Bradshaw v. Booth

129 Va. 19 | Va. | 1921

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

[1, 2] 1. It is shown by the evidence in the case that the defendant was in actual possession of the two parcels of land in controversy at the time of the institution of the action ; and the defendant’s first assignment of error is taken to the action of the trial court in refusing to permit him to introduce in evidence the record of an action of trespass in which, according to the parol evidence in the instant case, the defendant in 1917 sued the plaintiff in the instant case alleging trespass committed on said two parcels of land in 1914 and recovered a verdict and judgment. Such verdict and judgment conclusively established the fact as between these parties that the defendant in the instant case was either in, or “entitled to the possession of such parcels of land at the time that action was instituted, and the trial court was in error in refusing to admit such record as evidence on that subject. The defendant was allowed to testify that such action was instituted by him with such result and he was entitled to introduce the record in corroboration of his verbal statement. But if such record had been admitted in evidence it would have established nothing more than the fact that defendant was, in 1914, either in or entitled to the possession of the parcels of land mentioned. The title of the respective parties was not in issue in the action of trespass and was not adjudicated by the judgment therein. The record aforesaid was therefore inadmissible in the instant case on the issue of title involved therein, except upon the claim of title by the defendant by adverse possession. 2 Black on Judgments (2nd ed.), sections 506, 769; 23 Cyc. p. 1532. The defendant did introduce testimony to the effect that he claimed title to both parcels of land in controversy by adverse possession; but the utmost that could be said in favor of such testimony is that it showed such possession of one of the parcels of land involved in the action for eight years and of the other for seven years only, next preceding the institution of the action in the instant case, which included the possession aforesaid in 1914. There was no evidence for defendant even tending to show such adverse possession for a longer period of time.. The record in question, therefore, if it had been admitted: in evidence upon the issue of adverse possession of the-defendant, would have been unavailing. Hence the error cf the court below in not admitting it in' evidence was harmless.

[3, 4] The position is taken in the brief and argument before us for the plaintiff, to the effect that, as the defendant pleaded only the general issue and did not plead the statute of limitations specially, no evidence of adverse possession was admissible in behalf of the defendant and, therefore, the trial court committed no error in refusing to admit said record as evidence. As to this we may say, in the first place, that the question of whether the statute of limitations must be pleaded specially, in order to be relied on in such a proceeding as this, is not presented to us for decision by the record before us, since it does not appear that the lack of such pleading was the objection to such evidence which was made in the court below; and testimony to the same effect and other testimony on the subject of adverse possession was repeatedly introduced by the defendant and admitted by the court without objection on the part of the plaintiff and without motion at any time to exclude it. Secondly, the disposition we have made above of this subject renders it unnecessary for us to here decide whether it is necessary in a proceeding such as that before us for the statute of limitations to be specially pleaded in order to render evidence of adverse possession admissible.

We feel that we should say, however, in this connection the following: It is urged in behalf of the plaintiff that we decided in the case of Christian v. Bulbeck, 120 Va. 74, 90 S. E. 661, in what is said at p. 82 of 120 Va., at p. 663 of 90 S. E., that adverse possession is a defense which can be made in the statutory proceedings such as is the instant case, only under a plea of the statute of limitations. The issue in that case was whether such defense could be made at all in such a proceeding. We held that certainly under a plea of the statute of limitations adverse possession is a defense which may be made in such a proceeding. We there left undecided whether such plea is or is not necessary in such a proceeding in order to admit the defense of adverse possession. It is well settled that such plea is not necessary in an action of ejectment and that adverse possession is, a defense which can be made in that form of action under the general issue. James River, etc., R. Co. v. Robinson, 16 Gratt. (57 Va.) 434; Reynolds v. Cook, 83 Va. 817, 3 S. E. 710, 5 Am. St. Rep. 317; Burks’ Pl. & Pr., sec. 122, p. 206. But this subject may be said to be regulated, in part at least, in actions of ejectment by the provisions of the statute. Code 1919, sec. 5463. But see Wright v. Rabey, 117 Va. 884, 890, 86 S. E. 71. We, however, also here leave undecided, because not necessary for the decision of this case, the question of whether in a proceeding such as this, under the statute, Acts 1912, p. 133 et seq., the statute of limitations must or need not be pleaded in order to admit the defense aforesaid thereunder:

[5] The following questions, which are presented by the record before us for our decision, will be passed upon in their order as stated below:

3. Was it error in the trial court to refuse to give the following instruction asked for by the defendant, namely:

“(1) The court instructs the jury that the burden in this case is upon the plaintiff, Booth, to prove to the satisfaction of the jury that he had a complete legal title to the premises claimed by him, and the right to the possession thereof at the institution of this suit, before he can recover and that he must recover, if at all, on the strength of his own title and cannot rely on any weakness of the title of the defendant, and that in order to recover he must prove affirmatively that he is entitled to the premises, and that the defendant is not entitled, before recovery can be had

And in giving only the following instruction to the jury, namely:

“The jury are instructed that the question before them is the location of the true boundary line between the lands of plaintiff, Isham Booth, and the lands of the defendant, John W. Bradshaw, and they are to determine that from all the evidence in this case; and if from, the evidence they can determine the true line, they should describe that line as accurately as possible, indicating the same by reference to any plats or surveys offered in evidence, or otherwise as may be proper?”

This question must be answered in the affirmative.

[6, 7] Certainly when, as in this case, the plaintiff has never had actual or constructive possession of any part of the land in controversy, he must show a complete legal title to the premises in order to recover. If he had had a prior possession to that of the defendant and the possession of the latter had been obtained by intrusion and trespass without color of title, such prior possession would have raised a presumption of title in the plaintiff which would have been sufficient to show a complete legal title to the premises in him. Rhule v. Seaboard Air Line Ry. Co., 102 Va. 343, 46 S. E. 331. Such a situation is sometimes stated by the authorities to constitute an exception to the long and well established rule of law which is laid down by the authorities as follows: “* * * A party must recover on the strength of his own title and not on the weakness of his adversary’s title. If it appear that the legal title is in another, whether that other be the defendant, the Commonwealth, or some third person, it is sufficient to defeat the plaintiff.” 5 Encyc. U. S. Sup. Ct. Rep., pp. 699, 700. As appears from a consideration of the authorities, the situation mentioned is not really an exception to the rule stated, because in such case the presumption aforesaid supplies the needed proof that the legal title is in the plaintiff. See authorities cited on this subject in note to 1 Va. Law. Reg., p. 278 et seq. There are also other exceptions to the rule (see Suttle v. R. F. & P. R. Co., 76 Va. 284), which also would seem to be more apparent than real. But, however that may be, none of such exceptions embrace the instant case, and in a case such as that before us, where the plaintiff has never had any actual or constructive possession of any part of the land in controversy the rule above referred to is unquestionably applicable. None of the acts relied on by the plaintiff to evidence possession amount to anything more than a trespass on the land in controversy. And there is no evidence in the cause even tending to show that the plaintiff was entitled to any part of the land in controversy by adverse possession. As said by the Supreme Court in the case of Christy v. Scott, 14 How. 282, 292, 14 L. Ed. 422, 426: “The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s, is applicable to all actions for the recovery of property.” The proceeding before us is an action for the recovery of property, since, under the statute (Laws 1912, c. 74) : “The judgment of the court shall, unless reversed, forever settle and determine and designate the true boundary * * * lines in question and be binding upon the parties to (the) petition, their heirs, devisees and assigns.” See Christian v. Bulbeck, supra (120 Va. 74, 90 S. E. 661).

[8-11] (a) The refusal to give the instruction first and the giving of the instruction second above mentioned was necessarily prejudicial to the defendant in so far as the parcel of land “C D E” shown on the above diagram is involved; because the trial court thus left the jury without the aid of any standard fixing what is sufficient evidence of title to real estate. The jury were left wholly'without guidance on this subject and free to fix the location of the boundary line “B C D” shown on said diagram without any evidence of title, because as to the parcel of land “C D E” there was no evidence of title in the plaintiff whatsoever in the record. The following, which is said in the opinion of the court in the case of Grigg v. Brown, 126 Va. 652, 102 S. E. 212, is equally applicable to the instant case, namely: “There being no evidence in the case even tending to show any actual possession of any part of the land in controversy by the plaintiffs or any of their predecessors in title, * * * the plaintiffs must rely upon their paper title to sustain their claim of ownership of such land.” In the instant case there was in fact no evidence before the jury showing title of the plaintiff up to any definite boundary line on the side of the plaintiff’s land extending from “B” southward. It is elementary law that the plaintiff in the instant case, claim-mg title by deeds, must rely upon such deeds to define specifically the boundaries of his claim. Grigg v. Brown, supra. It is also elementary law that extrinsic evidence is admissible to locate on the ground the boundaries thus designated in a general description thereof, so as to identify the land conveyed, and deeds or grants conveying adjacent lands referred to in such general description and extrinsic evidence applying the boundaries therein designated to their proper subject matter are also admissible in evidence. 5 Cyc. 958, 962; Overtone v. Davisson, 1 Gratt. (42 Va.) 212, 222, 42 Am. Dec. 544; Reusens v. Lawson, 91 Va. 232, 21 S. E. 347; Sulphur Mines Co. v. Thompson, 93 Va. 293, 25 S. E. 232. And the declarations of land owners made during the time of their ownership, which are adverse to their interest, and even general reputation on the subject, are admissible in evidence as tending to show the location of boundaries designated by grants, deeds or wills. But such declaration and general repute to be admissible in evidence must have reference to monuments or other delineation on the ground of the extent of the boundaries designated in some evidence of title. Christian v. Bulbeck, supra, (120 Va. 74, 98, 90 S. E. 661) ; Grigg v. Brown, supra, (126 Va. 652, 102 S. E. 212). The extent of boundaries of land, and thus the title to land, cannot be established wholly by parol evidence, unsupported by written evidence of title, where title by adverse possession is not involved and where the case is one in which the title claimed is by deed and must have been derived by deed, if derived at all; for to hold otherwise would be to permit parol evidence to become an independent source of title, which by the weight of authority, and certainly in Virginia, is not permissible. Suttle v. R. F. & P. R. R. Co., 76 Va. 284.

[12] In short, on the subject we have under consideration the same principles are inevitably involved as are involved on the same subject in actions of ejectment. Where the plaintiff to recover relies on title to land up to a certain location of its boundary on the ground, although the defendant may in general terms admit by the pleadings that the plaintiff has title to some land claimed by the latter, yet when the defendant denies that the plaintiff’s title extends to such location, the plaintiff is inescapably put to his proof of such a title, by evidence of title which the defendant cannot be heard to dispute; and such evidence must trace the title either from the Commonwealth or other common grantor— the Commonwealth being, of course the original common grantor under the system of the tenure of lands prevailing in Virginia. We are of opinion, therefore, that the same rule which is applicable in such case in an action of ejectment is equally applicable in such a proceeding as that in the instant case.

It is admitted in argument for the plaintiff that in an ejectment suit involving the same facts as are involved in the proceeding before us, the established rule is that the instruction aforesaid which was refused should have been given. See as some of the authorities on the subject, McKinney v. Daniel, 90 Va. 702, 19 S. E. 880; Va. Coal & Iron Co. v. Keystone Coal & Iron Co., 101 Va. 730, 45 S. E. 291; Carter v. Wood, 103 Va. 68, 48 S. E. 553; Reusens v. Lawson, 91 Va. 226, 254, 21 S. E. 347; Buntin v. Danville, 93 Va. 203, 24 S. E. 830.

[13] (b) The error aforesaid in the action of the trial court with respect to said instructions was, however, harmless in so far as the parcel of land, “a B A” shown on said diagram, is involvedbecause there was evidence in the case of title in the plaintiff defining the boundary of that parcel of land. That evidence consisted of the reference in the deeds, in the plaintiff’s chain of title from the common grantor, to the line of defendant’s Beasley land and of the designation of such line, in the deed from such common grantor to Albert Beasley in the defendant’s chain of title, as being “left of Ellington’s Mill road.” And it was for the jury to weigh the conflicting evidence as to the location on the ground of such boundary line. There was sufficient evidence for the plaintiff before the jury to have warranted them in finding the location on the ground of the line “A B” as designated in said evidence of title of the plaintiff. Hence the finding of line “A B” would have been warranted and doubtless it would have been found, just as it was found, if instruction No. (1) asked for by plaintiff had been given and the instruction of the court which was given had not been given. It is manifest from the verdict itself that the jury believed the testimony of the witnesses for the plaintiff on the. subject of the location of the Ellington road at the time of the deed to Albert Beasley and disbelieved the conflicting testimony of the witnesses for the defendant on the subject. This concludes such question of fact in favor of the plaintiff. Considering such fact as so determined, the jury, under the evidence of title in the case, could not have properly found any other verdict than that which they did find with respect to the dividing line between the land of the plaintiff and the defendant’s Beasley land.

[14] 4. Was it error in the trial court to refuse to give the following instruction asked for by the defendant, namely:

“ (2) The court instructs the jury that the plaintiff cannot recover by showing a conflict of claims between himself and the defendant, but he must show affirmatively by a preponderance of the evidence that his claim to the premises is positive, valid and complete, as the possession of the defendant, or those under whom he claims, of the premises claimed, is valid against every one, except a plaintiff proving a superior title?”

• For the same reasons stated above in the discussion of the action of the trial court on the other instructions above mentioned, we are of opinion that the action of the court here in question was error; that such error was harmful in so far as the “C D E” parcel- of land in controversy is concerned and therefore reversible error; but was harmless and therefore not reversible error in so far as the “a b B A” parcel of land in controversy is concerned.

[15] 5. The assignments of error raise the question as to whether the refusal of two other instructions asked for by the defendant, Nos. (3) and (4) was error.

On this subject it is deemed sufficient to say that there are expressions in these instructions which are not entirely accurate as applicable to the evidence in the instant case. Moreover, they merely elaborate the proposition of law enunciated in instructions Nos. (1) and (2) above quoted, and the giving of additional instructions on this point would have unduly emphasized this subject before the jury. Hence upon another trial of the case, if such is had with respect to the “C D E” parcel of land, the additional instructions'Nos. (3) and (4) should not be given.

[16] 6. Was it error in the trial court to refuse to give the following instruction, namely:

“(5) The court instructs the jury that if they believe from the evidence that the plaintiff at the time of the purchase of real estate involved in this controversy in 1905 by the defendant, was given notice, or knew of the survey of said realty as made by or on behalf of the defendant at or about the time of said purchase, and stood by and permitted or acquiesced in such survey, without making known such alleged claim to the purchaser or his representatives, as to ■ any part of said property, and that he furthermore acquiesced in said survey as established at that time, or assented thereto at any time prior to the institution of this action, that he is now estopped from asserting any such adverse claim to any part of said property as shown by said survey in this controversy?”

This question must be answered in the negative.

[17] This instruction does not embrace any statement touching the influence of the acquiescence mentioned upon the subsequent conduct of the defendant to his prejudice, or predicate that such acquiescence was a material inducement to such conduct, or that such conduct would not have occurred but for such acquiescence, or contain any like statement which would properly base the instruction upon the doctrine of estoppel. The instruction rests upon the position that the mere acquiescence of the defendant mentioned estopped him from afterwards asserting any adverse claim of title inconsistent with the validity of the survey in the accuracy of which he had acquiesced. As said in Cox v. Heuseman, 124 Va. 159, at p. 166, 97 S. E. 778, at p. 780, of the same position taken in the instruction there involved: “Such is not the law.” It is well settled by the weight of authority, and certainly in Virginia, although contrary holdings may be found elsewhere, that such mere acquiescence does not operate as an estoppel in such case, for the reason that, if this were so, such acquiescence would be given the efféct of an independent source of title. As said in Reynolds v. Wallace, 125 Va. 315, at p. 318, 99 S. E. 516, 517, quoting from Cox v. Heuseman, supra (124 Va. 159, at p. 166, 97 S. E. 778, at p. 780) : “Acquiescence and admission as to boundaries may become very proper and very important evidence in determining where the title boundaries are, and such acquiescence and admissions may exist or be made under circumstances which will estop a landowner from denying them; but they are not in themselves independent sources of title.” And continuing, the following is said in the Reynolds v. Wallace Case, quoting from McMurray v. Dixon, 105 Va. 605, at p. 611, 54 S. E. 481, at p. 483: “No mere parol agreement to establish a boundary and thus exclude from the operation of a deed land embraced therein can divest, change or affect the legal rights of the parties growing out of the deed itself.” See also the authorities cited on this point in the last named case.

[18] 7. There remains for our consideration the assignment of error that the verdict was contrary to the law a,nd the evidence. What is said above in effect disposes of all of the questions raised by such assignment, except that no specific reference is above made to any agreement there may have been of the respective parties plaintiff and defendant and of a predecessor in title of the defendant touching the location of the boundary lines in controversy, concerning which there is evidence in the case as set out in the statement preceding this opinion. As appears from the authorities just quoted, however, the doctrine is firmly settled in Virginia, that such agreements, if they existed, could not have conferred title. If any such agreement was found by the jury to exist it was proper evidence for the consideration of the jury on the subject of the true location on the ground of the boundary lines in controversy, in so far as such boundaries were designated in the evidence of title in evidence; but no further. Hence, for the reason above stated we are of opinion that such verdict was not contrary to the law and the evidence in so far as the boundary line between the land of the plaintiff and the defendant’s Beasley land is concerned, but that the contrary is true of the verdict in so far as the boundary line between the land of the plaintiff and the defendant’s Ponton land is concerned.

The foregoing disposes of all of the assignments of error in the case.

For the reasons above given the judgment under review will be affirmed in so far as the boundary line from “A” to “B,” and the parcel of land “a b B A,” shown on said diagram are concerned; but it will be set aside and annulled in so far as the boundary line from “B” to “D” and the parcel of land “C D E,” shown on said diagram is concerned; and the case will be remanded for a trial de novo upon the question of the true location of the last named boundary line and of whether the plaintiff is entitled to recover the last named parcel of land, if the plaintiff should be so advised; such new trial to be had not in conflict with the views expressed in this opinion. The plaintiff in error, the defendant in the court below, as the party substantially prevailing, will recover costs.

Reversed in part and remanded.