Present: Hassell, C.J., Keenan, Kinser, Lemons, Agee, and
Goodwyn, JJ., and Carrico, S.J.

DAVID DUTY
                                             OPINION BY
v.   Record No. 071542            SENIOR JUSTICE HARRY L. CARRICO
                                            June 6, 2008
MARGARET J. DUTY

                FROM THE CIRCUIT COURT OF RUSSELL COUNTY
                         Michael L. Moore, Judge

      This litigation was commenced when Margaret J. Duty filed in

the trial court a bill of complaint against David Duty, praying

for a determination of the rightful owner of a parcel of land in

Russell County containing 0.521 acres. 1   In a final order, the

trial court determined that Margaret Duty was the lawful owner of

the property.    We awarded David Duty this appeal.

      The case was heard upon an “Agreed Written Statement of

Facts,” which shows that Margaret Duty received a deed to the

0.521-acre tract from W. B. Gray and America Virginia Gray

dated May 16, 1973.    The deed recited a consideration of

$1,000.00 and was recorded September 13, 1973.    The deed

described the property as follows:

      BEGINNING at a point in the middle of Little Cedar Creek,
      corner to Maggie Duty lands; thence leaving said Creek, and
      with the line of Maggie Duty, in a northwesterly direction
      101 feet to the center of Secondary Rt. 658; thence with the
      center of said road as it meanders in a southwesterly
      direction approximately 514 feet to a point where said
      secondary road intersects with U.S. Route 19; thence with the
      northern boundary line of U.S. Route 19 in an easterly

      1
       Although the parties bear the same surname, the record does
not disclose the nature of their relationship, if any.
     direction to the center of said Little Cedar Creek; thence
     with the center of said Creek as it meanders in a
     northeasterly direction to the BEGINNING corner, containing
     0.521 acres, more or less.

     The deed contained no recitation concerning derivation of

title.   Attorneys in a law firm in which the daughter of Margaret

Duty was a paralegal conducted a search of the Russell County land

records and were unable to determine the source of title to the

Grays, Margaret Duty’s grantors.

     To establish the source of David Duty’s title, his counsel

introduced an exhibit entitled “David Wayne Duty Chain of Title,”

beginning with a deed dated November 30, 1938, and recorded

December 1, 1938, from W. H. Fogleman, single, to Grace Garrett

conveying, in consideration of the sum of $50.00, a one-acre tract

of land described as follows:

          BEGINNING at a planted stone a corner to the lands of
     Arthur McReynolds and the School House lot, thence in a
     northeastern direction with said Arthur McReynolds’ line to
     the new State highway leading from Lebanon to Hansonville;
     thence along the southwestern side of said new State Highway
     to a stake at the new bridge across Little Cedar Creek,
     thence a straight line in a southwestern direction to the old
     State highway leading from Lebanon to Hansonville, thence in
     a northwestern direction along the north eastern side of said
     old State highway to a water gate across said creek, and a
     corner to the school house lot, thence in a north eastern
     direction with said school house lot line to the south
     eastern corner of the same; thence in a north western
     direction and with said school house lot line to the point of
     beginning, and containing one (1) acre, more or less, but is
     sold by the boundary and not by the acre.

This deed, like Margaret Duty’s deed from the Grays, did not

recite any derivation of title.


                                   2
     The next deed in David Duty’s “Chain of Title” is dated

February 4, 1975, and recorded February 5, 1975, some seventeen

months after recordation of Margaret Duty’s deed from the Grays.

In the 1975 deed, Grace Litton, widow, formerly Grace Garrett, 2 in

consideration of the sum of $500.00, conveyed a 0.521-acre parcel

to Bonnie Lou Gibson.    The deed described the parcel with the same

description that was used in the deed conveying the 0.521 parcel

from the Grays to Margaret Duty but did not recite any derivation

of title.

     The final entry in David Duty’s “Chain of Title” was a deed

to him from Bonnie Lou Gibson dated October 4, 2004, and recorded

the same date, conveying a 0.521-acre tract of land in

consideration of “the love and affection which the party of the

first part has for the party of the second part.”   The deed used

the same description for the 0.521-acre parcel as was used in the

deeds from the Grays to Margaret Duty and from Grace Litton to

Bonnie Lou Gibson and recited that it was “the same property

conveyed unto Bonnie Lou Gibson . . . by deed dated February 4,

1975, which said deed is of record in the Russell County Circuit

Court Clerk’s Office.”




     2
       A list of heirs of W. H. Fogleman, deceased, was attached to
David Duty’s “Chain of Title” showing Gracie Garrett Litton as
Fogleman’s niece.

                                   3
     After entry of the final order finding Margaret Duty to be

the lawful owner of the property at issue, David Duty filed a

motion to vacate the order.   The trial court denied the motion.

     On appeal, David Duty argues that the trial court erred in

finding that Margaret Duty was the valid titleholder of the land

in dispute.   Citing Hulvey v. Hulvey, 92 Va. 182, 23 S.E. 233

(1895), David Duty maintains that because the Grays’ deed to

Margaret Duty did not identify their source of title, they held no

title and could not convey any title to her.

     David Duty argues further that, under Code § 55-105, “[a]

purchaser shall not . . . be affected by the record of a deed or

contract made by a person under whom his title is not derived.”

In this case, David Duty concludes, his predecessor-in-title,

Bonnie Lou Gibson, was a bona fide purchaser for value without

notice and her title to the 0.521-acre tract was unaffected by the

Gray-to-Margaret Duty deed because it was not in Bonnie Lou

Gibson’s chain of title.

     The trial court, however, made a finding to which David Duty

has not assigned error.    The court found David Duty had

acknowledged he knew “in the 1980s” that Margaret Duty had a deed

to the property, such knowledge coming, of course, prior to the

recording in 2004 of David Duty’s deed to the property.

Generally, “a purchaser with notice from a purchaser without

notice takes a good title.”    Guss v. Sydney Realty Corp., 204 Va.


                                   4
65, 72, 129 S.E.2d 43, 49 (1963) (internal quotation marks

omitted).   But, for this rule to apply, a purchaser with notice

from a purchaser without notice must be a purchaser for value.

See Richardson v. AMRESCO Residential Mortgage Corp., 267 Va. 43,

51, 592 S.E.2d 65, 70 (2004) (citing Guss, 204 Va. at 72, 129

S.E.2d at 49).   Here, David Duty’s notice of Margaret Duty’s deed,

coupled with the fact he is not a purchaser for value, having

acquired his deed as a gift, refutes his entitlement to stand in

the shoes of Bonnie Lou Gibson, his purported predecessor-in-title

and purchaser-for-value without notice.       See Richardson, 267 Va.

at 52, 592 S.E.2d at 70.

     A further difficulty with David Duty’s argument was pointed

out by the trial court in its final order.      After setting out the

description of the 0.521-acre tract, the court held “[t]here was

insufficient evidence to establish the source of the above

described land to either [Margaret Duty’s] deed or the predecessor

in title to [David Duty’s] deed.”       To establish the source of

title to Bonnie Lou Gibson, David Duty’s predecessor-in-title,

David Duty relies on the 1938 deed from W. H. Fogleman to Grace

Garrett, which, like the 1973 Gray-to-Margaret Duty deed, did not

identify the grantor’s source of title.

     Finally, the trial court found that David Duty had not

established that the property described in the 1975 deed from

Grace Litton to Bonnie Lou Gibson was the same property described


                                    5
in the 1938 deed from W. H. Fogleman to Grace Garrett, later Grace

Litton.   The trial court found further that David Duty had not

provided any proof that the land referenced in the 1938 deed had

been partitioned into separate plots, nor had he provided any

explanation of the disparity in the size of the parcels described

in the 1938 and 1975 deeds.

     David Duty argues that the trial court placed the burden of

proof on the wrong party; it was not his duty to establish the

fact that the property described in the 1938 and 1975 deeds was

identical or that the land described in the 1938 deed had not been

partitioned; it was Margaret Duty’s burden to prove these matters.

     We cannot find that the trial court made any ruling on the

burden of proof issue or that David Duty objected to the ruling if

it was made.   Be that as it may, David Duty introduced the 1938

deed into evidence; in doing so, he vouched for its contents and

its authenticity; and he cannot complain that it may have been

used to the benefit of his adversary.   See Seaboard Airline Ry. v.

Chamblin, 108 Va. 42, 50, 60 S.E. 727, 730 (1908).

     In any event, David Duty states he argued in the trial court

that the property described in the two deeds was identical because

he showed that both deeds referred to the same natural and

artificial monuments, i.e., “Little Cedar Creek” and “new State

Highway” or “U.S. Route 19.”   However, the trial court’s response

to David Duty’s argument was a finding that “some of the landmarks


                                  6
referenced in the 1938 deed and all subsequent deeds were the same

because the land described in the 19[38] deed was located on

opposite sides of what is referred to as ‘Little Cedar Creek’[] to

the subject property thus sharing some landmarks.”    (Emphasis

added.)     David Duty does not even mention this finding, let alone

challenge it, and it stands as an undisputed holding that the

property described in the 1975 deed from Grace Litton to Bonnie

Lou Gibson was different property from the property described in

the 1938 deed from W. H. Fogleman to Grace Garrett, later Grace

Litton. 3

     Ultimately, the trial court expressed the view that Code

§ 55-96(A)(1) makes Virginia a “race notice” state.    Accordingly,

in its final order, after holding that the evidence was

insufficient to establish the source of title of the disputed

parcel to either Margaret Duty’s deed or the predecessor-in-title



     3
       In the trial court, counsel for David Duty introduced an
exhibit which he represented during oral argument before this
Court as being “a plat to the property” that refers to natural and
artificial monuments, i.e., “Little Cedar Creek” and “new State
Highway (U.S. Route 19),” that were also referred to in the
several deeds in issue. However, the plat, which is undated and
uncertified, does not show a 0.521-acre parcel or a one-acre
parcel but a tract of 0.31 acre without any indication of its
owner. The plat does show Little Cedar Creek bordering one side
of the 0.31-acre tract but there is no “new State Highway (U.S.
Route 19)” shown anywhere on the plat. When questioned about the
discrepancies during oral argument, David Duty’s counsel stated he
could not “explain anything about that plat, it was just a plat.”
We cannot explain it either and have not given it any
consideration.

                                    7
to David Duty’s deed, the trial court held that, because Margaret

Duty “was the first to record her deed with the Clerk’s Office of

the Circuit Court of Russell County,” she “is the valid title

holder of the above described land in dispute by nature of the

priority of her deed and shall have clear and free title from

Defendant, David Duty.”

     Finding no error, we will affirm the judgment of the trial

court.

                                                          Affirmed.




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