73 W. Va. 431 | W. Va. | 1914
To a judgment in favor of defendants in an action of unlawful detainer, plaintiff obtained this writ of error. The action is to recover possession of a small triangular lot of' bottom land lying on Elk River, south of the mouth of a creek called Waters Defeat. Plaintiff claims the right to
Plaintiff makes fourteen assignments of error. His first relates to the exclusion of three deeds, attested copies of which were offered as evidence, viz.: (1) Deed from James M. Corley, deputy sheriff, to John B. Williams, dated November 26, 1848; (2) deed from John B. Williams to Benjamin Butler, dated August 14, 1854; and (3) deed from Benjamin Butler to Jeremiah Butler, dated November 1, 1859. The Corley deed was admitted to record in Braxton county upon Corley’s acknowledgment taken by the clerk of the county court who used the initial letters Í£C. B. C.” after his signature to designate his official character. The certificate is headed as follows: “Braxton County Court Clerk’s Office, December 4th 1848.” Counsel for defendants insist that the attested copy was properly rejected for the following reasons: (a) because 'the deputy sheriff was not authorized to execute the deed in his own name, and that it is therefore void; (b) because the cértificate of acknowledgment does not show the state in which
But it appears that the boundaries of the land, as given in the deed, do not include the small lot in controversy. The line which plaintiff contends includes the lot is therein described as running from a hickory and two dogwoods, thence “S. 60 W. 225 poles to the river, at the mouth of Waters Defeat.” No other object is called for as marking the corner; and a line from the hickory to the mouth of Waters Defeat does not include the lot, which lies wholly south of Waters Defeat. It was, therefore, not error to exclude the deed.
The metes and bounds of the 172 acres are also given in
This day John B. Williams, appeared before me in in the aforesaid County and acknowledged the above deed, to be' his act and deed, and desired me to certify the- said acknowledgment to the clerk of Braxton County, so the said deed may duly recorded.
Given under my hand this 6th day of March, 1855.
M. TRIPLETT, J. P.”
The form of acknowledgment prescribed by the statute of Virginia, in 1855, was not materially different from the form required by our statute at the present' time. The- form then prescribed, (Sec. 3, Ch. 121 Code Va. 1849), contained the words, “whose name is signed to the writing above.” Those words, or words of similar import,-are essential for the purpose of identifying the person making the acknowledgment
The Butler deed, the last of the three excluded, does not describe the land by metes and bounds, but does ’ describe it in the following manner, viz.: “All of a certain tract of land lying in the County of Clay on the south side of Elk River, it being the same land conveyed to Benjamin Butler by John Williams and the same which the said Williams purchased under the decree of Stephen Burrows against the West Virginia Iron, Mining Company, and recorded in clerk’s office, Braxton County Court, containing 172 acres.” This question confronts us: Can the John Williams deed, which is not properly acknowledged and therefore not recordable although found upon the records of the clerk’s office of Braxton county court, be read as evidence to supplement the description of the land given in the Butler deed which expressly refers to the former as being “recorded in Clerk’s Office, Braxton County Court”? It is well settled law, that a deed referring to another deed, paper or map, for description of the land intended to be conveyed, thereby incorporates and makes a part of the deed itself, the paper so referred to. Blowpipe Co. v. Spencer, 46 W. Va. 590; Thorn v. Phares, 35 W. Va. 771; Smith v. Owens, 63 W. Va. 60; and Holly v. Curry, 58 W. Va. 70. Counsel for defendants do not controvert this general proposition, but they insist that it applies only to deeds which convey title, and does not apply to deeds serving only as color
The record book of Braxton county- was not produced, but counsel agreed at the trial that the attested copy of the deed should have the same effect as the writing on the book, if the book had been produced. This agreement had the effect to admit the copy for the purpose which we have mentioned.
The Butler deed was also objected to on account of alleged defects in the certificate of acknowledgment, which was made by the deputy clerk of Braxton county, upon which the deed was admitted to record in Clay county. The acknowledgment is as follows, viz.:
“Braxton County Court Clerk’s Office, November 1st, 1859.
This deed from Benjamin Butler to Jeremiah Butler, was this day presented in said office, acknowledged by the said Benjamin Butler to be his act and deed.
Teste: W. P. Byrne, Deputy Clerk.”
Counsel for defendants insist that the acknowledgment is defective for the following reasons: (a) a deputy clerk had no power to take acknowledgments; and (b) because of the omission from the certificate of the words, “whose name is signed to the writing above,” etc. These objections are not sound. At the time the acknowledgment was taken the statute of Virginia, (Code 1849, Ch. 121, See. 3), expressly authorized a county court, or the clerk thereof, to admit a writing to record as to any person whose name was signed thereto, upon the certificate of his acknowledgment, made by the clerk of any other county or corporation court in the state of Virginia, “that the said writing was acknowledged by such person, or proved as to him by two witnesses before such clerk, or before the court of which he is clerk.” The certificate is
Pendleton v. Smith, 1 W. Va. 16, does not apply to the case at bar. The act of the deputy, there held to be invalid, was the attestation of a writ of attachment. Sec. 9, Art. V of the Virginia Constitution, then in force, required that “writs shall run in the name of the Commonwealth of Virginia, and bear teste by the clerk of .the several courts.” This is the ground for holding the writ, attested in that case by the deputy clerk, invalid. But see the dissenting opinion of Judge Brown in that case.
Neither does the decision in Webb v. Ritter, 60 W. Va. 193, control this ease. The acknowledgment was held invalid in that case, not because the deputy who certified it did not sign the name of his principal, but because it was his principal’s acknowledgment. The clerk had signed the deed; and the policy of the law forbade the deputy to take his principal’s acknowledgment, on the same ground that the clerk is forbidden to certify his own acknowledgment. What the deputy does, he does for his principal, whether done in his own name or the name of his principal. The certificate of acknowledgment to the Benjamin Butler deed was good in law, and the
The court permitted subsequent deeds under which plaintiff claimed to be read to the jury, but denied to them any force as evidence of color of title because they contained no boundaries and identified the tract of land by location only in a general way and by reference to former deeds which the court had excluded altogether. This action of the court constitutes plaintiff’s second assignment of error. No objection was made to any of these admitted deeds on the ground of defective acknowledgments. It was not necessary that every deed in plaintiff’s chain should contain metes and bounds in order to entitle it to be read as evidence of color of title. Having produced one deed defining boundaries, under which plaintiff proved actual possession of a part of the land for ten years or more, all that was necessary thereafter was to connect up with it by deeds identifying the land as the same. All subsequent deeds do so identify it. The Oliver Butler deed describes it as 172 acres on the south side of Elk River, and also by reference to the Butler deed which we have held should have been admitted; the Cadle deed identifies the tract in almost the same language; the Belcher deed to Duffield identifies it by locating it on the south side of Elk River, by giving the quantity as 172 acres and by reference to the Cadle deed. While Duffield owned it, it was sold under decrees of court in a chancery suit brought against him by William Belcher, and was purchased by plaintiff and conveyed to him by a commissioner of court. The land is identified in the bill and proceedings, and by the commissioner’s deed, by quantity, by general location, and by reference to the Cadle deed to Belcher. This was sufficient identification. All the deeds following the Benjamin Butler deed, as well as it, should have been admitted as color of title. The court’s instruction to the jury, limiting the purpose for which the deeds were admitted to the ascertainment of the one question, whether the defendants entered upon the land as plaintiff’s tenants, was prejudicial to plaintiff’s case. The court in effect, told the jury that plaintiff had no color of title.
The third assignment of error relates to the court’s refusal
No. 7 was properly refused, because it does not submit to the jury the controverted fact, whether Reed went into possession under the lease from the association. It assumes, as a matter of law, that he took possession under permission of plaintiff. He had a right to take a lease from any one whom he believed to be the owner, and the right to take possession thereunder. Possession was not taken until after he. had procured a lease from the Elk River Coal & Lumber Association, and it was for the jury to say whose tenant he was.
The fourth error assigned relates to the giving of thirteen instructions for defendants. It is unnecessary to discuss them sereatim, as the error in giving most of them was superin-duced by the error in refusing to admit plaintiff’s deeds as evidence of color of title. The case then went to the jury as if plaintiff had shown no color, but only claim of title. Inasmuch as plaintiff did not pretend to have title to the small lot
The fifth, eleventh and twelfth assignments of error relate to the refusal of the court to admit, as evidence, certain conversations between Andrew Brockerhoff and James G. Duffield, and between said Brockerhoff and Elery Dickey. Andrew Brockerhoff was, at that time, one of the joint owners of a large boundary of land which, apparently, included all of the 172 acres claimed by plaintiff; and the excluded testimony tended to prove a conversation -between Duffield and said Brockerhoff, wherein the latter admitted that he, 'and those jointly interested with him, did not claim the land then occupied by Duffield, which is the same now claimed by plaintiff. But Duffield, being then the owner as well as the occupier of the land, and Brockerhoff having since died, was an incompetent witness by virtue of See. 23, Oh. 130, Code. He was a person through whom plaintiff derives title. But Dickey was competent and his testimony was relevant and should have been admitted. It tended to prove that Brockerhoff knew that Duffield was in possession of the land, claiming it as his own, and that Brockerhoff recognized his claim, at least to the land actually occupied.
The sixth assignment is the refusal of the court to permit surveyor P. H. Butler to answer certain questions respecting the running of certain lines. If this was error it was cured by the testimony of Butler, subsequently admitted,- concerning the same matter.
The thirteenth assignment charges error in allowing defendants to dispute plaintiff’s title, on the ground that he was their landlord. This was not error. The relation' of landlord and tenant was a controverted fact for jury determination.
The fourteenth, and last, assignment of error is the refusal of the court to set aside the verdict. It follows from what we have already said that this assignment is well taken.
"We reverse the judgment, set aside the verdict and remand the case for a new trial.
Reversed and Remanded.