LIM v. CHOI (59750)


LIM v. CHOI


June 5, 1998

Record No. 971884

MYRA K. LIM

v.

SOO MYUNG CHOI

OPINION BY JUSTICE CYNTHIA D. KINSER

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Dennis J. Smith, Judge

Present: All the Justices


At issue in this appeal is whether a memorandum written and
signed by Myra K. Lim is sufficient to convey Lim’s interest
in a certain parcel of real estate to Soo Myung Choi. Because the
memorandum does not contain any words or language demonstrating
an intent to convey an interest in real estate, we find that the
memorandum is not a valid deed. Accordingly, we will reverse the
judgment of the circuit court.

I.

Lim and Choi acquired title to residential real estate (the
Property) in Fairfax County as joint tenants with right of
survivorship by a deed dated October 1, 1973. On February 18,
1975, Lim wrote and signed the following memorandum (the
Memorandum):

To: Mr. Soo-Myung Choi

Re: House at 3111 Graydon Street, Falls
Church, Virginia, 22042 (Lot # 318, Sq. 6)

I purchased the above property on October 1, 1973,
jointly with Mr. Soo-Myung Choi as a co-owner. However, I
hereby state that the ownership of the above property
belongs fully to Mr. Soo-Myung Choi, and that the above
property is not a nature of thing for which I assume
responsibility in paying mortgage.

In the event that Mr. Soo-Myung Choi sells or rents
the above house and needs my signature for the release, I
will gladly and without delay respond to the occasion.

I hereby make it clear that I shall not involve myself
in the matter concerning financial gains or losses of the
above house, and that all rights belong to Mr. Soo-Myung
Choi alone. [1]

On May 25, 1982, Lim filed a bill of complaint requesting the
court to partition the Property. Choi responded by filing a
cross-bill to quiet title, asserting that Lim had surrendered any
interest in the Property when she signed the Memorandum. Choi
further alleged that he made all the mortgage payments on the
Property. In her answer to Choi’s cross-bill, Lim asserted
that the Memorandum was invalid and denied most of the other
allegations.

By a decree of reference, the circuit court appointed a
commissioner in chancery and directed the commissioner to hear
evidence related to this cause. The commissioner conducted a
hearing on March 16, 1988. At the hearing, Lim testified that she
provided the funds for the down payment to purchase the Property
as well as the settlement costs and security deposit. She further
testified that she made payments on two mortgages on the Property
until December 1975. With regard to the Memorandum, Lim stated
that Choi forced her to write it by beating her and then
threatening her with a gun.

In contrast, Choi testified that Lim became a co-owner of the
Property for the purpose of helping Choi obtain a loan since he
did not otherwise qualify for one. [2] Choi also stated that he has
made all the mortgage payments since January 1975. [3] Finally,
Choi denied owning a gun and claimed that he did not use violence
or threats to force Lim to execute the Memorandum.

The commissioner filed his report in December 1994. In the
report, the commissioner stated that neither party presented
sufficient evidence to overcome the prima facie validity
of the deed conveying the Property to them as joint tenants with
right of survivorship. Accordingly, the commissioner recommended
that a decree be entered directing the sale of the Property and
also dismissing Choi’s cross-bill.

However, the chancellor ordered the commissioner to file a
supplemental report and specifically requested the commissioner
to amplify his findings of fact regarding the Memorandum’s
validity. The commissioner filed a new report on July 31, 1996,
in which he found that "[t]he ‘memorandum’
operated as a deed and served to quitclaim or release Ms.
Lim’s interest in the property to Mr. Choi" and that
sufficient consideration existed to support the transfer. The
commissioner also found that Lim failed both to allege and to
prove by clear and convincing evidence that Choi obtained the
Memorandum from her by duress. Thus, the commissioner recommended
that the court dismiss Lim’s bill of complaint for partition
and sustain Choi’s cross-bill to quiet title and to vest
title to the property in him.

Lim filed exceptions to the commissioner’s supplemental
report; however, the chancellor entered a November 5, 1996 decree
sustaining the commissioner’s findings. Subsequently, on
June 6, 1997, the chancellor entered a decree vesting title in
the Property to Choi. Lim appeals.

II.

In considering this appeal, we adhere to the established
standard of review regarding a chancellor’s decree which
approves a commissioner’s report. Such a decree will be
affirmed "unless plainly wrong or without evidence to
support it." Chesapeake Builders, Inc. v. Lee, 254
Va. 294, 299, 492 S.E.2d 141, 144 (1997); see also Firebaugh
v. Hanback
, 247 Va. 519, 525, 443 S.E.2d 134, 137 (1994).
Although a commissioner’s report does not carry the weight
of a jury verdict, Code  8.01-610, a chancellor should
sustain it if the evidence supports the commissioner’s
findings. Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d
292, 296 (1984). This rule "applies with particular force to
the report’s factual findings which are based on evidence
heard by the commissioner;" however, it does not apply to
"pure conclusions of law" found in the
commissioner’s report. Chesapeake, 254 Va. at 299,
492 S.E.2d at 144. In accord with this standard of review, we
hold that the chancellor in this case erred in sustaining the
commissioner’s report concluding that the Memorandum
constituted a valid, enforceable deed.

The requirements for a deed are "competent parties, a
lawful subject matter, a valuable consideration, apt words of
conveyance, and proper execution." Morison v. American
Ass’n., Inc.
, 110 Va. 91, 92, 65 S.E. 469, 470 (1909).
Lim argues that the Memorandum lacks consideration and is,
therefore, not a valid deed. Choi, however, contends that the
Memorandum’s language regarding Lim’s refusal to assume
responsibility for the mortgage payments is an implied promise by
Choi to continue paying the mortgage. Thus, according to Choi,
his implied assumption of the mortgage payments constitutes
adequate consideration. However, we do not need to decide whether
adequate consideration exists because the Memorandum lacks any
words or language demonstrating an intent to convey property and
is, therefore, not a valid deed.

A writing need not be in any particular form to constitute a
deed. Albert v. Holt, 137 Va. 5, 8, 119 S.E. 120, 121
(1923). Nonetheless, a document purporting to convey title must
contain operative words manifesting an intent to transfer the
property. See Morison, 110 Va. at 92-93, 65 S.E. at
470. In Albert, this Court addressed the validity of a
deed in which the grantors did "give, bargain, and
sell" the property at issue. Albert, 137 Va. at 7,
119 S.E. at 121. The grantors argued that the deed lacked words
of conveyance and was, therefore, defective. In rejecting that
argument, this Court noted that while Code  5162 (now Code
 55-48) used the term "grant" in providing the
form for a deed of conveyance, it was not an "indispensable
requisite" to a valid deed. Id. at 9, 119 S.E. at
121. Thus, the statutory form was not "invariable." Id.
at 8, 119 S.E. at 121. The Court then examined the deed’s
language and found "the intention to ‘grant’
. . . so manifest . . . that no other
construction could be put upon it." Id. at 10, 119
S.E. at 122. Therefore, use of technical words or strict
compliance with the form in Code  55-48 is not necessary
to effect a transfer if the language used "plainly
shows" on the face of the document a clear intent to convey
title. Morison, 110 Va. at 92, 65 S.E. at 470.

To determine whether an intent to convey exists in the present
case, we examine the Memorandum’s language, and, in doing
so, construe that language liberally so as to give effect to the
parties’ intention "if there are sufficient words to
declare clearly and legally the maker’s meaning." Albert,
137 Va. at 10, 119 S.E. at 122. We find no words in the
Memorandum indicating an intent by Lim to transfer her interest
in the Property to Choi. Rather, the Memorandum is replete with
contemporaneous statements by Lim regarding her belief as to the
Property’s current status. Lim claims that Choi is the owner
of the Property, that she is not responsible for the mortgage,
and that she is not involved in any financial matters concerning
the Property. However, unlike the deed at issue in Albert,
at no point in the Memorandum does Lim express an intent, through
words of conveyance or otherwise, to transfer her interest in the
Property to Choi. Thus, the Memorandum is void of any language
indicating an intent to convey, and, finding no words of
conveyance, we will not "rewrite [a] deed to express an
intention that is otherwise indiscernible." Walker v.
Bowman
, 227 Va. 209, 214, 315 S.E.2d 206, 209 (1984).
Accordingly, we hold that the Memorandum does not constitute a
valid deed and does not, therefore, transfer Lim’s interest
in the Property to Choi. [4] Lim and Choi continue to own
the Property as joint tenants with right of survivorship.

Thus, for the reasons stated, we will reverse the judgment of
the circuit court and remand for entry of a decree of partition.

Reversed and remanded.

 

FOOTNOTES:

[1] Because Lim wrote the
Memorandum in Korean, the above language is a translation of the
original document.

[2] Both Lim and Choi testified
that Lim signed both deed of trust notes, yet the record contains
neither the notes nor the deeds of trust. The record does,
however, include a release of one mortgage to Choi.

[3] According to Choi, Lim
sometimes made the mortgage payments in an effort to repay debts
that she allegedly owed him.

[4] Because we hold that the
Memorandum is not a valid deed, we need not consider Lim’s
assignment of error regarding the defense of duress.

Scroll To Top