Shaheen v. County of Mathews

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

FREDERICK J. SHAHEEN, ET AL.

v. Record No. 021350 OPINION BY JUSTICE CYNTHIA D. KINSER
April 17, 2003
COUNTY OF MATHEWS, ET AL.

FROM THE CIRCUIT COURT OF MATHEWS COUNTY
William H. Shaw, III, Judge

Frederick J. Shaheen and Susan L. Shaheen challenge

the circuit court’s judgment permitting the County of

Mathews and the Board of Supervisors of Mathews County to

withdraw admissions under Rule 4:11(b) and affirming an

easement in a landing and road for the benefit of the

public. Because the admissions effectively eliminated

presentation of the case on its merits and the Shaheens did

not show that they would be prejudiced in maintaining their

defense on the merits, we will affirm the circuit court’s

judgment on that issue. We will also affirm the court’s

judgment regarding the easement because the Shaheens were

not innocent purchasers without constructive notice in

their chain of title regarding the public landing and road,

and because they implicitly agreed to a 1959 description of

the landing.

I. MATERIAL FACTS AND PROCEEDINGS
 The Shaheens own a 4.52-acre parcel of real estate

located in Mathews County. The parcel is part of a larger

tract of land formerly known as “Auburn.” A plat of a

survey of the Shaheens’ property, which was referred to in

their December 21, 1994 deed and recorded in the land

records of Mathews County, delineated an area identified as

the “Auburn Public Landing” situated on the North River and

a road, 40 feet in width, extending from the landing along

the eastern edge of the Shaheens’ property. Both the

landing and the road are situated within the boundaries of

the Shaheens’ parcel. The plat also contained a reference

to the Mathews County Board of Supervisors Minute Book

(Supervisors Minute Book) 4, at page 370 (where the Board

had directed that a March 14, 1959 plat of the landing and

road be recorded in the County’s land records), and Plat

Book 5, at page 8 (where the 1959 plat was recorded).

After purchasing their property, the Shaheens placed

barriers and no trespassing signs on the road leading to

the landing, thereby blocking access to both the road and

the landing. As a result of the Shaheens’ actions, the

County and its Board of Supervisors (collectively, “the

County”) filed a bill of complaint against the Shaheens.

The County asked the circuit court to “affirm” its fee

simple ownership of the landing and road or, alternatively,

2
to “affirm” the existence of an easement for public use of

the landing and road. The County also asked the court to

“affirm” the dimensions of the road and landing and to

enjoin the Shaheens from interfering with the public’s use

of those areas.

The County’s alleged ownership of the “Auburn Public

Landing” and the road, formerly referred to as the “Wharf

Road,” was based on a petition filed in 1896 by Thomas F.

Nelson and others in the County Court of Mathews County

(the Nelson suit). One of the petitioners was Morgan J.

Evans, who, along with trustees for his wife, owned the

tract of land known as “Auburn.” The petitioners asked the

court to open a public landing and road

commencing in front of the residence of J.W.
Down, which is situated on the public road
leading from Mathews Court House to Gloucester
Court House; and running in a southwesterly
direction to a point on North [R]iver at the
intersection of the boundary line between the
lands of Mr. Morgan J. Evans and Dr. H.W.M.
Washington, better known as Auburn and Green
[P]lains farms: The said road [and] landing on
Auburn farm[.]

Based on reports filed by “viewers” and

“commissioners” appointed in that proceeding, the court

“establish[ed] the road and landing as in the petition

prayed and as set forth in the diagram filed with the

report.” “[I]t further appearing that all the land owners

3
will give to the county the proposed road save and except H

W M Washington [and] wife and that Morgan J Evans will give

a landing on North River of one half acre without

compensation[,]” the court ordered the county surveyor to

lay off a road “over the lands of Morgan J. Evans to North

River . . . 33 feet wide, and lay off the landing of [o]ne

half acre at the terminus of said road on North River in

such place as the said Morgan J Evans may direct.” On

December 15, 1897, H. C. Jones, a county commissioner,

informed the court that he had “been over the road leading

. . . to North River[.]” He reported that the road was “33

ft. wide from where it begins at Auburn farm[,]” and the

landing was “51 X 138 ft. including the width of [the]

road[.]”

The orders entered by the court in the Nelson suit

were recorded in the Minute Books of the County Court of

Mathews County (County Court Minute Books). The indices

found in the front of those individual books contained

entries from T. F. Nelson to the County and from the County

to Nelson. The orders were not indexed in the name of the

landowner, Morgan J. Evans. The diagram referred to by the

court when it established the road and landing was filed

with the papers in the Nelson suit, but it was not recorded

in the County Court Minute Books or in a plat book. The

4
diagram showed only the road and did not depict the

landing.

In 1955, the Board of Supervisors of Mathews County

requested an attorney, Alfred L. Marchant, to review the

records regarding the Auburn road and landing. Marchant

reported that, although a public road and landing had been

established in 1896 or 1897 as a result of the Nelson suit

and although both could be readily observed,

the exact boundaries of [the landing] appear
impossible of determination from the records, as
no survey of the same can be located, and if it
is the desire of the Board to have this area
definitely established it will appear necessary
to do so by mutual agreement between the Board
and the present owners of the Auburn property,
and if this is done it is suggested that a survey
of the same be made[.]

The next year, William C. Coulbourn, the

Commonwealth’s Attorney, filed with the Board a “Plat of

Survey of the Auburn Public Landing . . . and the road to

it from the present hard surfaced road.” Jefferson K.

Sinclair prepared that plat, which was dated July 29, 1956.

According to its minutes, the Board suggested “that if a

slight change can be made in the western boundary of the

landing near a small house on the ‘Auburn’ property, the

boundary lines as established by the said survey will be

5
accepted by all parties.” Sinclair then prepared a revised

plat dated March 14, 1959. 1

When that plat was filed with the Board at its April

29, 1959 meeting, the Board stated in its minutes that the

revised plat of survey “gives the correct and definite

boundaries of said public landing area,” and ordered that

“it be approved as showing the exact boundaries of said

public landing area and the public road leading thereto.”

The revised plat was recorded in the land records of

Mathews County in Plat Book 5, at page 8. It is the plat

referenced on the Shaheens’ plat of their property.

Despite attempts by the County to obtain the owner’s

consent, the owner of Auburn at that time did not sign

Sinclair’s 1959 plat or otherwise indicate consent to or

agreement with the boundaries of the public landing as

shown on that plat. However, in a letter to Sinclair

1
At trial, Charles J. Kerns testified that he assisted
Sinclair in performing the 1956 survey. Kerns stated that
the low water mark appearing on the revised plat was the
same as that used on the 1956 plat. He also testified
that, during the 1956 survey, no attempt was made to
determine the 1896 low water mark. Kerns admitted that,
although it was possible to determine how much erosion had
occurred in the landing area since 1896, that determination
was not made during the survey. He agreed that it would be
difficult for a surveyor to take the orders in the Nelson
suit and draw a description of the landing without making
some assumptions, in part, because the landing’s dimensions
specified in those orders did not equate to one-half acre.

6
requesting that he resurvey the landing and prepare a

revised plat, Coulbourn advised that he had been informed

that the owner of Auburn had consented to a change “in the

fence line separating the public landing from the Auburn

property.”

At trial, the Shaheens presented testimony from two

title examiners who stated that they were unable to find

any instrument in the Shaheens’ chain of title that vested

in the County either title or an easement in the Auburn

landing and road, or that indicated the source of the

County’s claimed ownership. Both title examiners reached

their respective conclusions despite the language found in

a 1901 deed from Morgan J. Evans and others to Charles

Heath. 2 The derivative clause of that deed “except[ed] that

portion of Auburn Farm now used as a public road and

leading down to what is called and known as Auburn Wharf

located upon the Auburn property.” Similarly, a 1898 lease

from Evans and others described the leased premises as “one

half of an acre of land . . . at the foot of the public

road running through the lands of [Morgan Evans] and

adjoining the public landing on North River.”

2
The grantors in that deed also included Evans’ wife
and three individuals who were trustees for the benefit of
Evans’ wife.

7
 Michael Malone, who was hired by the Shaheens to

perform a title examination prior to purchasing their

parcel of real estate, was one of the title examiners

testifying at trial. He stated that, although the

reference on the Shaheen’s plat to the “Auburn Public

Landing” and to the Plat Book and Supervisors Minute Book

alerted him that there might be documents regarding a

public landing and road, neither the recorded 1959 plat nor

the Supervisors Minute Book mentioned the Nelson suit. He

testified that, “upon scour[ing] the ind[ices] for owners

of Auburn,” including Morgan J. Evans, he was unable to

find anything “pertaining to [the] creation of the landing

or the road.” However, virtually all his conclusions were

based on his search of the general indices to the County’s

land records. 3 For example, Malone stated that he checked

for the County’s name in the grantee general indices. But,

he could not recall whether he looked for the County’s name

in the indices to the County Court Minute Books although he

had searched for Morgan J. Evans’ name in the indices to

3
The general indices to the County’s land records now
cover the period back to 1865, but the circuit court clerk
did not know when those indices were compiled.

8
those books. 4 Malone also reported disclaimers in a

succession of deeds after Sinclair’s 1959 plat was recorded

rejecting that plat and disavowing the existence of a

public landing and road. Finally, he stated that the

records kept by the commissioner of the revenue during the

time of the Nelson suit did not reflect any reduction in

the amount of land owned by Evans.

The second title examiner, David Adams, testified that

he also found nothing in the Shaheen’s chain of title that

referenced the 1896 Nelson suit. Adams opined that, based

on record title, the Shaheens own the road and Auburn

landing claimed by the County. His opinion, like that of

Malone, was primarily based on a search of the general

indices to the County’s land records.

A certified land surveyor, James R. Gray, testified at

trial. Gray indicated that the 1959 Sinclair plat depicted

the road as 40 feet in width, whereas the court’s order in

the Nelson suit established it as 33 feet wide. He also

stated that a surveyor could not use the one-half acre

designation of the landing or the dimensions specified in

the Nelson suit and accurately survey and plat the Auburn

landing. Using old, recorded surveys, triangulation

4
The County conceded at trial that the name of Morgan
J. Evans is not listed in the indicies to the County Court

9
points, and other data, Gray opined that the Auburn

landing, as designated in 1896, is now under water.

On August 6, 1998, during pretrial discovery, the

Shaheens filed a request for admissions. They subsequently

filed a second request for admissions on September 22,

1998. The County did not respond to either request for

admissions until November 6, 1998. That same day, the

County filed a motion acknowledging that its responses had

not been filed within the 21 days specified by Rule 4:11

but requesting that “the Answers to [the Shaheens’] Request

for Admissions be accepted rather than the Admissions

themselves set forth in the Request for Admissions being

admitted.” The Shaheens objected, stating that,

“[p]ursuant to Rule 4:11 . . . , the matters contained in

the defendants’ request for admission and the defendants’

second request for admissions are deemed admitted.” During

a telephonic hearing two days before the trial date, a

transcript of which is not part of the record in this case,

the circuit court indicated that it would allow the County

to file the late responses.

The circuit court considered the County’s motion again

on the morning of trial. The court allowed the County to

withdraw the admissions that were “deemed admitted by [Rule

___________________
Minute Books.

10
4:11] and the passage of time.” The court stated that Rule

4:11 was not intended to put “the responding party in a

position of admitting away his case[,]” or “to deal with

controverted facts.” The court concluded that the

admissions taken as a whole would, in fact, result in the

County’s “admitting away the case.” However, the court

indicated that, “[i]f it turns out that in order to prove

something that [the Shaheens] thought was admitted but is

not by virtue of [this] ruling,” it would recess the trial

to give the Shaheens time “to provide the support or basis

for the fact or item that they thought had been admitted.”

Finally, the court required the County to pay the expense

of all or a part of the trial transcript if the Shaheens

needed it in order to present additional evidence with

regard to the withdrawn admissions.

Consequently, after hearing evidence, the court

recessed the trial for approximately eight months. 5 When

5
At the recessed hearing, Adams testified on behalf of
the Shaheens again. He reiterated that T. F. Nelson was
“[a] stranger” to the Shaheens’ chain of title. However,
he acknowledged that the references to the Supervisors
Minute Book and the 1959 Sinclair plat that appear on the
plat of the Shaheens’ property put him on a duty to inquire
about a conflicting claim of ownership. Douglas W. Dewing
also testified at that hearing as an expert in title
examinations. He agreed that there were enough references
to a public landing and road in the Shaheens’ chain of
title to require a title examiner to investigate the
matter, but he stated that, given the facts in this case, a

11
the trial reconvened, the Shaheens again moved the court to

deem the “matters set forth in [their] first and second

request for admissions” admitted pursuant to Rule 4:11 and

asked for summary judgment based on those admissions. The

court denied both motions.

In a letter opinion, the court again addressed the

issue regarding the requests for admissions. Noting that

Rule 4:11(b) gives a court discretion to allow a party to

amend or withdraw an admission, the court concluded that it

was proper, given the issues involved in the case, to

permit the County to withdraw the “ ‘admission[s].’ ” The

court explained:

The merits of this case should have been
developed only by a full hearing. The County’s
claim for a fee simple title or an easement was
pleaded and rested upon the records. If the
County has by default admitted a matter that is
not only genuinely in dispute, but the core of
its case, then the merits are not served by
application of the rule. There was no real
urgency to resolve the case beyond the desire for
and convenience of the prompt resolution of the
issues. . . . Further, the Court ordered that the
County pay certain costs for the defendants’
inconvenience. The defendants were not
prejudiced in maintaining their defense on the
merits.

___________________
title examiner would not have been able to find an
instrument vesting in the County either fee simple interest
or an easement in the road and landing. Dewing also opined
that the 1896 description of the landing was “void for
vagueness.”

12
 With regard to the merits of the case, the court, in

its letter opinion, concluded that “[t]he road and landing

were properly established by the [c]ourt under the

prevailing law and the orders issued in the [Nelson] suit

[were] properly recorded in the Minute Books of the County

Court of Mathews County and indexed in the Books, all in

County clerk’s office.” The Court noted that the existence

of the road and landing for the benefit of the public was

recognized not only by Morgan J. Evans in a subsequent

lease and deed but also by some other owners of Auburn.

Although the court concluded that “the evidence would just

as likely affirm the existence of fee simple ownership,” it

granted the County’s requested affirmation of a public

easement in the Auburn landing and road. Finally, the

court established the location of the road and landing as

shown on the 1959 Sinclair plat.

In summary, the court concluded that the County had

“established an easement for the benefit of the public on

and over the road and landing shown on the Sinclair plat”

and that, when the Shaheens “took title to their property,

they had actual notice of the physical existence of the

road and landing, as well as constructive notice thereof,

as a matter of law.” The court subsequently entered a

final order incorporating its letter opinion and

13
permanently enjoining the Shaheens from interfering with

the free use and enjoyment of the easement for a public

road and public landing. The Shaheens appeal from that

judgment.

II. ANALYSIS

On appeal, the Shaheens raise five assignments of

error: (1) the circuit court erred by allowing the County

to withdraw its admissions; (2) the court “erred by

deciding that the [C]ounty had properly recorded an

instrument vesting title in the [C]ounty to the claimed

road and landing[;]” (3) the court erred by finding that

“there was an instrument in the Shaheens’ chain of title

giving notice of the [C]ounty’s ownership[;]” (4) the court

erred by finding that “the 1896 description of the landing

was valid[;]” and (5) “[t]he [C]ounty had the burden of

proof, and it failed to meet that burden.” We will address

the assignments of error in that order.

A. ADMISSIONS

The Shaheens acknowledge that a trial court has

discretion under Rule 4:11 with regard to whether a party

should be allowed to amend or withdraw admissions.

However, they assert that, in this case, the circuit court

abused its discretion by allowing the County to file

responses to two sets of requests for admissions when those

14
responses were, according to the Shaheens’ calculations,

“71” and “24” days late, respectively, and the County did

not offer any reason or excuse for its tardiness.

Accordingly, the Shaheens request this Court to reverse the

judgment of the circuit court and hold that the requests

for admissions were deemed admitted. The issue before us

is whether the circuit court abused its discretion in

allowing the County to withdraw the admissions.

Several provisions of Rule 4:11 are relevant to this

question. 6 Pursuant to Rule 4:11(a), “[e]ach matter of

which an admission is requested” is deemed admitted if “the

party to whom the request is directed” does not serve “upon

the party requesting the admission a written answer or

objection addressed to the matter” within 21 days after

service of the request. Any matter admitted under the

provisions of Rule 4:11 is “conclusively established unless

the court on motion permits withdrawal or amendment of the

admission.” Rule 4:11(b). A trial court’s discretion to

permit such withdrawal or amendment must be exercised

within certain parameters: (1)“when the presentation of the

6
Rule 4:11 is virtually identical to Rule 36 of the
Federal Rules of Civil Procedure. TransiLift Equip., Ltd.
v. Cunningham, 234 Va. 84, 90, 360 S.E.2d 183, 187 (1987).
Thus, federal courts’ interpretations of Rule 36 are
informative but not necessarily binding on this Court. See

15
merits of the action will be subserved thereby[;]” and (2)

“the party who obtained the admission fails to satisfy the

court that withdrawal or amendment will prejudice him in

maintaining his action or defense on the merits.” Rule

4:11(b); see American Automobile Ass’n v. AAA Legal Clinic

of Jefferson Crooke, P.C., 930 F.2d 1117, 1119 (5th Cir.

1991); Farr Man & Co., Inc. v. M/V Rozita, 903 F.2d 871,

875-76 (1st Cir. 1990); Farm Credit Bank of Omaha v.

McLaughlin, 474 N.W.2d 883, 887 (N.D. 1991).

Some courts have referred to these parameters as a

“two-part test.” E.g., Perez v. Miami-Dade County, 297

F.3d 1255, 1264 (11th Cir. 2002), cert. denied ___ U.S.

___, 123 S.Ct. 1291 (2003); Federal Deposit Ins. Corp. v.

Prusia, 18 F.3d 637, 640 (8th Cir. 1994); American

Automobile Ass’n, 930 F.2d at 1119; Farr, 903 F.2d at 876;

Farm Credit, 74 N.W.2d at 887; Tank v. Munstedt, 504 N.W.2d

866, 868 (S.D. 1993); In re Pendleton, 11 P.3d 284, 295

(Utah 2000). This test, which we adopt, “ ‘emphasizes the

importance of having the action resolved on the merits,

while at the same time assuring each party that justified

reliance on an admission in preparation for trial will not

operate to his prejudice.’ ” Perez, 297 F.3d at 1265

___________________
Brown v. Black, 260 Va. 305, 311, 534 S.E.2d 727, 730
(2000).

16
(quoting Smith v. First Nat’l Bank of Atlanta, 837 F.2d

1575, 1577-78 (11th Cir. 1988)).

Under the first prong of this two-part test, the

moving party has the burden to demonstrate that withdrawal

or amendment of an admission will “subserve” the

presentation of the merits of the action. Gary Mun.

Airport Auth. v. Peters, 550 N.E.2d 828, 831 (Ind. App.

1990); Farm Credit, 474 N.W.2d at 888. This aspect of the

test is “satisfied when upholding the admissions would

practically eliminate any presentation of the merits of the

case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th

Cir. 1995); accord Perez, 297 F.3d at 1266; Prusia, 18 F.3d

at 640; ADM Agri-Industries, Ltd. V. Harvey, 200 F.R.D.

467, 471 (M.D. Ala. 2001); Westmoreland v. Triumph

Motorcycle Corp., 71 F.R.D. 192, 193 (D. Conn. 1976); Gary

Munc. Airport, 550 N.E.2d at 831; Farm Credit, 474 N.W.2d

at 888.

The record in this case demonstrates that the County

satisfied the first prong of the two-part test. The

circuit court found that the admissions, viewed as a whole,

would result in the County’s “admitting away the case,” and

we agree. For example, the Shaheens requested the County

to admit that it had not recorded in the land records of

Mathews County the final order in the Nelson suit and that

17
there was no index reference in the land records of Mathews

County reflecting the County’s ownership interest in the

road and landing site at Auburn. The County admitted by

default matters that were at the core of its case. Thus,

allowing the County to withdraw the admissions aided in the

“ ‘ascertainment of the truth and the development of the

merits.’ ” Smith, 837 F.2d at 1577 (quoting with approval

the district court’s opinion in that case). The admissions

in this case, if not withdrawn, would have “practically

eliminate[d] any presentation of the merits of the case.”

Hadley, 45 F.3d at 1348.

The second prong of the two-part test in Rule 4:11(b)

requires the non-moving party to demonstrate that amendment

or withdrawal of an admission will prejudice that party in

maintaining the action or a defense. This prejudice has

been described as

not simply that the party who initially obtained
the admission will now have to convince the fact
finder of its truth. Rather, it relates to the
difficulty a party may face in proving its case,
e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain
evidence with respect to the questions previously
answered by the admissions.

Brook Village North Assocs. v. General Elec. Co., 686 F.2d

66, 70 (1st Cir. 1982); accord Gallegos v. City of Los

Angeles, 308 F.3d 987, 993 (9th Cir. 2002); Hadley, 45 F.3d

18
at 1348; Prusia, 18 F.3d at 640; American Automobile Ass’n,

930 F.2d at 1120; Smith, 837 F.2d at 1578; Farm Credit, 474

N.W.2d at 888.

In this case, the Shaheens did not establish this

type of prejudice. Instead, the Shaheens focused on the

lateness of the County’s responses to the requests for

admissions and the unfairness of allowing the County to

withdraw the admissions less than 48 hours before

commencement of the trial. They did not demonstrate that

they would have difficulty in the presentation of their

defense or that they were less able to obtain the evidence

needed to prove the matters that had been admitted.

Furthermore, the court recessed for several months

in order for the Shaheens to present additional evidence

regarding the withdrawn admissions and required the County

to bear certain costs to facilitate the Shaheens’

presentation of that evidence. The court also noted that

the County had responded to the requests for admissions

“with great deliberation” and that the County, at one

point, had opened its file to the Shaheens. Any

inconvenience suffered by the Shaheens did not involve the

type or level of prejudice that would have justified a

denial of the County’s motion to withdraw or amend the

admissions.

19
 Therefore, we hold that the circuit court did not

abuse its discretion in allowing the County to withdraw and

amend the admissions since those admissions effectively

eliminated presentation of the case on its merits and the

Shaheens did not show that they would be prejudiced in

maintaining their defense on the merits. 7 Our decision

today does not diminish the seriousness of requests for

admissions or the requirements for prompt responses. The

purpose of Rule 4:11 is to expedite a trial by narrowing

the contested facts and issues, but the rule should not be

used as a weapon “with the wild-eyed hope that the other

side will fail to answer and therefore admit essential

elements.” Perez, 297 F.3d at 1268. Even though the

consequences of failing to comply with the requirements of

Rule 4:11 are harsh, a party who does so should not readily

escape those consequences.

B. INSTRUMENT IN SHAHEENS’ CHAIN OF TITLE

The crux of the Shaheens’ second and third assignments

of error is that the County failed to record properly the

final order in the Nelson suit that established the public

landing and road. Relying on § 2510 of the 1887 Code, they

7
In light of our decision, it is not necessary to
address an issue discussed by the circuit court in its
letter opinion, whether a request for admissions can only
be used to force the admission of facts not in dispute.

20
claim that the order should have been recorded in a deed

book rather than in the County Court Minute Books. 8 Because

of the alleged improper recordation of the order, the

Shaheens assert that there is no instrument in their chain

of title giving notice of the County’s interest in the

public landing and road.

It is not necessary for this Court to decide whether

the provisions of § 2510 of the 1887 Code required the

final order in the Nelson suit to be recorded in a deed

book. 9 The dispositive issue is whether there is an

8
At oral argument, the Shaheens acknowledged that, if
the final order in the Nelson suit had been recorded in a
deed book, the order would have been sufficient, except for
an allegedly inadequate description, to vest in the County
either a fee simple interest or an easement. Thus, we do
not need to address their arguments or their experts’
testimony suggesting that the order was insufficient on its
face to vest title in the County to the road and landing.
Moreover, the circuit court found that “[t]he road and
landing were properly established by the [c]ourt under the
prevailing law.” This finding is not the subject of an
assignment of error. See Rule 5:17.
9
In pertinent part, § 2510 of the 1887 Code provided
that
[t]he clerk of the court wherein there is any
partition of, or assignment of dower in, land under
any order, or any recovery of land under judgment or
decree, shall transmit to the clerk of the court of
each county or corporation wherein such land is . . .
a copy of such order . . . [a]nd the clerk of court of
such county or corporation . . . shall record the same
in his deed book, and index it in the name of the
person who had the land before, and also in the name
of the person who became entitled under such
partition, assignment, or recovery.

21
instrument in the Shaheens’ chain of title giving

constructive notice of the County’s claim either to a fee

simple interest or an easement in the Auburn landing and

road. The issue of constructive notice implicates the

provisions of § 2465 of the 1887 Code. That statute, which

was in effect while the Nelson suit was pending, provided

that

[e]very such contract in writing, every deed
conveying any such estate or term, and every deed
of gift, or deed of trust, or mortgage, conveying
real estate or goods and chattels, shall be void
as to subsequent purchasers for valuable
consideration without notice, and creditors,
until and except from the time that it is duly
admitted to record in the county or corporation
wherein the property embraced in such contract or
deed may be.

See Jones v. Folks, 149 Va. 140, 144, 140 S.E. 126, 127

(1927) for a discussion of this statute. See also, Code

§ 55-96 (current version of former § 2465). If, as the

Shaheens contend, there is no instrument in their chain of

title giving constructive notice of the County’s claim,

then the final order in the Nelson suit establishing the

public landing and road is “void” as to the Shaheens, who

were “subsequent purchasers.” Code § 2465.

“The main purpose of recordation statutes is to give

constructive notice to purchasers and encumbrancers who

___________________
The Shaheens did not cite this statutory provision in the

22
acquire or seek to acquire some interest or right in

property.” Chavis v. Gibbs, 198 Va. 379, 381, 94 S.E.2d

195, 197 (1956). “[W]here a party purchases an estate

which is subject to the right of another, and that right is

shown by the chain of title papers, the purchaser is

charged with notice of all that the title paper or papers

to which they refer may disclose upon complete

examination.” Id. at 382, 94 S.E.2d at 197 (citing

Effinger v. Hall, 81 Va. 94, 105 (1885); Burwell’s Adm’rs

v. Fauber, 62 Va. (21 Gratt.) 446, 463 (1871); Virginia

Iron & Coke Co. v. Roberts, 103 Va. 661, 681, 49 S.E. 984,

986, (1905)); see also Fox v. Templeton, 229 Va. 380, 385,

329 S.E.2d 6, 8-9 (1985). However, a bona fide purchaser

is charged with constructive notice of only those matters

of record in the purchaser’s chain of title referred to or

about which the purchaser is placed on inquiry. Kiser v.

Clinchfield Coal Corp., 200 Va. 517, 523, 106 S.E.2d 601,

606 (1959); Providence Forge Fishing & Hunting Club v.

Gill, 117 Va. 557, 560, 85 S.E. 464, 465 (1915).

To constitute constructive notice,

the registered or recorded instrument must afford
to subsequent purchasers or [i]ncumbrancers the
means of not only ascertaining with accuracy what
property is conveyed or affected by the
instrument registered or recorded and where it
___________________
proceedings before the circuit court.

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 is, but its language must be such that, if a
subsequent purchaser or incumbrancer should
examine the instrument itself, he would obtain
thereby actual notice of all the rights which
were intended to be created or conferred by it;
and if it contained these essential requisites
the registry or recordation thereof operates as
constructive notice to subsequent purchasers and
incumbrancers[.]

National Cash Register Co. v. Burrow, 110 Va. 785, 790, 67

S.E. 370, 371-72 (1910). Stated differently, a purchaser

“must look to the title papers under which he buys, and is

charged with notice of all the facts appearing upon their

face, or to the knowledge of which anything there appearing

will conduct him. He has no right to shut his eyes or his

ears to the inlet of information, and then say he is a bona

fide purchaser without notice.” Burwell’s Adm’rs, 62 Va.

(21 Gratt.) at 463; quoted in Chavis, 198 Va. at 383, 94

S.E.2d at 198. Only a purchaser without notice can take

advantage of a failure to record an instrument. National

Mut. Bldg. & Loan Ass’n v. Blair, 98 Va. 490, 498, 36 S.E.

513, 515 (1900).

In this case, there were three instruments in the

Shaheens’ chain of title giving constructive notice of the

County’s interest in the public landing and road. The

first two instruments were the 1898 lease and the 1901 deed

from Morgan J. Evans, a predecessor-in-title to the

Shaheens and one of the petitioners in the Nelson suit.

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The third instrument was the plat of the Shaheens’

property.

Specifically, the 1901 deed contained the following

relevant language:

The property herein conveyed being the same
property conveyed to Morgan J. Evans . . . by
. . . . Deed dated October 20, 1893 and recorded
in the Clerk’s Office of Mathews County, Virginia
. . . , (save and except that portion of Auburn
Farm now used as a public road and leading down to
what is called and known as “Auburn Wharf,”
located upon the Auburn property[)].

Although this exception appeared in the derivative clause

of that deed, it, nevertheless, placed subsequent

purchasers, including the Shaheens, on notice that there

was a public road and landing located on the Auburn

property. The 1898 lease also referred to a “public road

running through the lands of [Morgan Evans] and adjoining

the public landing on North River.”

“[T]he recordation of an instrument gives constructive

notice of all the facts expressly stated in the instrument

and other[] matters therein suggested which might be

disclosed upon prudent inquiry.” Chavis, 198 Va. at 382,

94 S.E.2d at 197. Since the 1898 lease and the 1901 deed

both referred to a “public” road and landing, a “prudent

inquiry” in this case would have led to the conclusion that

the County must have acquired an interest in the road and

25
landing by virtue of an instrument such as a deed or

through a condemnation proceeding. Orders entered in

county court proceedings in Mathews County were recorded in

the County Court Minute Books during the period when the

Nelson suit was pending. Thus, searching for the County’s

name in the indices to the County Court Minute Books, since

general indices were not required until 1919, see former

Code § 3394, would have revealed the orders in the Nelson

suit that established the landing and road.

Apparently, Marchant found those orders in 1955. In a

report to the County’s Board of Supervisors, Marchant

discussed the orders and recited the volumes of the County

Court Minute Books and page numbers at which those orders

were recorded. He also opined that the orders “appear[ed]

to establish definitely that such a road and landing were

opened.”

Similarly, the plat of the Shaheens’ property not only

depicted the “Auburn Public Landing” and road on its face

but also referenced the Supervisors’ Minute Book and the

plat book where the 1959 Sinclair plat was recorded.

Despite disclaimers regarding the 1959 plat in some of the

deeds to the Shaheens’ predecessors-in-title, the plat of

their property and the references contained therein again

26
provided constructive notice of the existence of a “public”

road and landing.

The scope of a “prudent inquiry” was at issue in

Chavis. There, the owner of two tracts of real estate

conveyed the tracts to a trustee to secure payment of two

promissory notes. 198 Va. at 380, 94 S.E.2d at 196. The

owner subsequently conveyed the property to another

individual, but that deed did not mention the prior deed of

trust. Id. The second owner then sold the property to

C. L. Chavis. Id. The deed to Chavis, which was recorded

on January 19, 1948, stated that the conveyance was made

subject to the lien of the prior deed of trust. Id. at

381, 94 S.E.2d at 196. However, default occurred in the

payment of the notes, and the trustee, prior to the

conveyance to Chavis, sold the property to two receivers

for a bank, who in turn conveyed the property to Louis C.

Gibbs. Both the deed to the receivers and the deed to

Gibbs were recorded subsequent to the recordation of the

deed to Chavis. Id. at 380, 94 S.E.2d at 196.

The issue in the case was whether Chavis or Gibbs had

title to the property. Id. at 381, 94 S.E.2d at 197.

Chavis contended that the deed from the trustee to the

receivers was void as to him because it had not been

recorded prior to the time that he had acquired the

27
property and recorded his deed. Id. at 381, 94 S.E.2d at

196-97. Gibbs, on the other hand, claimed that the deed of

trust and the recitals in Chavis’ deed charged Chavis with

sufficient notice to put him on inquiry, which if pursued,

would have revealed the foreclosure sale and conveyance by

the trustee under the deed of trust. Id. at 381, 94 S.E.2d

at 197. We agreed with Gibbs. Id. at 388, 94 S.E.2d at

201.

In our decision, we quoted with approval this

statement from 66 C.J.S., Notice, § 11, p. 642:

A person who has sufficient information to lead him to
a fact is deemed conversant with it, and a person who
has notice of facts which would cause a reasonably
prudent person to inquire as to further facts is
chargeable with notice of the further facts
discoverable by proper inquiry.

Id. at 385, 94 S.E.2d at 199. We concluded that the

recitals in the deed to Chavis put him on inquiry regarding

the deed of trust and the rights of the beneficiary. Id.

“If reasonable and prudent inquiry had been made and full

answers obtained, [Chavis] would have discovered that

because of default in the payment of the notes, the

property had been sold in accordance with the provisions of

the deed of trust.” Id. at 387, 94 S.E.2d at 201. Thus,

we held that Chavis was not a purchaser without notice and

did not take title to the property. Id. at 388, 94 S.E.2d

28
at 201. In Chavis, a prudent inquiry was not limited to

facts disclosed solely within the four corners of the

recorded instruments. The fact that the deed of trust was

of record and remained outstanding when Chavis purchased

the property placed on him a duty to inquire further about

the status of the notes secured by the deed of trust.

Our decision today is consistent with an analogous

case decided by this Court many years ago. In Whitlock v.

Johnson, 87 Va. 323, 330, 12 S.E. 614, 616 (1891), the

question we considered was whether the defendants were

innocent purchasers for value, with notice. Several deeds

in Whitlock’s chain of title contained a reference to “a

plat of the sub-division of E. F. Peticolas’s estate, which

plat is filed with the report of Commissioner W. F. Watson,

in the clerk’s office of the county court of Henrico, with

the causes ended October, 1861.” Id. at 330, 12 S.E. at

617. The referenced plat, which was only filed with the

commissioner’s report and not in the deed books, had the

name of “Dr. C. P. Johnson” on lot No. 25 and the word “do”

on each of the other lots in question. Id. at 331, 12 S.E.

at 617. The deed to Whitlock did not, however, mention the

plat, but it did refer to the other deeds in Whitlock’s

chain of title. Id. at 330-31, 12 S.E. at 617.

29
 We concluded that Whitlock was put on inquiry as to

the commissioner’s report which conclusively showed that

Johnson purchased the lots in question. Id. at 331, 12

S.E. at 617. Although the cause in which the report and

plat were filed was not specifically named in the deeds, it

was sufficient that the deeds contained the term of court

in which the cause was ended and referred to the plat, and

that the plat named the cause in which the property was

sold. Id. Thus, we held that Whitlock had constructive

notice of the outstanding title of Johnson to the lots in

question. Id. at 332, 12 S.E. at 617.

Similarly, the instruments in the Shaheens’ chain of

title did not mention the Nelson suit, but those

instruments provided sufficient information to put the

Shaheens on constructive notice about the existence of a

public landing and road. And, as we have already stated, a

“prudent inquiry” would have led to the Nelson suit orders

recorded in the County Court Minute Books.

Thus, we conclude that the circuit court did not err

in “affirming” the existence of an easement for the benefit

of the public in the Auburn landing and road. The Shaheens

were not innocent purchasers without constructive notice of

the County’s interest in the landing and road.

C. DESCRIPTION OF LANDING

30
 In their fourth assignment of error, the Shaheens

contend that the description of the Auburn landing as set

forth in the Nelson suit was so vague as to be invalid or

void, thereby causing the County’s claim to the landing to

fail. The circuit court, in its letter opinion, discussed

the difficulties with the description of the landing and

stated that “[t]he precise location of the road and landing

cannot be established by review of the Nelson suit.”

However, the court ultimately adopted the description of

the landing as shown on the 1959 Sinclair plat.

Irrespective of any inadequacies in the description of

the landing when it was established in the Nelson suit or

whether the description was sufficient to give notice under

the registry laws as to enable a subsequent purchaser to

determine where the landing was situated, see Merritt v.

Bunting, 107 Va. 174, 178, 57 S.E. 567, 568 (1907), we

conclude that the Shaheens cannot now dispute the

description adopted by the circuit court. The plat

depicting the Shaheens’ property delineated the ”Auburn

Public Landing” and specifically referred to the plat book

where the 1959 Sinclair plat was recorded in the County’s

land records. The Shaheens implicitly agreed to the

accuracy of the 1959 Sinclair description of the public

landing by accepting their own deed. See Shooting Point,

31
L.L.C. v. Wescoat, 265 Va. 256, 264, 576 S.E.2d 497, 501

(2003); Johnson v. Powhatan Mining Co., Inc., 127 Va. 352,

364, 103 S.E. 703, 707 (1920). Thus, we find no merit in

this assignment of error.

D. BURDEN OF PROOF

Finally, the Shaheens argue that the County had the

burden of proof and failed to carry that burden. We do not

agree. For the reasons already stated, we conclude that the

County established, by clear and convincing evidence, an

easement in the Auburn landing and road for the benefit of

the public.

III. CONCLUSION

With regard to each of the assignments of error raised

by the Shaheens, we find no error in the judgment of the

circuit court. Thus, we will affirm that judgment.

Affirmed.

32