89 Va. 717 | Va. | 1893
delivered the opinion of the court.
The first assignment of error here is that the plaintiffs, having read in evidence to the jury a patent from Robert Brooke, governor of Virginia, to Robert Oliver, dated on the 1st day of September, 1796, for 19,950 acres in the Blue Ridge mountains, (from which were excepted, as excluded and not granted, fifty tracts of land, ranging in size from 3,800 acres to 50 acres,) the said plaintiffs then offered in evidence the will of said patentee, Robert Oliver, which said will was excluded as evidence by the court, to which the plaintiffs excepted. There are numerous objections to the said will as evidence in this case, but the said will did not refer to, nor in any wise make mention of, this land. It. was not in any way related to the controversy. The plaintiffs did not pretend to claim under this will, but had offered in evidence a power of attorney from Robert Oliver, dated April 25, 1834, to one Henry O. Middleton, authorizing him .to sell this land granted by the said patent. Robert Oliver died during the same year, .and his son, Charles Oliver, is appointed one of four execu
The controversy was upon the possession of the defendant, as derived (as alleged by the plaintiffs) from the plaintiffs, or those under whom they claim; which, however, is denied by the defendant, who introduced a large amount of testimony of witnesses in contradiction of the testimony of the plaintiffs; and the court instructed the jury, as asked for by the plaintiffs, that the tenant could not be allowed to dispute the possession of the landlord without restoring such possession, and, if he died without doing this, his children were, like himself, in the occupation of this land, tenants; and, if the parties were in possession from the grant of persons who were tenants, then the jury was instructed to find for the plaintiffs, if they so believed the evidence; and for the defendant instructed the jury that the plaintiffs must recover, if at all, upon the strength and sufficiency of their own title, and»not upon thé insufficiency of the defendant’s title; and also the converse of the propositions asked for by the plaintiffs, and stated in the alternative as to tenants; and, further, as to the character of possession, and its duration necessary to maintain the claim of adverse possession. And, the questions of fact being submitted to the jury, with very correct instructions upon the
The only remaining question is the action of the trial court in excluding certain wills which are offered by the-plaintiffs to show color of title in them ; but these instruments, while professing to devise the premises in question in general terms, do not in any sense relate to the title of [Robert Oliver under his patent, and are of no effect as a link in the chain of title claimed, and are of no effect to give color of title to support adversary possession, containing no description, no boundaries, by which the possession can be defined or ascertained. The deed or instrument which is relied on to give color of title must seem to define specifically the boundaries of his claim. Ellicott v. Pearl, 10 Pet. 412. Where a disseisor enters upon and cultivates part of a tract, he does not thereby hold possession of the whole tract constructively, unless this entry was by color of title by specific boundaries to the whole tract. Color of title is valuable only so far as it indicates the extent of the-disseisor’s claim, (Ege v. Medlar, 82 Pa. St. 99,) and the said wills were therefore properly excluded, as the said land was not therein set forth nor-defined.
There was no error in the action of the trial court in admitting proof that the party under whom the defendant claimed to derive title by adversary possession claimed an adverse holding against all, as among his acts of ownership. The same appears, indeed, from the evidence, not excepted to, showing acts of ownership. In this case the evidence is certified ; and, when thus considered, upon the rule established
Judgment affirmed.
