123 Va. 448 | Va. | 1918
delivered the opinion of the court.
P. H. Ritter filed his bill against Henrietta Cumbee, Luther Cumbee and Gilbert Cumbee, alleging that he was the owner in fee simple of a tract of land containing 318-acres, more or less, the title to which he acquired by deed which he filed as an exhibit with the billthat he and Ms predecessors in title had been in the possession thereof for more than twenty years, except a small parcel of about one acre, which had been enclosed and occupied by Henrietta Cumbee for many years, the title to which parcel had been awarded to her in an action of ejectment which he (Ritter) had brought against her; that the defendant, Henrietta Cumbee, and her sons, the other two defendants, acting as her agents, had trespassed upon his land and cut down valuable timber trees which they were preparing to haul off the
The defendant, Henrietta-Cumbee, filed her separate demurrer and answer to the bill. The answer denied every allegation in the bill, except the cutting down of the trees, which she says were few in number, were intended to be cut into lumber for the purpose of repairing buildings now on the land or to build new ones thereon, and that the cutting of these few trees resulted in no appreciable injury to the property and are not worth more than $10.00. She further alleged that she is the owner of eighty acres of land upon which such timber grew, describing sa-id land by metes and bounds, and that she has been in the actual, open, notorious, visible, exclusive, hostile and undisputed possession thereof for a period of thirty years, during which time she has claimed the land, honestly believing it to be hers, and that though she has been much harassed by suits and actions in regard to it, she has successfully repulsed every effort to wrest the possession thereof from her. She also alleges and proves that Neel, from whom the complainant bought his land, instituted an action of ejectment in the Circuit Court of Giles county against the defendants for this eighty acres of land, and that after some of the evidence had been introduced.for the plaintiff and before any evidence had been introduced by the defendants, the plaintiff asked permission to suffer a nonsuit, to which the defendant made no objection, and that action was thus ended; that after the complainant acquired title he brought another action of eject
Neither party referred to or relied upon the amendment to section 3058 of the Code, Acts 1912, page 77.
The demurrer to the bill was properly overruled. Inasmuch as the bill shows a prima facie title in the complainant, the destruction, of timber of special value and reasonably necessary for farm uses, and alleges the insolvency of the defendants, it is not demurrable. The general rule is that in the absence of some peculiar equity arising out of the conduct, situation or relation of the parties, courts of equity are without jurisdiction to settle disputes as to title and boundaries of land. Ann. Cas. 1915 A, note, p. 354. In this State, in the following cases it was determined that the chancery court had no jurisdiction to settle the controversy: Stuart’s Heirs v. Coalter, 4 Rand (25 Va.) 74, 15 Am. Dec. 731; Lange v. Jones, 5 Leigh (32 Va.) 192; Carrington v. Otis, 4 Gratt. (45 Va.) 235; Steed v. Baker, 13 Gratt. (54 Va.) 380; Manchester Cotton Mills v. Manchester, 25 Gratt. (66. Va.) 825; Collins v. Sutton, 94 Va. 128, 26 S. E. 415; Sulphur Mines Co. v. Boswell, 94 Va. 480, 485, 27 S. E. 24; Callaway v. Webster, 98 Va. 790, 37 S. E. 276; Deane v. Turner, 113 Va. 237, 74 S. E. 165; Litz v. Rowe, 117 Va. 752, 86 S. E. 155, L. R. A. 1916 B, 799.
On the other hand, this court has in several recent cases decided that such peculiar equity existed as gave the chancery court jurisdiction, and the entire controversy has been settled in such suits.
In Miller v. Wills, 95 Va. 337, 28 S. E. 337, Riely, J., says:
“It has accordingly been held, upon the ground of the inadequacy of the remedy at law, that an injunction will lie in the case of a trespass, where the trespasser is pecuniarily irresponsible. 1 High on Injunctions, sec. 356; Musselman v. Marquis, 1 Bush. (Ky.) 463, 89 Am. Dec. 637; Spear v. Cutter, 5 Barb. (N. Y.) 486; Malry v. Norton, 100 N. Y. 424, 3 N. E. 581, 53 Am. Rep. 206; Webb v. Harper, 38 Ga. 641; Hicks v. Compton, 18 Cal. 206, and Morgan v. Palmer, 48 N. H. 338. While mere insolvency would not generally be decisive of the right to grant an injunction, it constitutes in particular cases a.n important element in determining whether the court in the exercise of a sound discretion should award it, for, the trespasser being insolvent, the legal remedy, ‘though theoretically perfect, would be practically fruitless.’ ”
In Miller v. Wills, supra, the alleged trespassers were nonresidents of Virginia.
This doctrine has been approved and enforced in Morison v. American Association, Inc., 110 Va. 93, 65 S. E. 469; Moorman v. Lynchburg, 113 Va. 90, 73 S. E. 987; Woolfolk
The evidence in this case shows that the controversy has been one of long standing, and that each of the parties has been exercising certain acts of ownership under claim of title and possession of the land in controversy, inconsistent with, and in hostility to, the claims asserted by the other. Within the year previous to the institution of this suit the complainant had sworn out a erminal warrant against Henrietta Cumbee, charging her with trespass on the land, which had been dismissed. The defendants in their answer only claimed the title by adverse possession. It is true that there is an allusion to a claim by defendants under deed in the complainant’s evidence, but the defendants did not claim under it, produce it, or indicate its contents. It appears that Henrietta Cumbee has lived for many years in a house which is upon the one acre of the land, which is enclosed, and which she has recovered in ejectment; and that she has . claimed and pastured her cattle and hogs upon the land here in controversy for several years and exercised other acts of ownership thereon. She relies upon the doctrine that a court of equity has no jurisdiction to enjoin a mere trespass or to settle a mere question of title to land.
On the other hand, the evidence of the complainant shows
Upon this evidence the court entered a decree perpetually enjoining and restraining the defendants from cutting and removing any timber from the tract of land described in the bill, and from otherwise trespassing thereon. From that decree the defendant, Henrietta Cumbee, appealed. So that the question is whether a, court of equity should take jurisdiction of such a controversy.
While the principles governing this class of cases have been many times- announced, and may be regarded as settled in Virginia, it is nevertheless difficult to apply them to the facts of this particular controversy.
In view, however, of the fact that the defendants relied solely upon their claim of title by adverse possession and failed to establish prima facie case (for their own evidence fails to show that they have had exclusive and hostile possession of the land here in- controversy) should the court have dismissed the bill as presenting a, mere controversy as to the title to the land, which could only be properly settled in an action of ejectment; or is this a case in which the chancery court properly took jurisdiction and granted the relief to which, upon the evidence submitted, the complainant is entitled ?
The. defendants only introduced two witnesses, and it is impossible to construe their testimony as making out ai prima facie case in favor of the title by adverse possession set up in the answer. They not only failed to sustain the claim that the defendant, Henrietta Cumbee, “has been in the actual, open,- notorious, visible, exclusive, hostile, undis
In a, case like this, where both parties claim title and possession and both are exercising acts of ownership, and one fails to establish even a prima'facie case, we are of opinion that in the interest of peace, law and order the equity court should take jurisdiction; and that in this case the trial court properly.determined the question raised against the defendant’s contention, which rests upon a claim of title, which is entirely unsustained, if not negatived, by the evidence introduced to support it. In view, however, of the fact that the record suggests the possibility that the defendants were overconfident in their view that the court of equity had no jurisdiction, and, therefore, failed fully to present the evidence upon which they relied in support of their claim of title, we are not disposed to close the door of opportunity to them. The decree will, therefore, be affirmed, without prejudice to the right of the defendants hereafter to assert their title to the property in a.n action of ejectment, if they shall be so advised.
Amended, and affirmed.