84 W. Va. 94 | W. Va. | 1919
This action of -unlawful entry and detainer' was brought to recover possession of about one hundred acres of land, and was tried in 1914 resulting in a judgment for defendant. On writ of error to this court, the judgment was reversed and a new trial granted because the court had erroneously directed a verdict for the defendant. 77 W. Va, 22. It was again tried and a verdict found in favor of defendant on which the court rendered judgment, and plaintiff is now prosecuting this writ of error to that judgment.
A brief statement of the facts on which the parties rely in support of their respective claims to the right of possession is essential to a correct understanding of the law and an intelligent consideration of the alleged errors. Plaintiff does not derive his title from this State or the State of Virginia. His mere claim of title originates with one S. W. Farley, who is not shown to have had either actual possession of, or colorable claim to the land. Farley and wife conveyed it by deed, giving metes and bounds, to J. A. Campbell, May 31, 1899, stating the quantity to be about one hundred and fifty acres, at the same time reserving thirty acres within-the boundary, which is also described by metes and bopnds. J. A. Campbell and wife then, by two deeds dated, respectively, 24th Jane, 1909, and 25th January, 1911, conveyed it to plaintiff, by each of said deeds conveying an undivided half. These deeds describe the land by the same metes and bounds, and make a similar reservation of the thirty acres, the first by reference to the Farley deed for description, and the second by boundaries, ivhich exclude said thirty acres.
Defendant claims the disputed land is a part of a tract of four hundred and eighty-four acres conveyed to him by the heirs of Andrew Moore, deceased, October 5, 1866, and is within the bounds of a large survey of 170,038 acres granted by the Commonwealth of Virginia to Andrew Moore and John Beckley, 20th January, 1795. This large survey was partitioned about 1830 among the executors of John ►Stuart, deceased, the heirs of Andrew Moore and the heirs of John Beckley, both deceased, in a suit originally brought, about 1804, for that purpose by' John Stuart who had an
The boundaries now in dispute, as called for in Meadows* deed from the Moore heirs, are as follows: “Beginning at 2 chestnuts on a point, and on the North side of Mitchell’s Ridge, corner to Joseph Lilly and with his lines N. 80 W. 302 poles to a ch. o. and a cucumber in the head of a hollow, on South side of a ridge, and in a line of the Moore and Beckley tract, and with same N. 10 E, 220 poles to 2 small white oaks and a locust on the point of a ridge.” Although the trees called for at the ends of the 302 pole line as corner trees may not be located in the Moore and Beckley patent line, nevertheless defendant claims the right to have his boundary extended in order to reach said line. The Moore and Beckley line is described in the patent as running from “two white oaks near a large glade, one marked with R. I., the other M., and also several other trees blazed; thence S. ten degrees W 3,380 poles, crossing a number of streams and ridges to a white oak and chestnut oak, also a number of other blazed trees standing on a high ridge on the headwaters of Guyandotte.-” There is evidence tending to prove that the true location of the line is 700 or 800 feet beyond the marked corners at the ends of his 220 pole line, and the jury must hare so found, under the instructions of the court. The northern portion of the rectangular piece of land included between defendant’s'220 pole line, the Moore and Beckley line and his side lines extended to it, is the land in dispute. The fact being shown that the corners marked on the ground and described as being in the Moore and Beckley line when they are not, discloses a latent ambiguity in the description calling for a construction of the deed. Construction is for the purpose of arriving at the real intent of the parties, and in order to determine such intent, the subject matter, the situation of the parties and the surrounding circumstances at the time the deed was made should be considered, if they are made to appear. The parties agree on the location of the northern end of this long Moore and Beckley line, but the evidence is very conflicting respecting
There was some effort by plaintiff to prove actual, continuous possession for ten years of the land conveyed to him by Campbell. But the possession proved was, admittedly, witMn the tlurty acres reserved by Farley. Neither party had actual possession of the controverted land prior to the bringing of this action. Plaintiff sought to obtain possession by building a house on it, and was forcibly evicted by ■■defendant. The land not being embraced in defendant’s •deed from the Moores, plaintiff’s entry upon it was not a •trespass upon his possession, it was not an invasion of his ¿right and he had no right to eject plaintiff. Possession obtained by force, even by the rightful owner, from one in ae-
It was not error to permit surveyor AYilson to express his opinion as to whether the southwestern comer of the Moore and Beckley survey found by him was the true corner of that survey, it being shown that he was an experienced surveyor and had surveyed many of the lines of the Moore and Beckley patent and observed the manner of the original marking of the lines and corners.' Colliery Co. v. Campbell, supra.
The case was tried on the erroneous theory that the true location of the Moore and Beckley line, as determined by the .jury from the' evidence, prevailed over the marked comer trees called for in defendant’s deed and fixed his western boundary line, and it consequently follows that some of the instructions given are erroneous, and that others, although 'expounding correct principles, are inapt. It is needless to review them as this opinion determines the principles which must govern a retrial of the case, and the errors complained •of will be avoided. .
For the foregoing reasons, the judgment will be reversed and the case remanded for a new trial.
Reversed and remanded.