William J. Akers
Barry L. Bruce
Akers Law Office
Thomas W. White
Princeton, West Virginia Barry L. Bruce & Associates
Attorney for the Appellants
Lewisburg, West Virginia
Attorneys for the Appellee
Harold B. Wolfe, III
Princeton, West Virginia
Attorney for the Appellants
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. A circuit court's entry of summary judgment is reviewed de novo
Syllabus point 1, Painter v. Peavy
, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. When a prospective buyer of an interest in real estate has reasonable
grounds to believe that property may have been conveyed in an instrument not of record, he
is obliged to use reasonable diligence to determine whether such previous conveyance
exists. Syllabus point 1, Eagle Gas Co. v. Doran & Associates, Inc., 182 W. Va. 194, 387
S.E.2d 99 (1989).
3. A grantee in a conveyance of land, to be protected against a prior
unrecorded deed for the same property, and to a different person, must be a complete
purchaser, without notice of the prior deed, and have paid in full the purchase price for the
land purchased by him; but he will be protected to the extent of any purchase money paid
therefor before such prior deed is recorded. Syllabus, Alexander v. Andrews, 135 W. Va.
403, 64 S.E.2d 487 (1951).
4. A bona fide purchaser is one who actually purchases in good faith.
Syllabus point 1, Kyger v. Depue, 6 W. Va. 288 (1873).
The appellants, Harold B. Wolfe and Luther Ellison (hereinafter Mr. Wolfe
and Mr. Ellison, individually, or appellants collectively), appeal from an order entered
September 16, 2005, by the Circuit Court of Monroe County. By that order, the circuit court
denied the appellants' motion for reconsideration of its order granting summary judgment
to the appellee, Vips Alpizar (hereinafter Ms. Alpizar), and further denied the motion to
amend the complaint.
(See footnote 1)
On appeal, Mr. Wolfe and Mr. Ellison argue that the circuit court
committed error in granting Ms. Alpizar's motion for summary judgment. Based upon the
parties' arguments, the record designated for our consideration, and the pertinent authorities,
we affirm the decision by the circuit court.
FACTUAL AND PROCEDURAL HISTORY
In this case, the parties owned adjacent properties, which were used as farms
or as vacation homes. Mr. Wolfe and Mr. Ellison had a deeded easement through Ms.
Alpizar's property to reach their own land. Mrs. Brown was the previous owner of Ms.
Alpizar's property, which Ms. Alpizar purchased on November 28, 2001. The deed to the
land referenced a thirty-foot deeded right-of-way easement in favor of Mr. Wolfe and Mr.
Ellison. At the time of Ms. Alpizar's purchase, there was a bridge on her property. The
bridge is north of the easement, and, according to the record, Ms. Alpizar specifically
questioned Mrs. Brown about the bridge prior to purchasing the land. Mrs. Brown confirmed
that the bridge was north of the easement and that it would be solely Ms. Alpizar's bridge
when she purchased the land. Ms. Alpizar bought the land as a vacation spot and was only
on the property for a limited amount of time each year. As time passed, the bridge fell into
disrepair. Ms. Alpizar had it inspected, and, due to the nature of the deficiencies, she had it
Mr. Wolfe and Mr. Ellison filed a lawsuit alleging that Ms. Alpizar had no
right to remove the bridge and requesting that she be forced to rebuild the bridge. The
appellants claimed that the bridge was the only safe way for them to access their property;
thus, it should not have been removed. Moreover, the appellants claimed that they were each
a one-third owner in the bridge because they had entered into an agreement with Mrs. Brown,
the previous owner of the property who sold the land to Ms. Alpizar, for construction and
payment for the bridge.
(See footnote 2)
An affidavit submitted by Mrs. Brown denied having entered into
any such agreement and further denied having received any money from the appellants for
construction of the bridge.
This case was instituted in October 2004, seeking to enjoin Ms. Alpizar from
blocking the appellants' access to their property
(See footnote 3)
and seeking an order directing her to rebuild
the bridge. Appellants filed a motion for summary judgment, which they later withdrew.
Thereafter, Ms. Alipzar filed a motion for summary judgment, which was granted by order
entered August 26, 2005. This appeal follows the circuit court's denial of the appellants'
motion for reconsideration.
STANDARD OF REVIEW
The case before this Court on appeal follows the circuit court's denial of a
motion for reconsideration regarding a grant of a motion for summary judgment. In regard
to the motion for summary judgment, we have stated that [a] circuit court's entry of
summary judgment is reviewed de novo. Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451
S.E.2d 755 (1994). Thus, in undertaking our de novo review, we apply the same standard for
granting summary judgment that is applied by the circuit court:
'A motion for 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.' Syllabus Point 3, Aetna Casualty &
Surety Co. v. Federal Insurance Co. of New York, 148 W. Va.
160, 133 S.E.2d 770 (1963). Syllabus Point 1, Andrick v. Town
of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter, 192 W. Va. 189, 451 S.E.2d 755. Moreover,
[s]ummary judgment is appropriate where the record
taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, such as where the nonmoving party has
failed to make a sufficient showing on an essential element of
the case that it has the burden to prove.
Syl. pt. 4, Painter, id. We are also cognizant that [t]he circuit court's function at the
summary judgment stage is not to weigh the evidence and determine the truth of the matter,
but is to determine whether there is a genuine issue for trial. Syl. pt. 3, Painter, id. Mindful
of this applicable standard, we now consider the substantive issues herein raised.
On appeal to this Court, Mr. Wolfe and Mr. Ellison assign error to the circuit
court's decision to grant Ms. Alpizar's motion for summary judgment. The appellants argue
that there was an express easement created at the site of the bridge and, further, that a
prescriptive easement existed at the same site. Ms. Alpizar answers that the circuit court's
grant of summary judgment was appropriate because there was no writing conveying any
interest in land; thus, there was no express easement. Furthermore, Ms. Alpizar avers that
the appellants failed to meet the requirements to establish the existence of a prescriptive
Our analysis of this case forges a different path than the arguments set forth
by the parties. While we agree with the end result reached by the circuit court, we affirm its
decision based on a different legal theory than that espoused in its order.
(See footnote 4)
focused their attention on whether an express easement and/or a prescriptive easement
(See footnote 5)
existed at the location of the bridge crossing. However, we find neither analysis relevant as
the facts of this case necessarily require us to focus on the relationship between the parties
that are currently before this Court: Mr. Wolfe, Mr. Ellison, and Ms. Alpizar. Mrs. Brown,
the previous owner of Ms. Alpizar's land, is not a party before this Court. Thus, we must
determine in what context Ms. Alpizar's purchase of the land must be placed.
We begin by noting that W. Va. Code § 40-1-9 (1963) (Repl. Vol. 2004),
Every such contract, every deed conveying any such
estate or term, and every deed of gift, or trust deed 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, trust deed or mortgage may be.
The purpose of the statute is to protect a bona fide purchaser of land against creditors of the
grantor, and against other persons to whom the grantor might have undertaken to execute title
papers pertaining to the land embraced in the recorded instrument. Bank of Marlinton v.
McLaughlin, 121 W. Va. 41, 44, 1 S.E.2d 251, 253 (1939).
As we have previously explained, [w]hen a prospective buyer of an interest
in real estate has reasonable grounds to believe that property may have been conveyed in an
instrument not of record, he is obliged to use reasonable diligence to determine whether such
previous conveyance exists. Syl. pt. 1, Eagle Gas Co. v. Doran & Assocs., Inc., 182 W. Va.
194, 387 S.E.2d 99 (1989). As further reiterated, [i]n general a party without actual notice
may rely upon record titles in the office of the clerk of the county commission of the county
in which the land is located. Id., 182 W. Va. at 197, 387 S.E.2d at 102. We also have held
[a] grantee in a conveyance of land, to be protected
against a prior unrecorded deed for the same property, and to a
different person, must be a complete purchaser, without notice
of the prior deed, and have paid in full the purchase price for the
land purchased by him; but he will be protected to the extent of
any purchase money paid therefor before such prior deed is
Syl., Alexander v. Andrews, 135 W. Va. 403, 64 S.E.2d 487 (1951); See also Syl., in part,
United Fuel Gas Co. v. Morley Oil & Gas Co., 101 W. Va. 83, 131 S.E. 716 (1926) (To be
protected . . . against a prior unrecorded deed, one must be a complete purchaser, must have
had no notice of the prior contract or deed, and have paid all the purchase money for the land
purchased by him.).
A bona fide purchaser of land is 'one who purchases for a valuable
consideration, paid or parted with, without notice of any suspicious circumstances to put him
upon inquiry.' Stickley v. Thorn, 87 W. Va. 673, 678, 106 S.E. 240, 242 (1921) (internal
citations omitted). See also Syl. pt.2, in part, Hupp v. Parkersburg Mill Co., 83 W. Va. 490,
98 S.E. 518 (1919) ([T]he possession under the unrecorded deed is apparently consistent
with that of the grantor having record title to all of the land on which there is such concurrent
possession at different places, wherefore a purchaser from him is under no duty to prosecute
his inquiry as to the title beyond the record and the possession by the holder of the recorded
title.); Simpson v. Edmiston, 23 W. Va. 675, 680 (1884) ([A] bona fide purchaser is one
who buys an apparently good title without notice of anything calculated to impair or affect
it[.]); Black's Law Dictionary 1271 (8th ed.1999) (defining a bona fide purchaser as
[o]ne who buys something for value without notice of another's claim to the property and
without actual or constructive notice of any defects in or infirmities, claims, or equities
against the seller's title; one who has in good faith paid valuable consideration for property
without notice of prior adverse claims.). As previously held by this Court, and more
recently reiterated, '[a] bona fide purchaser is one who actually purchases in good faith.'
Syl. pt. 1, Kyger v. Depue, 6 W. Va. 288 (1873). Subcarrier Communications, Inc. v. Nield,
218 W. Va. 292, ___, 624 S.E.2d 729, 737 (2005).
In the case before us, Ms. Alpizar searched the title of the property and was
aware of the thirty-foot deeded right-of-way easement in favor of Mr. Ellison and Mr. Wolfe.
Nowhere in the recorded documents was there any mention of any interest in title to the
bridge. During purchase negotiations, Ms. Alpizar specifically asked Mrs. Brown about the
bridge located on the property. Mrs. Brown indicated that the bridge came with the purchase
of the land and that Ms. Alpizar would be the sole owner. At that point in time, Ms. Alpizar
became a bona fide purchaser for value without notice. Ms. Alpizar, in essence, was an
innocent purchaser and Mr. Wolfe's and Mr. Ellison's claims, even if valid, were
extinguished by an innocent purchaser's, i.e. Ms. Alpizar's, acquisition of the land. The
appellants have asserted no documentation of which Ms. Alpizar could have or should have
been aware that would have alerted her to the appellants' claims to the bridge. All parties
agree that the easement recorded in the deed transferring property title is not the location of
the bridge, as the bridge is far north of the actual easement. Furthermore, all parties concede
that the alleged easement at the bridge location was not recorded. Thus, there is no
documentation that would have alerted Ms. Alpizar to the appellants' claims to the bridge.
Moreover, the appellants' allegations of receipts evidencing an agreement
about the bridge fails because the alleged agreement was with the prior owner, Mrs. Brown,
and it is not alleged that Ms. Alpizar had any way of knowing of the agreement. Such
documentation was only presented at the point in time that the suit was filed, and was never
presented prior to Ms. Alpizar's land purchase nor filed in the county land records. Even if
the receipts are accurate, despite Mrs. Brown's challenges to their veracity, they are
irrelevant as to the case against Ms. Alpizar because she had no notice and no way to know
that any possible receipts existed. It is clear that Mr. Alpizar was a subsequent purchaser for
valuable consideration without notice. Therefore, summary judgment in favor of Ms. Alpizar
was proper, and the circuit court should be affirmed.
For the reasons set out in the body of this opinion, the order of the Circuit
Court of Monroe County, entered on September 16, 2005, is affirmed.