50 W. Va. 445 | W. Va. | 1901
W. W. Bowman complains of a judgment of the circuit court of Randolph County rendered against him in an action of ejectment the 2d day of February, 1898, in favor of Dewing & Sons, on a demurrer by him to the evidence.
This case was here once before, 37 W. Va. 117. Since then two trials have been had, both resulting in favor of the defendants. Defendants questioned the right of the plaintiff to compel them to join in his demurrer to the evidence, but as the court’s ruling was in their favor they have now no complaint on this score, unless this Court be of the opinion the demurrer was improperly determined.. According to the holdings of the courts of other states a demurrer to evidence in a case of- this character where the affirmative of the issue is with the plaintiff, would be improper. It being held that a party on whom rests the burden of the issue, cannot successfully demur to the evidence, as his own evidence cannot be considered on demurrer. 6 En. Plead. & Prac. 440; Goodman v. Ford, 23 Miss. 592; Stiles v. Inman, 53 Miss. 469; Fritz v. Clark, 80 Ind. 591; Stanley v. N. W. M. I. Co., 95 Ind. 254; Lyons v. Terre Haute R. Co., 101 Ind. 420; Picket v. Isrigg, 6 Fed. Rep. 676. Such, however, has not been the practice in this State. The rule has been that cither party may demur .and that all the evidence must be certified and considered by the court, giving the demurree the full benefit of all
In the 6 En. Plead. & Prac. 444, it is said under title of exception to the general rule that, “In two states where the practice of inserting all the evidence on both sides into the demurrer obtains, the rule is not quite so broad. The defendant (demur-rant) is considered to have waived all his evidence which is contradictory to"that of the other party, all evidence the credit of which is impeached and all inferences from his evidence which do not necessarily flow from it.” The two states which are an exception to the rule that “the demurrer is only applicable to the evidence of the party holding the affirmative of the issue,” are Viriginia and West Virginia. Green v. Judith, 5 Rand. 1; Umbleman v. Insurance Co., 6 W. Va. 508; Gunn v. Ohio River R. R. Co., 42 W. Va. 676; Shaver v. Edgell, 48 W. Va. 502, (37 S. E. 664); Maple v. John, 42 W. Va. 30; Talbott v. Railway Co., 42 W. Va. 560; Teal, Admr. v. O. R. R. Co., 49 W. Va. 85. If the rule stated in Bennett v. Perkins, cited, is to be adopted in this State, the plaintiff having the affirmative of the isue in an ejectment case cannot demur to the defendant’s evidence'without waiving all his' own evidence and thus virtually allow the case to be decided against him, for ho must recover on the strength of his own title and without evidence he has no title. The proper rule on demurrer to evidence in this State appears to be that the court should consider the evidence on both sides as though the demurrer was a motion to set aside the verdict of a jury in favor of the demurree, and if the court w.ould not set aside such verdict on consideration of the whole evidence it
There is one element that it seems to me the court overlooked or failed to take into consideration in that case, and that is that the sale of David Golf, commissioner, was wholly void from the fact that the land was not covered by nor forfeited under the William Ely grant and the court was without jurisdiction to make such sale. Twiggs v. Chevallie, cited. Section 2, acts 1842, was not intended to apply to void sales. It is in these words: “And be it further enacted, that in all cases of sale under the provisions of the acts above referred to, if the commonwealth or literary fund shall have required title to the same land by forfeiture in different names, all right, title and interest which the commonwealth or literary fund may have acquired or shall acquire by any forfeiture of the same shall be transferred to and vested in the first purchaser, and it shall not be lawful to resell the same for any forfeiture as aforesaid.” The court of appeals of Virginia in construing this provision held, “Hand is forfeited to the commonwealth under distinct titles. TJpon the proceeding to have the land sold under either title, the sale and conveyance passes all the title vested in the commonwealth.” Smith et al. v. Chapman, 10 Grat. 445. In the present case the land was not forfeited under the William Ely title, but the sale and deed were void. Hence they furnish no basis to which another forfeited title covering the land could attach. To make the act apply the land must be covered by and be forfeited under both titles. This the law says in words “if the commonwealth or literary fund may have acquired title to the same land by forfeiture in different names.” And it nowhere provides that if land be sold under the forfeiture of a title which does not cover it, such sale shall be valid to carry the commonwealth’s title. The act assumes that the sale must be under a forfeited title under which it is included. It makes no provision for void sales.
Plaintiff having shown nothing in evidence but a mere color oí title by deed under a decree founded on a false report, and possibly good only as to such title as may have vested in the State at that time, and the defendants having shown a better title the court committed no error in overruling the demurrer to the evidence. The judgment is affirmed.
Affirmed.