(D.C. Civil No. 216-1971) APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
Before MARIS, VAN DUSEN and ROSENN, Circuit Judges
This is an appeal by the defendant from a judgment of the District Court of the Virgin Islands granting the plaintiff's motion for summary judgment in its suit to recover the unpaid balance due on a note and to foreclose a purchase money mortgage which secured the note. The judgment appealed from also dismissed the defendant's counterclaim for damages for alleged breach of the plaintiff's warranties of title. The defendant's sole defense to the suit was based on the allegations of its counterclaim, which the district court quite properly treated as in effect interposing the defense of set off. Briefly stated this defense was that one of the parcels of land which were conveyed by the plaintiff to the defendant, for a portion of the purchase price of which the note was given and which were included in the purchase money mortgage sought to be foreclosed, includes land in the Caribbean Sea over which the United States and the Government of the Virgin Islands claim title and control, which claim is a cloud on defendant's title and a breach of the warranties of title contained in its deed, as a result of which the defendant has suffered damage in excess of the balance due on the note in suit. The district court, in an opinion by Chief Judge Christian, 1971, V.I., F. Supp., concluded that the counterclaim does not raise a substantial issue of fact and is without support in law. The court accordingly dismissed the counterclaim and entered summary judgment in favor of the plaintiff on the complaint. The present appeal by the defendant followed. We affirm for the reasons hereinafter stated.
Cutting through the maze of procedural objections which the defendant has raised on appeal, and which we find so insubstantial as to require no discussion, and going directly to the heart of the controversy between the parties, as the district court properly did, we find that there is only one genuine issue in the case. It is whether Parcel No. 101 of Estate Frydenhoj, No. 3 Red Hook Quarter, St. Thomas, one of the two adjoining parcels of land which were conveyed by the plaintiff to the defendant by a warranty deed dated April 8, 1969 and which were included in the purchase money mortgage which was given by the defendant to the plaintiff to secure the note in suit, did or did not include a portion of the Caribbean Sea lying to the southwest of the fast land included in the parcel. To determine this issue we must look to the defendant's deed to determine what that instrument, construed according to the accepted canons of construction, purported to convey. If the plaintiff's deed must be construed as purporting to convey to the defendant as part of the parcel of land in question an area lying in the sea then the defendant's contention that the plaintiff's warranties of title have been breached because of the alleged claims of the United States and the Government of the Virgin Islands to the seabed might well raise issues of fact for trial. But if, on the other hand, the deed, properly construed, actually conveyed only the land above high-water mark, then this issue, which as we have said, is the one raised by the defendant's counterclaim or set off, drops out of the case and summary judgment was properly entered for the plaintiff as a matter of law.
We turn then to the description of the parcel of land in question which is attached to the deed and made part of it. It is as follows:
"Beginning at a bound post located at the southwest corner of Parcel No. 102, the line runs:
"South 49 degrees 37 minutes East along Parcel No. 102, a distance of 113.7 feet, more or less, to a bound post; thence turning
"South 34 degrees 20 minutes West along Parcel No. 50A, a distance of 50.9 feet, more or less, to a bound post; thence continuing
"In the same direction a distance of 20 feet, more or less, to a point; thence turning
"In a general easterly direction along Parcel No. 101, a distance of 345 feet, more or less, to a point; thence turning
"South 21 degrees 44 minutes West along portion of Estate Frydenhoj, a distance of 157 feet, more or less, to a bound post; thence continuing
"South 21 degrees 44 minutes West along portion of Estate Frydenhoj, a distance of 294 feet, ...