13 Gratt. 468 | Va. | 1856
If it could he considered an open question whether a party claiming a perfect legal title under a grant from the commonwealth can maintain a caveat against one seeking to obtain a new grant for the same land, under the provisions of our act of assembly, I should have little difficulty in holding that the remedy is inappropriate to such a case, thinking as I do that the argument to show that it is a proceeding for the discussion of equitable rights merely and not intended to draw an equitable right into comparison with an alleged perfect legal title, has never been answered and is in truth conclusive. But under the influence of the cases of Preston v. Harvey, 3 Call 495; Tanner's adm’r v. Saddler, 2 Hen. & Munf. 370; and Hardman v. Boardman, 4 Leigh 377; in all of which the caveat was sustained on the basis of a complete legal title in the caveator, either actually shown or presumed in his favor, and of the settled and long continued practice during a period within which there have been two revisáis of our statute law without any change upon this subject, I must regard it as no longer a debatable matter and hold it as now fully settled that a party may well enforce a complete legal title by caveat against another seeking to obtain a new grant for the same land however inexpedient it may be in many cases in which he has the actual possession also to forego the advantage of his position as defendant and take that of an assailant in exercising his right so to do.
The act of 1819 provides that a caveat on the ground
These points being disposed of, we come to the questions upon the merits. And the first of these is as to the admissibility of the survey from the surveyor’s book of Augusta county bearing date on the 20th of November 1749, as evidence for the caveators. The caveatees in stating their case had said that they should insist upon the evidence, as it would appear, that no actual survey of the land described in the grant to Wood under whom the caveators claimed had
Next is the question as to the competency of the witness Kenny. And upon this there can be no doubt. He had purchased a portion of the land embraced by the grant to Wood of parties claiming under that grant and he claimed that the Wood survey should be located
But although Kenny was clearly a competent witness, I do not perceive on what just ground the court overruled the objection to his answer to the second interrogatory. It gave but the unsworn statements of Code that two certain corners designated were corners of the Wood survey. It is true Code was living on the same land at the time, and he had left the countiy many years before the trial and was at that time no doubt dead. Nor is it denied that upon questions of boundary in Virginia, not only general reputation, but also hearsay evidence as to particular facts may under certain circumstances be properly received as evidence. Thus the declarations of a deceased person as to a particular corner tree or boundary may be given in evidence provided such person had peculiar means of knowing the fact. Harriman v. Brown, 8 Leigh 697. In Kentucky the rule would seem to be different. For although evidence of reputation or common tradition will be admitted as to an ancient boundary, (Smith v. Norvells, 2 Litt. R. 159,) yet evidence of hearsay as to particular facts to prove such boundary will be excluded unless perhaps in cases where the name of a water course or some other object which commenced by parol be necessary to be estáb
In this case Cock the person whose statements were allowed to be proven, was neither surveyor nor chain carrier at the making of the original survey, nor was he the owner of the tract or of any adjoining tract calling for the same boundaries. He had never been engaged as a processioner of the land nor was his situation such in reference thereto as to render it his duty or interest to make diligent enquiry and obtain accurate information as to the facts. It is said he was living on the land at the time, but in what character is not stated. It is not said that he was there as tenant under the Wood title or as a claimant for himself under any title. For aught that is shown in regard to his occupation, it may have been that of a mere squatter. Certainly nothing is shown from which it is to be inferred that Code had that peculiar means of knowing the facts which would impress upon his unsworn statements the character of evidence in a subsequent controversy between others to whom he was entirely a stranger about the title to the land.
I think the Circuit court should have excluded the answer to the second interrogatory as it properly did those to the thirteenth, fifteenth and sixteenth interrogatories to the same witness.
I think the Circuit court erred also in permitting the grants to Frisbie and Jones to go to the jury as evidence upon the question of the identity of the Wood survey. In Overton's heirs vs. Davisson, 1 Graft. 211, it was held that in a controversy concerning boundary or locality of land granted by the commonwealth pursuant to a survey, another survey made by the same surveyor about the same time or recently thereafter, of a coterminous or neighboring tract, upon which also a grant had issued whether to a party to the controversy or to a stranger, is proper evidence upon the question of identity unless plainly irrelevant; and accordingly it was decided that the Circuit court had erred in rejecting the surveys for Thomas and Lewis which the demandants had offered in evidence. Those surveys were dated on the 28th and 29th days of April 1785, respectively. The date of the survey on which the grant to Overton was founded does not appear in the report of the case, but the grant was dated on the 23d of May 1786, and all three surveys were doubtless made nearly about the same time and by the same surveyor. In this case, the survey for Frisbie was made on the 31st of October 1795, nearly forty-six years after the Wood survey, and the survey for Jones was made on the 15th of March 1809 nearly sixty years after the
We come next to the instructions given by the court to the jury.
In telling the jury that if they should be satisfied particular corners of the B^ood survey had been established by the evidence the lines must be so run as to go to those corners notwithstanding it might involve a variation in both course and distance, the court certainly committed no error. It was only the familiar proposition that natural objects or other proven corners will control course and distance. But I do not perceive clearly what was intended by the addition made to this instruction “that in making said variation there ought to be a fair allowance made in each line and course, if necessary.” The idea would seem to be that if variations of course and distance were found necessary for the purpose indicated, there should be something in the nature of an average established
I think the Circuit court also erred in instructing the jury that if they were satisfied certain corners specified were established by the evidence as corners of the Wood survey and that the surveyor had laid down upon his plat the intermediate courses correctly, it was all that was necessary to be done, because it was in that (the western) portion of the Wood survey, the caveatees’ survey embracing the land they claimed title to was found to lie, and that it was not necessary for them to ascertain whether the courses of the intermediate lines on the other or eastern portion of the Wood survey were correctly designated or otherwise because the title and boundaries of that portion of the survey were not in controversy in that case. It was not sufficient that the jury should have been satisfied that the courses of the intermediate lines around the western part of the survey had been laid down correctly, because the true length of each of those lines was quite as important as the course, and this was to be determined not by making a fanciful allowance in order to preserve a general average of variation but by the patent call for distance unless the same were controlled by a call for some natural object or some artifi
I think therefore the court unduly restricted by its instruction, the enquiry which the jury had to make ; and that in answer to their enquiry they should have been told, that it was their duty to consider the evidence offered as to all of the corners and lines of the survey: that where a corner was established to their satisfaction, the lines appearing to radiate from such corner should be so drawm as to converge at the same, and course and distance should both be changed so far as necessary for that purpose; and where no corner was found the patent calls for course and distance must be their guide and must supply such lines as were not established by the proofs on the ground ;
I proceed to consider briefly the facts of the case as ascertained by the finding of the jury.
The caveators claimed under the grant to James Wood dated the 16th of August 1756. To connect themselves with this grant they introduced the will of Col. Wood, dated the 8th of September 1746 and admitted to probate in the County court of Frederick in February 1760, by which he devised all his estate real and personal to his wife Mrs. Mary Wood subject to certain pecuniary charges in favor of children: they then produced a deed from Mrs. Wood by which she conveyed (in 1791) parcel of this land by metes and bounds containing seventeen hundred and eighteen acres, to Robert Wood a sou of Col. James Wood, and also another deed of the same date by which she conveyed the residue of said land by metes and bounds supposed to contain one thousand and eighty-two acres to Mrs. Susannah Wood widow of Dr. John Wood another son of Col. Wood, for life and after her death, to Fanrose and Stanhope Wood two sons of Dr. Wood: Robert Wood in his lifetime sold and conveyed a portion of the land conveyed to him by his mother to one John Kenny, and after his death by deed dated the 16th of April 1833, his widow and heirs conveyed the residue to James Kyle under whose will the caveators claimed as devisees: Stanhope Wood by deed dated the 9th of August 1821, conveyed one moiety of the land conveyed to him and his brother Fanrose Wood by Mrs. Wood in 1791 to the same James Kyle, and Fanrose Wood by deed of the 16th of May 1823 re
The foregoing is in substance all the facts found by the jury and no other facts appear to have been agreed by the parties.
Now at the date of the will of James Wood and until the act of 1787, it is clear that after acquired lands would not pass by a devise in the most general terms of all of a testator’s lands, tenements and estate whatsoever of which he was or at the time of his decease might be possessed. Brunker v. Cook, 11 Mod. R. 121; S. C. on appeal, 1 Bro. P. C. 19; 1 Wms. Saund. 277, n. (e.); 3 Lorn. Dig. 19. And as the grant did not issue, nor was even the survey made until some years after the date of the will, and no interest shown in Wood of any kind either legal or equitable, at that date, the land did not and could not pass by the devise to Mrs. Wood, but upon the death of the testator descended to his oldest son as his heir at law, the Vii'ginia statute of descents not having been enacted till 1785. But although the caveators failed to connect themselves with the grant to Wood through his will, still such a succession might be shown to the right which descended to the heir at law as would be sufficient to maintain this proceeding. Or if the better right cannot be deduced by descent from the patentee, yet the possession of those claiming under the deeds from Mrs. Wood might have been under such circumstances as would itself invest the caveators with such a title or such an interest in the premises as would authorize them to interpose and prevent the
I think the finding of the jury is so defective that the court could not understanding^ and safely undertake upon the facts which are found to adjudicate upon the rights of the parties, and that therefore the appellants are not entitled to have final judgment pronounced here in their favor, but that the cause should be sent back to the Circuit court for a more full and perfect finding of the facts upon which the rights of the parties may essentially depend. See Cropper v. Carlton, 6 Munf. 277; McNeel v. Herold, 11 Graft. 309.
I am of opinion to reverse the judgment and remand the cause for a new trial.
The other judges concurred in the opinion of Lee, J.
The court, for reasons stated in a written opinion filed with the record, is of opinion that the said Circuit C0lu,j. ¿y no£ err jn permitting the copy of the survey dated the 20th of November 1749 mentioned in the first bill of exceptions to be read as evidence to the jury nor in admitting as evidence the deposition of William Kenny mentioned in the second bill of exceptions, the court being of opinion that the said William Kenny was not shown to be incompetent as a witness in this cause. But the court is of opinion that the Circuit court did err in permitting the answer to the second interrogatory to the said Kenny upon his examination in chief to be read as evidence this court being of opinion that the statements and declarations of John Cock which were given in that answer were not evidence against the caveatees, and that the same should have been excluded from the jury as well as the answers to the thirteenth, fifteenth and sixteenth interrogatories which were properly excluded by the court. And the court is of opinion that the objection to the said second interrogatory and the answer thereto should have been sustained.
And the court is further of opinion that the Circuit court erred in permitting the patents to Frisbie and Jones mentioned in the third bill of exceptions to be read as evidence to the jury, this court being of opinion that the said grants were not evidence against the said caveatees upon the question of the identity of the Wood survey or any other matter in issue between the parties in this cause.
And the court is further of opinion that in so much of the instructions given by the court to the jury mentioned in the fourth bill of exceptions as informed them that if they should be satisfied that particular corners of the Wood survey were established by the testimony, the lines must be run so as to go to said corners al
And the court is further of opinion that the finding of the facts by the jury sworn in the cause was imperfect and insufficient and that the court could not understandingly and safely undertake to pronounce final judgment thereupon between the parties; that the same does not ascertain who was the oldest son and heir at law of the said James Wood or whether there was any succession on the part of those under whom the caveators claimed title to the rights of such heir at law, and if any what was the character of such succession and to whom it applied; nor does it find that there was any family arrangement between said
The court is therefore of opinion that final judgment ought not now to be pronounced upon the finding aforesaid, but that the same ought to be set aside and a new trial had upon the principles herein before declared.
Therefore reversed &c. and cause remanded for a new trial upon which if the same questions shall arise as those upon which the opinion of this court has been herein before expressed, the rulings and opinions of the Circuit court shall conform to the views and principles above declared. Which is ordered &c.