                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Gary D. Hoke and Barbara M. Hoke,                                            FILED
Defendants below, Petitioners                                            January 26, 2017
                                                                              released at 3:00 p.m.
                                                                            RORY L. PERRY, II CLERK
vs) No. 15-0972 (Monroe County 14-C-26)                                   SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

The Board of Education of the County of Monroe,
Plaintiff below, Respondent

                               MEMORANDUM DECISION

       The petitioners, Gary D. and Barbara M. Hoke, by counsel Barry L. Bruce, appeal the
August 28, 2015, order of the Circuit Court of Monroe County granting summary judgment
in favor of the respondent, The Board of Education of the County of Monroe (hereinafter
“the board”). The board, by counsel Justin R. St. Clair, argues in support of the circuit
court’s order.

       After carefully considering the parties’ written and oral arguments, as well as the
record on appeal and the applicable law, this Court finds no substantial question of law and
no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s
summary judgment order is appropriate under Rule 21 of the Rules of Appellate Procedure.

                              I. Factual and Procedural History

       On May 4, 2011, the board purported to sell an eight-tenths acre of real property,
known as the Second Creek School property, to Mr. and Mrs. Hoke for $201.00 by private
sale. Subsequently, the board determined that pursuant to West Virginia Code § 18-5-7(a)
(2016), the sale of this property should have been accomplished pursuant to a public auction
rather than a private sale.1 The board offered to return the Hokes’ purchase money and
expenses so that a public auction could be held, but the Hokes declined. As a result, the
board filed the instant declaratory judgment action in the circuit court seeking a ruling that
the 2011 deed to the Hokes was void and must be set aside.

     After the Hokes filed their answer to the board’s complaint, the board moved for
summary judgment. In response to that motion, the Hokes asserted they were already the


       1
           The applicable statutes are quoted in Section III, infra.

                                                 1

owners of the Second Creek School property even without the 2011 deed. They asserted
ownership through their predecessor-in-interest based upon a 1940 deed and a 1983 lease.

       In its order granting summary judgment in favor of the board, the circuit court ruled
that the 2011 deed to the Hokes was invalid because the sale did not comply with the
statutory public auction requirement. Furthermore, the court found no outstanding genuine
issue of material fact, and no merit, to the Hokes’ alternate claim of ownership. Because no
party could produce a valid deed of conveyance for the Second Creek School property, the
circuit court concluded that the board held title to the property by operation of the
“undisputed possession statute,” West Virginia Code § 18-5-6 (2016).

                                  II. Standard of Review

        The Hokes appeal the circuit court’s summary judgment order in this declaratory
judgment action. We apply a plenary standard of review to such matters. See Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of
summary judgment is reviewed de novo.”); Syl. Pt. 3, Cox v. Amick, 195 W.Va. 608, 466
S.E.2d 459 (1995) (“A circuit court’s entry of a declaratory judgment is reviewed de novo.”).
We are mindful that pursuant to Rule 56 of the West Virginia Rules of Civil Procedure,
“summary judgment should be granted only when it is clear that there is no genuine issue of
fact to be tried and inquiry concerning the facts is not desirable to clarify the application of
the law.” Painter, 192 W.Va. at 190, 451 S.E.2d at 756, syl. pt. 2, in part (citations omitted).

                                       III. Discussion

A. Validity of 2011 Deed

      The board filed this action to set aside the 2011 deed because the private sale to the
Hokes did not meet the requirements of West Virginia Code § 18-5-7(a). This statute
provides that unneeded county board of education property is to be sold to the highest
responsible bidder at a public auction:

              (a) Except as set forth in subsection (b) of this section, if at any time a
       county board determines that any building or any land is no longer needed for
       school purposes, the county board may sell, dismantle, remove or relocate the
       building and sell the land on which it is located at public auction, after proper
       notice and on such terms as it orders, to the highest responsible bidder.




                                               2

Id.2 This Court has held that a county board of education has only the powers granted to it
by statute and, accordingly, a deed made in violation of a statutory public auction
requirement is void and of no effect. Dooley v. Bd. of Educ. of Cabin Creek Dist., 80 W.Va.
648, 93 S.E. 766 (1917); accord City of Bluefield v. Taylor, 179 W.Va. 6, 9, 365 S.E.2d 51,
54 (1987) (reaffirming Dooley holding). Relying on this authority, the circuit court set aside
the board’s 2011 deed to the Hokes. On appeal, the Hokes do not challenge the circuit
court’s application of West Virginia Code § 18-5-7(a) and Dooley. After carefully reviewing
the law and the record evidence, we find no error in the circuit court’s ruling setting aside
the 2011 deed.

B. 1940 Hogshead-Reed Deed

      The Hokes’ appellate briefs address their other grounds for asserting ownership of the
Second Creek School property. Their claim is primarily based upon a July 1, 1940, deed
whereby J.E. Hogshead conveyed two large, adjoining tracts of land in Monroe County to
Aubrey F. Reed. The Hokes explain that they are the assigns of Aubrey F. Reed.3 The
Second Creek School property is situate within the boundaries of the tracts conveyed in the
1940 deed. However, the 1940 deed expressly reserved and excepted the Second Creek
School property, along with six other parcels, from the conveyance:

       There is excepted and not conveyed by this deed the following lots, tracts or
       parcels of land heretofore sold and conveyed by the party of the first part as
       follows . . .

       FIFTH: That certain lot or parcel of land conveyed, by the party of the first
       part to the Board of Education of Monroe County, by deed bearing date the
       ___ day ______, 19 __, and not yet of record and containing Eight Tenths
       (8/10) of an acre and bounded and described as follows:

       Beginning at a gum near the branch N 15 E 206 ft. to a fence post by a
       driveway and with the same S 65-1/2 E 160 ft. to a point in the middle of the
       draft road and with the same S 8-1/2 W 191 ft. to a point near the left hand
       side of the same and leaving the road N 81-1/2 W 137 ft. to a stake on the band
       of the above named branch and with the same N 47 W 50 ft. to the beginning.

       2
       The exception to the auction requirement set forth in West Virginia Code § 18-5-7(b)
does not apply in this case. See footnote seven, infra.
       3
         The appendix record reflects that in 1990, the Hokes purchased from Mr. Reed’s
estate the real property that Mr. Reed had obtained from Mr. Hogshead in 1940.

                                              3

       The Hokes argue that this reservation failed because it was not expressed in certain
and definite language. “‘In order to create an exception or reservation in a deed which would
reduce a grant in a conveyance clause which is clear, correct and conventional, such
exception or reservation must be expressed in certain and definite language.’ Syl. Pt. 2, Hall
v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961).” Syl. Pt. 4, Cottrill v. Ranson, 200 W.Va.
691, 490 S.E.2d 778 (1997). To support their claim of uncertainty, the Hokes note that the
date of the purported separate deed to the board was left blank in the 1940 Hogshead-Reed
deed. Moreover, no separate deed from Mr. Hogshead conveying the Second Creek School
property to the board was ever recorded with the Clerk of the Monroe County Commission,
and no such deed can be located. The Hokes argue that Mr. Hogshead transferred his
property to Mr. Reed using the boundary descriptions of the two tracts, and if the reservation
failed due to uncertainty, then the school property would necessarily have been included
within the conveyance to Mr. Reed. Accordingly, the Hokes contend that, as the assigns of
Mr. Reed, they are the owners of the Second Creek School property.

        The circuit court found no merit to the Hokes’ argument, and we agree. The
Hogshead-Reed deed very clearly and unambiguously excluded the Second Creek School
property from the conveyance to Mr. Reed. The deed expressly directed that “excepted and
not conveyed by this deed” was the land situate at the specific property description of the
school property. The absence of a date for the separate conveyance to the board did not
render this reservation ambiguous. Moreover, by using the past tense language “heretofore
sold and conveyed,” it appears the property had already been transferred to the board–thus
it could not have been Mr. Hogshead’s intention to convey it to Mr. Reed. When the parties
to a written instrument have expressed their intent in plain and unambiguous language, the
instrument is not subject to judicial construction or interpretation but will be enforced
according to the intent so expressed. See Syl. Pt. 4, Faith United Methodist Church and
Cemetary of Terra Alta v. Morgan, 231 W.Va. 423, 745 S.E.2d 461 (2013).

        For purposes of this case, it is immaterial that no deed from Mr. Hogshead to the
board was ever recorded. Recording is not a pre-requisite to the validity of a deed. See
Jones v. Wolfe, 203 W.Va. 613, 615, 509 S.E.2d 894, 896 (1998) (“The law in this State is
rather clear that a deed takes effect from its actual or constructive delivery. . . . Recording
of the deed is not critical”) (citations omitted). Although West Virginia Code § 40-1-9 (2014
& 2016 Supp.)4 protects a subsequent bona fide purchaser without knowledge when a deed


       4
           West Virginia Code § 40-1-9 provides:

              Every such contract, every deed conveying any such estate or term, and
       every deed of gift, or deed of trust or memorandum of deed of trust pursuant

                                              4

for a prior transfer was never recorded, this statute has no applicability here. The reservation
provision in the Hogshead-Reed deed clearly and unambiguously provided Mr. Reed with
written notice of the conveyance to the board.

       Furthermore, even assuming, arguendo, that Mr. Hogshead did not properly deliver
a deed for the Second Creek School property to the board, ownership of this property was not
vested in Mr. Reed. Rather, if the school property was not legally deeded to the board, the
clear and unambiguous reservation in the 1940 Hogshead-Reed deed would result in it being
retained by Mr. Hogshead. As the circuit court correctly ruled, Mr. Reed never had any
interest in the school property. As such, the Hokes cannot, as a matter of law, establish
ownership through the 1940 deed.

C. 1983 Lease to Monroe County Commission

        The Hokes also assert a reversionary interest in the Second Creek School property
through a June 14, 1983, lease. By 1983, the board was no longer using the Second Creek
School property as a school. For a yearly payment of one dollar, the Monroe County
Commission (hereinafter “the commission”) agreed to lease the school property for use as
a polling place or for some other public purpose.5

       The 1983 lease purports to be by and between the board, the commission, and Aubrey
F. Reed. The lease recites that the 1940 Hogshead-Reed deed conveyed two tracts of land
to Mr. Reed, and that the school property was excepted from the conveyance. However,
despite quoting the 1940 deed’s reservation provision, it appears the parties to the lease
assumed the Second Creek School property was conveyed to Mr. Reed by that deed.6 The


       to section two, article one, chapter thirty-eight of this code, or mortgage,
       conveying real estate shall be void, as to creditors, and subsequent purchasers
       for valuable consideration without notice, until and except from the time that
       it is duly admitted to record in the county wherein the property embraced in
       such contract, deed, deed of trust or memorandum of deed of trust or mortgage
       may be.

(Emphasis added).
       5
           The commission was not made a party in this case.
       6
        The parties to the 1983 lease may have been under the same misunderstanding
asserted by the Hokes herein, i.e., the incorrect belief that the reservation provision in the
1940 deed failed for uncertainty.

                                               5

lease further provides that when the Second Creek School property is no longer used for a
public purpose, it will “be returned” to Mr. Reed, or his heirs or assigns. It is undisputed
that, at present, the property is not being used by the commission as a polling place or for any
public purpose, so the Hokes assert that it reverts to them as Mr. Reed’s assigns.

       The circuit court did not expressly address the 1983 lease in its summary judgment
order. Nonetheless, in our plenary review of the uncontested record evidence, we can readily
dispose of this issue. The basis for the reversionary provision in the lease is the same basis
underlying the Hokes’ other argument: the claim that Mr. Reed obtained ownership of the
Second Creek School property through uncertainty in the 1940 deed. As we have already
concluded, this claim lacks merit. The plain and unambiguous reservation in the 1940 deed
removed the Second Creek School property from the conveyance to Mr. Reed.

        The language in the 1983 lease could not grant Mr. Reed, or his heirs and assigns, an
ownership interest that they did not already possess. First, it was an annual lease, not a
document transferring permanent legal ownership to either the commission or Mr. Reed.
Second, a county board of education may not convey an ownership interest in real property
to a private party without meeting the requirements of West Virginia Code § 18-5-7. In other
words, to bestow ownership on Mr. Reed, the board would have needed to sell the property
to him at a public auction. See W.Va. Code § 18-5-7(a); Dolley, 80 W.Va. 648, 93 S.E. 766.7
Accordingly, the 1983 lease is of no assistance to the Hokes’ claims.

D. Current ownership of Second Creek School property

      Upon determining that the Hokes could not establish ownership of the Second Creek
School property through their predecessor-in-interest Mr. Reed, and because no deed from


       7
        There is a limited exception to the auction requirement in West Virginia Code § 18-5­
7(b) allowing the original grantor of property, or the grantor’s heirs or assigns, to repurchase
property at the same price for which it was originally sold to a board of education. This
exception only applies to property in rural communities that was not originally sold to a
board of education in a voluntary arms length transaction for consideration approximating
fair market value. Id. The Hokes suggest that West Virginia Code § 18-5-7(b) has some
application to this case. We reject this assertion because Mr. Reed was never the grantor of
the Second Creek School property to the board. Moreover, there is no evidence regarding
how much the board may have paid for this property when it was originally obtained, so there
is no way to determine whether the sale was a voluntary arms length transaction
approximating fair market value.


                                               6

Mr. Hogshead to the board–or to anyone else–was produced for this property, the circuit
court turned to the “undisputed possession statute,” West Virginia Code § 18-5-6:

              The county board [of education] shall have title to any land or school
       site which for five years has been in the undisputed possession of the county
       board or any board of education of a magisterial district, or subdistrict, or
       independent district, and to which title cannot be shown by any other claimant.
       Such land shall be held and used for school purposes, as provided by section
       eight of this article.

The parties acknowledge that the board possessed the Second Creek School property, and
used this property as a public school, for many decades. Given the absence of a recorded
deed conveying the school property to anyone, and because no claimant has shown title to
the property, the circuit court concluded as a matter of law that title to the Second Creek
School property is vested in the board by operation of West Virginia Code § 18-5-6. After
reviewing the appendix record and the parties’ arguments, we agree with the circuit court’s
conclusion. If the commission no longer desires to lease this property, and the board intends
to dispose of the property, then the board must abide by the requirements of West Virginia
Code § 18-5-7.

       For the foregoing reasons, we affirm.

                                                                                  Affirmed.

ISSUED: January 26, 2016

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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