69 W. Va. 313 | W. Va. | 1911
A motion was made to reject the evidence because the bill of exceptions does not identify it; but there is the evidence found in the bill. It is certified by the stenographer as the evidence in the case, giving names of 'witnesses, and the order of the judge showing his execution of the bill naming and identifying the witnesses, and sajdng that the evidence is duly certified by the stenographer. It is also said there was no exceptions to the decision of the judge overruling the motion for a new trial; but the bill of exceptions say there ivas.
Therefore, a new trial should have been granted, not exactly on the theory that it was contrary to the evidence, but without evidence to support it. That the verdict is without evidence to support it is another ground for a new trial. This occurs where there has been no proof whatever of material facts or facts in issue, or where the evidence is plainly insufficient to warrant the verdict. See the volume of cases cited for this proposition in 10 Encyclopedic Digest of Va. and W. Va. Reports, 453, 454. I say that this verdict is also contrary to law. Why? Because there are certain essential points that the plaintiff must prove and his evidence does not do so. The verdict is contrary to the law of disseisin and adverse possession between cotenants. Same authority, page 454; Ritz v. City, 45 W. Va. 262; Manss-Bruning Shoe Co. v. Prince, 51 Id. 510. This Court is unanimous in the opinion that if there had been a demurrer to evidence this Court would render a judgment for the defendant, for the coal claimed by her in her disclaimer, except the one-eighth of coal in 1355 acres mentioned in her disclaimer, she not having given any evidence on the trial as to that eighth. I would myself not hesitate to do so as it is, for reasons which I state in Hoylman v. Boalroad, 65 W. Va. 264.
As we remand the case we may advert to some other matters in the record. It is said there was no issue and this is relied upon as ground for a reversal. It is hardly worth while to mention this, because I find two entries of the plea of not guilty. Or do counsel mean that there is no similiter? That is dispensed with by Code 1906, ch. 134, § 3.
It is assigned as error that the court admitted for the plaintiff evidence that Preston S. Clark posted at the coal bank a notice warning persons against entering the coal entry. This
A lease was introduced by which Clark leased to Walton the coal bank. We do not think it was error to admit this as an item under the claim of adverse possession, though standing alone it would have little effect, as it would not bring home notice of ouster. Evidence not contradicted shows that Sherman Clark also gave people leave to take coal.
There was admitted a paper reading: “This receipt is to show I have no interest in the 350 acres that Preston sold to Cherry River Company. This the 20 day of January, 1900. S. H. Clark.” I do not see that this bears on the question of adverse claim. Its only tendency is to show a disclaimer of title. But this rude instrument cannot confer title of its own force. As it seems Clark places great reliance on this paper, it may be well to discuss it. It is a parol disclaimer, not a sealed instrument. It is not a deed. It has' no parties, no consideration. The legal title to land was in Sherman Clark, for coa.1 in place is part of the land, and when legal title is vested a parol disclaimer cannot be devested except by deed or record. Our statute of frauds requires a deed. Such is the doctrine stated in oúr former decision in this case. See Wade v. McDougle, 59 W. Va. 114; cases cited in High v Pancake, 42 W. Va. 607; Minor’s Law Real Prop. § 1248. I need cite no authority to prove that an agreed destruction of a deed does not destroy the estate in its grantee. It was error to admit this paper, and this would reverse the case. We have sometimes said that where there is other ground for reversal we will not pass on evidence. That depends on the evidence. If there is apparent probability of the case being-bettered, perhaps that practice may in some cases be proper; but that is a matter of discretion. We can pass on the evidence if we choose. When we reflect, we may have gone too far in so saying. The party makes a motion for a new trial. The circuit court is bound to pass on it. Why is not this Court likewise bound to do so? If there should be a new trial what we say of the evidence can
It is pointed out that the motion for a new trial does not specify grounds. That does not matter, if the court deems it proper to look through the record for them. It need not do so in voluminous evidence, without specification; but it may do so.
Judgment reversed, verdict set aside, and case remanded.
Reversed and Remanded.