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.
24
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