of November 20, 1861, was called part of that of April, 1861, so as to subject it, without the necessity of repetition, to the same conditions ; but it was still actually distinct from it, inasmuch as it related to different property, was made at a different time, reserved a distinct rent, and was, in some respects, subject to different conditions.

The only parol evidence in this case was the deposition of Morrisett, the lessor. He testified that the appellants expended a considerable sum in cleaning out and drifting the Swann pit, though they raised no coal from it; that they tried their best to raise coal from that pit, but failed, “because the coal was not there to raise.” He further said *that he understood that the purpose of the appellants was to keep other persons from renting and working the Swann pit.

Though not so stated in terms, this witness seems to have had reference to what was done by the appellants during the original term, and to the motives which induced them to obtain the original ■ lease of the Swann pit. It cannot be supposed that they would allow the whole term of the original lease to expire without ascertaining whether or’ not coal could be found in that pit; and after ascertaining that no coal was there, they would have had no motive to keep other persons from renting and working it.

This evidence, given by the lessor himself, affords strong ground to believe that the parties did not intend to embrace the Swann pit in the contract of September 1, 1864. The appellants had no motive to renew the lease of that pit; the former lease had been a dead loss to .them of the rent .and of the money expended in cleaning out and drifting the pit. A renewal of the lease- must have entailed a like loss; and these facts were well known to the lessor.

The appellants excepted to the report of the Commissioner charging them with rent of the Swann pit under the contract of renewal, and supported the exception by an affidavit. This affidavit stated, among other things set forth by the appellants in a petition, that the appellants ' ‘never intended to renew the lease of that pit, and never imagined that they had done so; that in fact, long before the first lease expired, they withdrew their machinery, abandoned the possession of the pit, and never after-wards interfered with it in any manner whatever; and though they remained lessees until the first lease expired, and liable, as such, for the rent, yet after the expiration of that lease, they never asserted or claimed any title or intere’st in the Swann pit; never exercised any control over it, or had an3 *sort of possession of it; neither were they aware, until the report of Commissioner Fvans was made, that any person regarded them as tenants of the Swann pit, or responsible for rent in any way or to any extent. And all these allegations they are prepared to sustain by proofs, if the opportunity be afforded them to do ,'so. ” The appellants, in their petition, asked that the report of the Commissioner might be corrected by excluding the rent charged for the Swann pit, and that, if necessary, the report might be recommitted for that purpose, with leave to the petitioners to adduce proof of the allegations made in their petition.

The Circuit Court overruled the exception and confirmed the report, being “of opinion that, according to the true intent of the contracting parties, the lease of the Swann pit was incorporated with and made a part of the original lease of April 1, 1861, and that the whole lease was renewed, including the Swann pit, as part of the demised premises, by the lease of September 1, 1864.” It would seem from this, that the court decided the case upon the construction of the several leases, and without reference to the parol evidence. For the reasons already given, I think the case must be decided upon the parol evidence, and that it is at least doubtful, from the evidence in the record, whether the parties did intend to embrace the Swann pit in the contract of renewal.

But it is evident that the parties did not go fully into the parol evidence bearing on this question. It is alleged by the appellants, in their petition, that they did not do so themselves, and they cannot complain if an opportunity is given to the other parties to adduce further evidence.

I am, therefore, of opinion that the Circuit Court, instead of overruling the exception of the appellants, should have recommitted the report, .with instructions to the Commissioner to enquire whether it was the actual intention of the parties to embrace or to exclude the Swann *pit in the renewed lease, and with leave to all parties to take further evidence on that subject.

I think the decree should be reversed.

The other judges concurred in the opinion of Joynes, J.

Decree reversed.  