89 W. Va. 245 | W. Va. | 1921
Prom a verdict and judgment in an action of unlawful de-tainer in favor of the defendant, plaintiff prosecutes this writ of error.
The controversy arises over possession of one acre of land in or near the city of Beckley, on which is erected a frame dwelling house. It appeared that the Beaver Coal Co. deeded this tract of land in the year 1901 to the Beckley Seminary to be used for educational purposes, or as a playground or park in connection with the Beckley Seminary. The Beckley Seminary took possession of the land and caused the brush and some timber to be removed therefrom, and in the year 1905 erected a dwelling house thereon, which dwelling house was occupied by defendant at the time this action was instituted. In the year 1907 the Beckley Seminary conveyed this acre of land to the Christian "Women’s Board of Missions, a corporation, for educational purposes. A short time thereafter this last grantee erected a building on some land
Defendant, to maintain the issue on his part, testified that he had gone into his house in the .year 1915 under a contract with an agent of the C. W. B. M., and that a Mr. Howell, who was the last agent of the C. W. B. M., went away to sell the property and that he was told by Howell that the property would go back to a Mr. T. K. Scott, would revert back to him, and he was instructed to look to Mr. Scott for directions, and as his landlord. He testified that he never had any contract with the Board of Education with reference to renting the dwelling house in controversy, but that he served as janitor for their school buildings in the year 1917 and 1918. He then testified that in the fall of 1919 the Board did not intend to have school in the old building and not having sufficient room in the new building, the secretary of the Board came to him and asked him to clean up the old building, which he did and acted as janitor in the months of October and November, in all 7 weeks, and when he went to the Board to get his pay he was told that they would pay him his
The court seemed to be under the impression that the best title to the land would control the possession thereof, and tried the case on that theory. Three instructions were given for defendant, which proceeded upon that theory, all of which were objected to by the plaintiff, and it will only be neces
‘1 The court instructs the jury that if you believe from the evidence that the Christian Woman’s Board of Missions, held the land on controversy in this case under a deed from Beaver Coal Company and also under a deed from T. K. Scott, and at the time it reconveyed the land so purchased by it from the said Beaver Coal Company to the Board of Education of Town District and also at the time it reconveyed the land which had been conveyed to it by T. K. Scott back to the said T. K. Scott, then the right to possession of the said land depends upon the title to the same and unless the jury believes that the said plaintiff has proved by a preponderance of evidence that its title is a better title than the title claimed by the defendant J. W. Dunkley they will find for the defendant T. K. Scott.”
It will be observed that the plaintiff and its predecessors in title had possession and occupancy of this one acre tract since the year 1901. It is not necessary to say in this proceeding whether its title was good or bad. There is -no controversy over the fact that from the year 1915 defendant was the tenant of the Christian Women’s Board. He says so expressly in his testimony. When confronted with this former testimony in the suit to recover for his services rendered in the fall of 1919 as janitor in the. old building, in which he had stated that his occupancy was under the Board of Education, he said again that he had meant to say that his contract was with the C. W. B. M. Being the lessee and tenant of the C. W. B. M. at the time they sold and delivered possession of thei property to the Board of Education in 1917, by operation of law he became the lessee and tenant of the purchaser. At common law this was not true. A tenant neither owed fealty nor rent to the assignee until he had assented to the assignment by attorning to the purchaser. However, to remedy this inconvenient principle of the common law, a statute was passed, 4th Anne chap. 16, which made assignments of reversions valid in all eases without attornment.
There is no evidence, even of an inferential character, in the record that defendant ever repudiated his tenancy under the Christian Women’s Board, or under its successor in title, the plaintiff, or ever recognized or proclaimed Scott as his landlord until after the notice to vacate. When he refused possession this suit promptly followed. He will not be allowed to deny the title and possession under which he took his tenancy. It follows that the defense of adverse title in Scott relied upon is not available in this action, and the evidence thereof should have been rejected; and that the instructions based on that defense should have been refused. The judgment is reversed, verdict set aside and a new trial awarded.
Reversed and remanded.