3 W. Va. 37 | W. Va. | 1868
Lead Opinion
Two questions arise in this cause.
1st. "Was the verdict of November 6th, 1863, sufficient to authorize the court to render a judgment on ?
The declaration is very loosely and informally drawn, but was not demurred to. In it the plaintiffs substantially complain of the defendant, for that they were possessed of five acres of land in fee simple, in Yohogania county, viz — in' Hancock — by virtue of a patent from the commonwealth.
Thereupon the defendant moved the court in arrest of judgment, because, as he alleged, the verdict was not in conformity with the 27th section of chapter 135 of Code 1860, in that it did not specify the estate found in the plaintiffs. And upon consideration of said motion the court was of opinion no judgment ought to be rendered on said verdict aud set it aside for that cause and awarded a venire de novo. An additional objection is taken here, viz: that the plaintiffs in -their declaration only claim five acres, while the report of the surveyor Atkinson, which accompanies the plat referred to in the verdict, shows the verdict includes nine acres. To this objection there are two answers. 1st. The report is no part of the verdict, only the lines S. P., A. G. and G. S., as shown on the plat. 2d. The report and plat, if looked to, show that the plaintiffs and defendant claimed under different grants having a common line, and the only question in dispute.was whether that line was as claimed by the one or other of them, and the jury found it as claimed by the plaintiffs, and whether, therefore, the quantity as supposed in 'the declaration be five or nine acres it was wholly immaterial, as the bounds and line claimed in the declaration correspond with the bounds and line found by the jury.
The land and line claimed being the same as the land and
2d. The verdict “further finds for the plaintiffs so much of the land in the declaration mentioned as is included in the lines S. P., A. G-. S., as delineated on the plat, &c.” Here the declaration claims title in fee simple in the land described. The verdict finds for the plaintiffs the land in the declaration mentioned.
In the case of McMurray vs. O’Neal, 1 Call, 246, it was held that a verdict in ejectment in these words: “¥e find for the plaintiff one cent damage,” was properly amended by the court and made to read: “We find lor the plaintiff the lands in the declaration mentioned and one cent damage.” If it were competent in that case to refer the finding to the land in the declaration mentioned, why not in this to the estate in-the declaration mentioned. If it were competent in that case to interpolate the land and description why not in this case the fee simple in the land in the declaration
A finding and judgment for the plaintiffs of the land in controversy must be construed to mean either an estate in fee or a less estate, as by the Code 1860, chapter 116, section 8, lands conveyed or devised without words of limitation shall be construed to be in foe simple unless the contrary intention shall appear; while at common law it would ottly have been an estate for life; analogy would seem to require a like construction of the language of this ver-diet under chapter 135 of the Code. But taking that construction which would be most strongly against the plaintiffs, and hold the verdict to mean only the least estate, that a plaintiff can have in land and recover upon it, still the verdict is good, and only the plaintiffs could complain of it. Since the plaintiffs were entitled under the statute to have had this estate in the land definitely and specially found so as to leave no reason for doubt or construction upon any future controversy as to what was found, and thereby concluded forever; and the court should, instead of setting aside the verdict, have sent the jury back with instructions to conform their verdict in that narticular
According to the case of Tapscott vs. Cobb, 11 Grat., 172, a party in peaceable possession, when entered upon and ousted by one not having title to or authority to enter on the land, may recover the premises in ejectmenton his possession merely, and his right to recover cannot be resisted by showing that there is or may be an outstanding title in another, but only by showing that the defendant himself has title or authority to enter under the title; and in such a case the utmost that the verdict could find would not import a greater or more .definite and certain estate in the plaintiffs than the present verdict does. I think, therefore, that the court erred in failing to enter judgment on the said verdict for the plaintiff.
Another question raised in the cause is the admissibility of the copy of the deed from Benjamin'Johnson and wife to Ezekiel Hopkins, certified from the .recorder’s office of Ohio county, for the laud in question under which the plaintiffs claim, and which was excluded from the jury by the court on the second trial, and a verdict was found for the defendant.
This deed, dated August 20th, 1791, was acknowledged by the parties as their acts and deed before the circuit court of Jefferson county, in Kentucky, September 7.th, 1791, and on motion of said Hopkins, ordered to be certified, which acknowledgement, privy examination and order, are attested by the clerk in the following manner:
Teste:
Will JoirnsoN, C. J. C.
This deed so acknowledged, proved and certified was presented in the county court of Ohio county at February term, 1792, and by that court was ordered to be recorded, which was done accordingly as appears by the certificates of.Mos.es Chapline, clerk, and of K. B. Woods, recorder, respectively.
It is objected in the first place that the attestation and signature of the clerk of Jefferson county is not sufficient to show he acted in his official character in attesting and
The next objection, and the one most earnestly relied on by the defendant, is that when the deed in question was acknowledged or ordered to be certified in the court of Jefferson county, Kentucky, in 1791, there was no law in .Virginia admitting it to be recorded ou such proof, because the statute of 1785 applied only to such acknowledgment or proof before a court of another State, and not before a court in the State of Virginia, unless it were the court of the county where the land lay.
In the case of Hassler and King the deed had been acknowledged in New York before the act of 1785 took effect;- and when that act did take effect, and during the time it was in force, the deed wás never presented nor admitted to record within the county where the land lay.
Subsequently the act of 1828 was passed, and in 1838 the deed was presented and admitted to record in the county where the land lay upon the original certificate of the Mayor of New York of its acknowledgment prior to October, 1785. The certificate of acknowledgment before the Mayor of New York, if made in 1833, would have been embraced by the provisions of the statute. And the court of appeals of Virginia held the deed well proved and recorded and admissible as evidence; and I see no reason why the same principle will not sustain- the present deed, which was acknowledged before the court of Jefferson county, Kentucky, and admitted to record in Ohio county, where the land .then lay. Whether there was any law authorizing the court of Jefferson county, Kentucky, to take such acknowledgment and proof of said deed on the 7th day of September, 1791, or not, it is not now necessary to inquire. For-if there was not, yet when the deed was admitted, to record
It is said that at the date of the acknowledgment of this deed in question Kentucky was a part of the State of Virginia, and therefore the act of 1785 which authorized the acknowledgment before a court of another State did not embrace.the case, Kentucky not being admitted as a State into the Union until June 1st, 1792. Without determining when Kentucky became a State, it may be said certainly that -about the time of the acknowledgment and proof of the deed in question, that she was in a sort of chrysalis state, because the act of Virginia of December 18th, 1789, authorized the people of Kentucky to elect delegates to a convention to determine whether .they would form a State provided Congress should consent to it. The convention was elected, assembled and approved the formation of the State of Kentucky prior to the date of the acknowledgment of the deed in question, and Congress gave its consent thereto by the act of February 4th, 1791, also before the said acknowledgment, and under the provisions of which the said State was afterwards admitted into the Union by act of June 1st, 1792. Besides it ought to require a strong ease and strong reasons to justify a court of justice in setting aside a deed proved and recorded with the forms of law in the courts of. the State, and remaining unquestioned for more than half a century wdiile rights and titles have grown up under it to an extent not easily to foresee.
For the foregoing reasons I think the judgment of the circuit court should be reversed, and all the proceeding subsequent to the verdict of November 6th, 1863, set aside and annulled, and judgment entered in this court on said verdict of November 6th, 1863, for the plaintiffs, with costs to the plaintiffs in both courts.
Concurrence Opinion
concurred to reverse the final judgment, because judgment should have been entered on the first verdict, but did not concur as to the admissibility of the excluded deed.
Judgment reversed.