40 W. Va. 300 | W. Va. | 1895
This is an action of ejectment brought in the Circuit Court of Mercer county on the 12th day of March, 1890, in which there was a trial on plea of not guilty, and verdict for defendant, Perdue; motion by plaintiffs to set the same aside and award a new trial overruled, and final judgment for defendant on the 15th day of January, 1892, to which this writ of error was allowed.
“Second. Plaintiffsalsoofferedinevidenceas a part of their claim of title and as color of title a certain deed from James Hector to Obadiah Belcher, and a deed from Obadiah Belch-er to Chrispianos Belcher. The court refused to allow the record' and the two deeds to be read in evidence to the jury, and plaintiffs excepted.”
The plaintiff in an action of ejectment must recover on the strength of his own title, and the defendant is not called upon to give up the possession to any one who does not show himself to be the legal owner, unless he is in possession under the plaintiff’s title, or has entered upon and ousted the plaintiff without title or authority.
The commonwealth being the fountain head from which ownership of land is mediately or immediately derived, the plaintiff generally begins by tracing back his title to the land in controversy to that source; and land in a state of nature of which no actual possession has been had he can, in general, recover in no other way. But where the land has been held in actual possession by himself, or by some predecessor under whom he claims, long enough to make the title good by adversary possession, he may show himself entitled to recover without being able to connect himself with the commonwealth. The order in which he introduces his claim of paper title is a matter generally left to his own convenience, and, although he may not be able to trace the legal title back from himself to the commonwealth by reason of the defective acknowledgment of some deed, or from any other cause, he is permitted nevertheless to go back as far as he can — in fact to introduce any and all the paper
The first deed offered by plaintiffs and ruled out by the Circuit Court is a copy of a deed from James Hector to Robert Belcher, dated the 11th day of May, 1842, purporting to sell and convey a certain boundary of land supposed to ■ contain one thousand five hundred acres, signed, sealed and delivered in the presence of three witnesses; but it was proved before the clerk by but two of the witnesses, whereas, as the law then was, it was necessary to be proved before the clerk or court by the three witnesses before it could be properly admitted to record. See 1 Rev. Code 1819, p. 362, §§ 1-6. The deed, therefore, not having been duly admitted to record, a copy from such record was not competent evidence. The second copy of a deed excluded by the court was of a deed made by James Hector to Obadiah Belcher, dated the 11th day of May, 1842, for two thousand five hundred acres, executed in the presence of three witnesses, but admitted to record on the 11th day of July, 1845, after being proved before the clerk of the County Court of Mercer county by the oaths of but two) of them. Such copy was properly rejected as incompetent evidence for the same reason as the first, there being no law authorizing it to be admitted to record on proof by less than three witnesses. The Code of 1849, taking effect on the first day of July, 1850, was the first statute to reduce the number to two. See Code, 1849 (Ed. 1860) p. 569, c. 121, s. 2. The next paper offered in evi- . dence by plaintiffs was) an office copy of a deed dated May 12, 1842, from Obadiah Relcher to Chrispianos Belcher for one thousand five hundred acres, admitted to record on the 9th ■day of February, 1846, on proof before the clerk by but two of the three subscribing witnesses, which was also properly ruled out for the same reason. And, even if competent, there is nothing to show that they were relevant, for there is nothing on their face showing that they covered in whole or in part, the land in controversy; nor was any such proof'offered, nor any statement made that plaintiffs expected to follow them up with any such evidence.
Can it be said that this record is res inter alios aeta, when the law did not permit the plaintiffs to make him a defendant, but did give the landlord such right, and the notice of the suit gave him the opportunity to controvert the plaintiffs7 claim, and resist their demand? Still such a judgment by default against the tenant is so obviously dangerous, as being exceptionally'open to the temptation of abuse with serious consequences, that if it were necessary to decide it, I should, as now advised, be reluctant toi hold the landlord to have been a party to such first suit, within the meaning of the term as used in the statute, as this could only be done by construing the term “party,” as used in 'section 35 of chapter 90, to comprehend the party in interest, and that the landlord in this case was a party by representation. But, without giving it a'conclusive effect, there arei other grounds upon which the competency of the excluded record can be safely rested, and among them the one first noted, viz.: that it proves Witten’s possession and defendant George W. Perdue’s want of possession in 1873, when the writ of possession was executed. See 2 Herm. Estop. p. 224, citing Clarkson v. Stanchfield, 57 Mo. 573; Mitchell v. Davis, 23 Cal. 381; Chirac v. Reinicker, 11 Wheat. 280; Jackson v. Hill, 8 Cow. 294.
The evidence tends to prove that Silas Perdue was the tenant of George W. Perdue; and the judgment and writ of possession executed against Silas, putting the plaintiff Wit-ten, who claimed in fee simple for himself, into possession, at least had the effect of interrupting and changing the character of the possession; and such record, as already stated, was to that extent and for that purpose relevant and material. See 2 Black. Judgm. § 577, citing Stridde v. Saroni,
The pleadings in ejectment are broad and indefinite. They contain no recital of title. The plaintiffs’ chain of title shows that they claim under Witten, the plaintiff in the former action; and it is competent to show by parol that Silas Perdue claimed as tenant, and was in possession under George W. Perdue, at the time of Witten’s recovery against Silas, for in no other way'fthan by such parol helping evidence can the judgment be applied to its proper subject-matter, or what was decided be ascertained, and given its true legal effect, if any, between the parties to this suit.
'For the reason given, I am of opinion that the record in the action of ejectment of Witten v. Silas Perdue and the evidence of the witness Witten were improperly excluded, to the prejudice of the plaintiffs. Therefore the judgment complained of must be set aside, and a new trial be awarded.