45 W. Va. 90 | W. Va. | 1898
On the 23d day of September, 1890, a jury rendered a verdict in favor of George Bodkin and John P. Bodkin, plaintiffs, in an action of ejectment instituted in the circuit court of Braxton County, against George J. Arnold, defendant. On his motion the circuit court set aside the verdict, and awarded the defendant a new trial. Plaintiffs obtained a writ of error to this Court. The following is a statement of the case and the errors assigned adopted from the petition:
“On the 8th day of September, 1824, Daniel Stringer secured a patent on two thousand acres of land in what was then Lewis County, now Braxton County. On September 25, 1828, he conveyed this land to Camden & Porter, trustees, to secure certain debts. On December 1, 1834, Camden, trustee, sold this land to Samuel Merchant, and conveyed it to him on the 9th day of November, 1839. Merchant appointed Camden his agent, and as such agent,*92 on the 13th day of April, 1843, Camden leased the land to Andrew Boggs, Sr., for three years. Other leases were made under this Merchant title, one to Thomas Roby, and it is insisted one was made to David Alkire, in 1849, or 1850, from Camden, as agent for Merchant. While in possession of said land as Merchant’s tenant, the said David Alkire, without notice of attornment to his landlord, on July 2, 1854, entered 786 acres of this 2,000-acre tract as vacant land. Survey was made October 11, 1855, by him, and on July 1, 1856, he obtained a patent for this 786 acres, and continued to reside on it, he and his sons and son-in-law, until about 1859, when he conveyed, by deed dated December 5, 1859, said 786 acres to Andrew Boggs, Jr., but, knowing that such title was defective, Boggs, Jr., did not have his Alkire deed recorded, and in the fall of 1860, took from Camden, agent for Merchant, a lease for the whole 2,000-acre tract, which included this 786 acres, for a period of two years, and remained in possession under said lease until the 6th day of September, 1865, when he attempted to convey the 786 acres under the Alkire patent to petitioner George Bodkin and N. G. Mundy in exchange for a tract of 725 acres in Upshur County, which they by written contract agreed to convey to him, and petitioner George Bodkin was put in possession, of the 786-acre tract in Braxton. Shortly after, Camden, as agent for Merchant, demanded of petitioner George Bodkin to quit the possession of said' land or become Merchant’s tenant. Petitioner George Bodkin refused to surrender, and thereupon suit was instituted in ejectment in the United States district court of the state by Merchant, a nonresident, to recover such possession. After notice was served, petitioner George Bodkin and said N. G. Mundy, in the spring of 1870, met Boggs, Jr., on this land in Braxton, called his attention to the suit of Merchant’s, and asked him to defend the same. This he absolutely refused to do, admitting that his title to the land was not good, and that the Merchant title was the better one, and he advised petitioner George Bodkin and Mundy to make the best compromise they could with Camden, agent for Merchant, characterizng his own title as ‘not worth a damn,’ and it was thereupon ag-reed that the exchange of*93 this 786 acres for the 725 acres in Upshur should be rescinded, and that petitioner George Bodkin should give to Boggs, Jr., a horse valued at $105 to pay him his expenses in moving to and from said 725-acre tract in Upshur. He did move off, and petitioner George Bodkin did give him the horse. The defense of the ejectment in the. federal court was abandoned, and the said N. G. Mundy, on behalf of himself and the petitioner George Bodkin, his father-in-law, purchased and took conveyance on October 20, 1870, of this tract of 786 acres, from Camden, attorney in fact for Merchant. In the deed to Bodkin and Mundy from Boggs, Jr., for the 786 acres of land, Boggs, Jr., reserved a lien on it to idemnify him for any liens against or defects of title to the 725 acres gotten by him in the exchange. In the spring of 1876, William H. Boggs secured from Boggs, Jr., some kind of an assignment by parol contract of this lien, and in February, 1881, suit was instituted in chancery in the name of said William H. Boggs against petitioner George Bodkin and M. G. Mundy, and the administrator, widow, and heirs of Boggs, Jr., to compel said Bodkin and Mundy to have said contract, by their election, whereby said excliang-e of lands was made, either rescinded or specifically performed on their part; and in the bill and three amended bills filed in the cause the facts are set forth in minute detail, substantially as given above. In the meantime, the said N. G. Mundy, by deed dated June 9, 1877, had conveyed to petitioner's, George Bodkin and John P. Bodkin; jointly, his half interest in the land, and said petitioners answered said bills in said chancery cause, setting forth the verbal rescission of the contract of the exchange with Boggs, Jr., and the purchase by them afterwards, of the Merchant title, and that they were holding under said Merchant title; and insisting that, inasmuch as the contract had long since been rescinded, it could not be specifically enforced, and that the bills should be dismissed. On May 3, 1887, a decree was entered in the circuit court of Braxton County in said chancery cause, which adjudged that the plaintiff William H. Boggs therein was entitled to a rescission of the contract of exchange made by his father, Boggs, Jr., and Bodkin and Mundy, and to a cancellation of the deed made by said*94 Boggs, Jr., to them, and further giving-a writ of possession to him against petitioners for the possession of the 786 acres, and awarding costs against them in favor of the said plaintiff. But to this decree this express reservation is made: ‘But it is provided that this decree shall not prejudice the right of the said defendants Bodkin to assert or maintain their right and title, if any they have, to the 786 acres of land aforesaid, derived by them or either of them from or under Samuel Merchant, in any suit or proceeding in which it may be involved.’ From this decree an appeal was taken by petitioners to this Court, and on the 27th day of June, 1889, it was affirmed. See Boggs v. Bodkin, 32 W. Va., 566, (9. S. E. 891). Under and by virtue of the express reservation in said degree permitting petitioners to assert their right under the Merchant title, which had been purchased by them, they, as soon as deprived of possession under said decree, instituted this action of ejectment against the defendant George J. Arnold, to whom it had been conveyed by the said William H. Boggs almost immediately after the decision of this Court wa^s rendered, and Edward Watson, his tenant. Petitio&^ts’ declaration was filed at the August term, 1890. A motion was made to quash the notice by the defendant at the same term. Issue was made by plea in vacation; again, on the 24th of November, 1890, in court; and also on the 7th day of January, 1892, in court. On said last day a jury was impaneled, to which the evidence was submitted, and a partial argument of the case was made by counsel, and various instructions were asked by petitioners; but the court, having reached the conclusion that petitioners’ right under said Merchant title was adjudicated, notwithstanding said reservation by the decree in said chancery cause, cut short the argument of counsel, refused to give any of the instructions asked by petitioners, and gave an instruction for the defendant substantially directing the jury to find for the defendant because of said adjudication aforesaid. In this’condition the jury were sent to their room, and soon returned with a verdict for the plaintiffs in said action, whereby they found for petitioners, by metes and bounds, the seven hundred and eighty-six acres of land; and thereupon, o.i the 13th day of*95 January, 1892, the said court below rendered the judgment complained of, and set aside said verdict on motion of said defendant, and granted him a new trial; to which action of the court plaintiffs filed their bill of exceptions, and had the facts certified. The defendant, after the said verdict was set aside, on his part filed some fourteen bills of exception to rulings of the court made in said trial, and caused them to be made part of the record. Plaintiffs assign the following errors to their prejudice: First. It was error to refuse to give to the jury the seven several instructions asked for by petitioners, and set forth in petitioners’ first bill of exceptions. Second. It was clear error on the part of the court below to give on behalf of the defendant the instructions set forth in petitioners’ second bill of exceptions, holding an adjudication of the Merchant title by said decree in said chancery cause, in the face of said decree’s express reservation that it was not so adjudicated. Third. It was error for the court below to refuse to admit the record of the Stringer patent as set forth in bill of exceptions No. 3. Fourth. It was clear error for the court below, upon the evidence and the law, to set aside the verdict found by the j ury in favor of your petitioners, and award to the defendant a new trial, and your petitioners earnestly insist that they are entitled to have said .order set aside and judgment rendered by this Court upon said verdict for the said land.”
This is, without material difference, the same statement of the case made by Judge Green, in delivering the opinion of the court in the case of Boggs v. Bodkin, 32 W. Va., 566, (9 S. E. 891), except some additional matters are added, including the assignment of errors.
The errors in the first, second, and third assignments are not proper for the consideration of the Court on a motion to enter up a judgment on the verdict of the jury, as they proved to be harmless error; but they would have been proper on a motion to set aside the verdict, if it had been for the defendant.
The last assignment, being for the error of the court in setting aside the verdict of the jury, raises the real merits of the controversy, being the question of res adfudicata. The defendant insisted that the decree in the case of
In the case of Adams v. Alkire, 20 W. Va., 486, Judge SNYder says: “Nor can said deed be relied on as an estoppel against the defendants in said suit, because the decree directing the deed to be made expressly orders that ’it shall be without prejudice to any title or claim of the defendants to said land.” And in the case of Thorn v. Phares, 35 W. Va., 771, (14 S. E. 399), Judge Holt, says: “The court, under our statute, could and ought to have settled this controversy, but for some good reason the court declined to do so, and closed the decree as follows: ‘And this decree is to be without prejudice to the right and title of George Thorn to all or any part of the three hundred acres herein alloted the said William Phares, and in any controversy .therefor that may properly be had between the said claimants.’ In this state of facts, to take away a man’s ownership of land, * * * who
In the suit of Boggs v. Bodkin the following reservation was made: “Provided, that this decree shall not prejudice the right of the said defendants Bodkin to assert or maintain their right and title, if any they have, to the 786 acres of land aforesaid, derived by them, or either of them, from or under Samuel Merchant, in any suit or proceeding in which it may be involved.” This reservation was made, no doubt, under the law that a court of equity will not settle titles to lands. Cresap v. Kemble, 26 W. Va., 603. But, whatever may have been the reason, it plainly shows that the cause, as to the then defendants’ (now plaintiffs’) title, under' Samuel Merchant, was not determined on the merits, and therefore is no adjudication, and cannot be pleaded in bar to any other suit which it is involved. If the plaintiff in said chancery cause was aggrieved by this reservation, he had the right to have had it reviewed on appeal, and the defendants, if they had considered themselves aggrieved by the reservation, and that their title was established beyond dispute or controversy, had the right to have had the same corrected on appeal; but, on looking at their petition for appeal, we find that they made no special point as to the reservation being prejudicial to them, and, if they did, the Court of Appeals affirmed the decree, thus affirming the action of the circuit court in declining to pass on defendants’ title, and reserving their right to future litigation, and thereby this reser-ervation became res adjudicata, and cannot now be questioned by the then plaintiff and those claiming under him, even though the decree and its subsequent affirmation may have been erroneous. The defendant in his brief says: “It must be conceded that the court settled some point in entering a decree rescinding the contract of exchange made with Bodkin and Mundy by Boggs, and cancelling the deed.” This is undoubtedly true, and it devolves upon us to ascertain what points were settled,
The plaintiff in the chancery cause of Boggs v. Bodkin prayed for the enforcement or rescission of a certain contract of exchange, and in the latter case for the cancellation of a certain deed. Defendants denied the right of enforcement or specific execution, because the grantor in the controverted deed had not title to the land at the time of the conveyance, but held under lease from a different title, under which defendants then claimed. On consideration, the circuit court decreed that “the court being of opinion that the plaintiff is entitled to a rescission of the contract of exchange of lands made by Andrew Boggs with George Bodkin and N. G. Mundy, whereby the said Andrew Boggs exchanged 786 acres of land in the bill mentioned for 725 acres of land in the bill mentioned, and to a cancellation of the deed made by the said Andrew Boggs to the defendants George Bodkin and Nimrod G. Mundy, dated the 6th day of September, 1865, it is therefore adjudged, ordered, and decreed that the contract of exchange and deed aforesaid be, and are hereby, rescinded, canceled, and annulled, and that the defendants George Bodkin and John P. Bodkin do surrender to plaintiff the possession of the 786 acres of land described in the said deed, and a writ of possession is awarded the plaintiff to cause him to have possession thereof.” This was
In arriving- at this conclusion certain points at issue had to be determined by the court, and they then becainé res adjudicata. Turning to the opinion of the Coixrt as announced by Judge Green, we find he says: “Yet in 1S60 said Andrew Boggs took a lease of the whole 2,000-acre tract, including this 786 acres which bad been patented to David Alkire, from Samuel Merchant, claiming under the Stringer title; and if he had any adverse possession under the Alkire title, which commenced in 1854, this hostile pos-sesion was broken up by his claim as lessee under the Stringer title in 1860 and afterwards.” Further down on the same page he says: “This title, if not actually worthless, was at least so regarded by himself, and they (the defendants) ought not to be compelled to run the risk of having this 786-acre tract, when it appears that said Andrew Boggs, who ought to know the character of his title, obviously regarded this risk as so great that he thought the loss of it by them almost a certainty.” These extracts show the manner in which the court reached the conclusion not to specifically perform, but to rescind, the contract, and the points decided by them in so doing. These points, at least, were determined by them: (1) That Andrew Boggs’possession at the time he executed the deed sought to be canceled was under the Merchant lease or title. (2) That his own or Alkire’s title was worthless, and so regarded by himself. (3) That in restoring him to possession it was to the possession held under the Merchant lease.- Under section 7, chapter 71, Code, the only interest that the grantees took by virtue of the deed from Andrew Bog-gs was his right to possession under the Merchant lease, which was the only right or interest in said real estate which the grantor “could lawfully convey or assure;” and the court, in canceling the deed, could only restore him to the right or interest that passed thereby. (4) And that, so far as the Merchant title was drawn in question by the pleadings, it was fully recognized and established beyond controversy.
The reservation in the decree is not that the validity of
The only question in issue left undisposed of by the decree was whether the plaintiff or defendants were entitled to possession under the Merchant title, and the court restored this possession to the plaintiff, but reserved to the defendants the right to further litigate this issue; and in restoring the plaintiff to possession as the tenant of Merchant, if defendants should thereafter establish that they were the lawful owners of the Merchant title, thereupon they would become the landlords and plaintiff their tenant. That these were the adjudications of the court is beyond all question, and we cannot inquire into their wisdom or legality, but we are bound by them as questions forever at rest, and not open to future litigation between the parties or those in privity with or claiming under them. Such being the truth, there can be no hesitation in holding that the circuit court erred in giving the instruction asked by the defendant in this present ejectment suit, and also erred in setting aside the verdict of the jury, if there were no other grounds for so doing, which remains-for us to inquire.
The defendant reserved a large number of exceptions during the progress of the trial, none of which is it necessary to specially notice, if the undisputed facts and legitimate evidence sustain the verdict of the jury. As soon as the plaintiff in the chancery cause, or those claiming under him, were restored to possession of the property in controversy, they began, in dereliction of the rights of their landlord, to assert and set up an adverse possession under the Alkire title, and thereby terminated the tenancy, and gave the landlord the right to demand a restoration of the possession. Plaintiffs then instituted this action of ejectment against this defendant in possession and claiming adversely. It is now the settled law in this State that it is only necessary for the plaintiff, to maintain the issue on his part, to show that he had exclusive possession of the property in controversy for the period of ten years under
The defendant, to establish this on his part, introduced in evidence : (1) An entry of this same land by David Alkire, 22d July, 1854, and also plat and certificate of survey made 11th October, 1855; also grant from the commonwealth of Virginia, dated 1st July, 1856; also deed from P. W. Holden and others to W. H. Boggs, October 4, 1884; also a deed from W. H. Boggs and others to defendant, dated 3d December, 1887. These were to establish a better title. Then, to destroy the plaintiffs’ adverse possession, he introduced the deed from Andrew Boggs, Jr., to George Bodkin and N. G. Mundy, dated 6th September, 1865 for said land; also portions of the record in the chancery cause of William H. Boggs against George Bodkin and others; also a certificate of the auditor showing seven hundred and eighty-six acres of land assessed on the land books of Braxton County for the year 1872, and for the year 1873, which was returned as “improperly charged,” and afterwards returned delinquent for the non-payment of taxes, and sold and purchased for the State; also record of the ejectment suit of Samuel Merchant against George Bodkin, in the United States district court at Clarksburg, by which record it was shown that suit was begun on the 16th day of September, 1869; on the 1st day of April,' 1870,
The defendant claimed that George Bodkin and Nimrod G. Mundy took possession of the land under the deed from Andrew Boggs, Jr., to them, dated the 6th day of September, 1865, and that they have ever since held such possession under said deed, and, the Alkire title belonging to defendant, their possession could not be adverse to it. The plaintiffs, to rebut this, show that Andrew Boggs, Jr., took a lease for this land from Samuel Merchant through his ag-ent, G. Camden, in the year 1860, and that after he deeded the land to George Bodkin and Nimrod G. Mundy, and Samuel Merchant brought his suit in ejectment against them in 1869, they notified Andrew Boggs, Jr., of that fact, and required him to defend it. He then admitted that his title was bad, refused to defend the suit, the contract between them was canceled, and he advised them to buy of Merchant; that, acting on his advice and admissions, they did buy of Merchant, and took the deed from Camden to Mundy of the 20th of October, 1870. The plaintiffs insist that the defendant is estopped from setting up the Alkire title (1) by the lease taken under the Merchant title by Andrew Boggs, Jr., in 1860; (2) by his conduct in refusing to defend the ejectment suit, and admitting that his title was bad, and that Merchant’s was good, and advising his grantees to buy of Merchant. There are some other questions urged, reaching further back in time, but, if plaintiffs are right in either of the two propositions above, it is not necessary to examine into matters so remote from the real controversy.
The law is that, if one claiming title to land takes a lease of the same under a different title, he cannot afterwards deny his landlord’s title, although he continues to hold over after his lease expires, unless his landlord have notice of an adverse claim by some act open and notorious. Tayl. Landl. & Ten. § § 89, 705-707; Wilcher v. Robertson, 78 Va., 602; Campbell v. Fetterman, 20 W. Va., 398. “It is only where there is fraud or mistake in consequence of which
In 7 Am. & Eng. Enc. Law, 18, the law is laid down that, “where the owner or person having an interest in property represents another as the owner, or permits him to appear as such, or as having complete authority over it, he will be estopped to deny such ownership or authority against persons who, relying on his representations or silence, have purchased or acquired interests in the property.” This is founded on the principle that no man can take advantage of his own wrong. Even if his title was ever so good, having deceived them into purchasing under another title, he and his vendees are forever estopped, from asserting-his title against those deceived by him or their vendees. “To defeat an action of ejectment, an outstanding title must be a present subsisting operating legal title, on which the owner could recover if asserting it by action.” Wilcher v. Robertson, 78 Va., 602. Change the parties to this action, and allow the defendant to sue on his Alkire title, he could not possibly recover, because the Merchant deed, ten years’ possession, and the two estoppels above referred to would completely bar his action. Neither, then,
With regard to the suit of Parsons v. Riley, 33 W. Va., 464, (10 S. E. 806), it is only necessary to say it has no reference to the proceedings of any court of record, but only applies to justices’ proceedings, thfey not being authorized to permit the taking of nonsuits after hearing a case on its merits.
The undisputed facts in this case fully establish the plaintiffs’ right to recover possession of their land, of which they have been unjustly deprived. The plain duty of the court is to reverse the judgment of the circuit court in setting aside the verdict, and enter up judgment thereon, and direct an execution to restore plaintiffs to the possession of their property, which is accordingly done.
Reversed.