34 W. Va. 597 | W. Va. | 1891
This is a writ of error sued out by Melvin Spurlock to a judgment of tlie Circuit Court of Cabell county, rendered 23d February, 1888, in an action of ejectment brought by Alice Ketehum and others against Spurlock.
Let us then, first, see whether the plaintiffs showed a ease justifying their recovery prima fade. The plaintiffs showed no derivation of title from the State, but gave in evidence a deed dated August 11, 1866, from Richard Adkins to Samuel Adkins, conveying the tract of fifty acres of land in controversy, and proved that at the date of said deed, in 1866, “said Samuel Adkins took possession of the land mentioned and described in said deed, and set out in the declaration, under and by virtue of said deed, and held the same by occupation, cultivation and inclosure continuously from that date till his death, which occurred in 1880 ; that since the latter date the widow and heirs at law of the said Samuel Adkins, deceased, held the said land continuously by occupation, cultivation and inclosure till some time in 1884, when the said defendant took actual possession of about twenty five acres of the said land, and has ever since held and occupied the same; that the said Samuel Adkins caused the said land to be entered on the land-book of said county, and charged with taxes, and paid all taxes so charged thereon till his death; that since his death the said land was continued upon said land-books in the name of Samuel Adkins’ heirs, the plaintiffs, since the death of Samuel Adkins, and paid the taxes charged thereon, and he in his lifetime paid the taxes to the time of his death.”
Thus the plaintiffs relied, not on title derived from an original source, but on title arising from adversary possession under the statute of limitations under the color and claim of title created by said deed from Richard Adkins to Samuel Adkins. That adversary possession-for the period fixed by the statute operates to create or transfer to the party in possession a title which will enable him either to defend his possession or recover possession against a title
But the counsel for appellant contend that the facts proven as certified by the bill of exceptions from which I have above quoted, do not make out a case of adversary possession, because from them it does not appear that such possession was adverse or exclusive. I think the -adverse character of the possession in a legal sense clearly appears. There is the deed from Richard Adkins to Samuel Adkins purporting to convey the legal title, and possession under it, and this imports a claim against the world, and, taken alone, makes it hostile against even Richard Adkins, the grantor; for while the possession of a vendee under an executory contract contemplating a future conveyance is , not hostile or adverse to the vendor, yet, where the purchaser is in possession under a deed purporting to convey the land he is holding adversely to the world, including the vendor from whom his title and possession are derived. Core v. Faupel, 24 W. Va. 239; Nowlin v. Reynolds, 25 Gratt. 137; opinion in Clarke v. McClure, 10 Gratt. 305. How could the adverse character of the possession be proven? Not by a witness stating that the holding was adverse. That would be stating matter of opinion óf the law. The facts being given, the law determines whether the possession is or is not adverse. When once we know that possession is held by a person under a claim of title in himself, and the possession is of the kind required by law, and there is nothing shown to deprive it of its hostile character, it is hostile and adverse, and, where the party is claiming under an instrument purporting to pass the legal title, itis adverse even to the grantor. Thus, so far as regards the character of possession, that is, whether it was adverse or not, it would be adverse against defendant, even if he derived title from Richard Adkins.
Next, was such possession exclusive? Why is it not exclusive ? Here is a sole grantee in possession under his deed, in actual possession “by occupation, cultivation and inclosure,” holding against the world in a legal point of
The next question is, do the plaintiffs connect themselves with Samuel Adkins’s right and possession by showing that they are his heirs ; for they sue as such ? This depends largely upon the grammatical construction and punctuation of one of the clauses which I have quoted above from the certificate of facts. After stating that Samuel Adkins was charged with and paid taxes during his life, the clause in question states “that since his death the said land was continued upon said land-books in the name of Samuel Adkins’s heirs, the plaintiffs, since the death of Samuel Adkins and paid the taxes charged thereon, and he in his lifetime paid the taxes to the time of his death.” The appellant’s counsel would place a semi-colon after the word “heirs,” and make the word “plaintiffs” the nominative to the verb “paid,” which would punctuate the plaintiff’s out of this Court, for there would then be nothing to show that the plaintiffs are heirs of Adkins; while the other side.would make the noun .“plaintiffs” in the objective case, as a noun in apposition to the noun “heirs,” and thus make the language assert that the plaintiffs are such
But really, as to this point, there is no inaccuracy of grammar or punctuation; for, as the printed record is before us, the word “ plaintiffs,” with its article, follows immediately the word “heirs,” and the words “the plaintiffs ” are properly set off with commas, as they should be in this instance, in a ease of apposition; so that the word “ plaintiffs ” limits the ¿meaning of the word “ heirs,” and denotes that they are the same persons as the heirs, according to the grammatical sense of a noun in apposition; and thus the location of the words, the punctuation and the plain meaning derived from the whole context concur in indicating that the word “ plaintiffs ” is not nominative to the word “ paid,” but in apposition to the word “heirs,” and declares that the plaintiffs are heirs, though we have to supply a word in order to give the verb “paid” a nominative. The presence of the word “and” would be against making the word “plaintiffs” such nominative ; but if after it we supply the pronoun “they,” as nominative to “paid,” we but subserve and execute the manifest intention. This avoids the objection of punctuating away the verdict of the jury, against the plain intention. So we hold that the first proposition of the appellant, namely, that plaintiffs failed to make out a frima facie case, is not sustainable.
Nowr, as to the proposition that the defendant showed a better title. The defendant gave in evidence the record of a chancery suit brought in the Circuit Court of Lincoln county, at latest as early as the year 1870, by John Alford against Richard and Samuel Adkins and others, to sell lands of said Richard and Samuel Adkins to pay a debt
The case of Creigh v. Henson, 10 Graft. 231, is relied on for appellant. I do not see its force in this case. It holds that as against the trustee in a deed of trust, and the person to whom he sells, the grantor in possession is a tenant at sufferance, and not an adversary
The case of Lynch v. Andrews, 25 W. Va. 757, holds that a party does not hold adversely so as to avail himself of the statute of limitations during the pendency of the suit., and that a purchaser from him during its pendency is in no better plight as to those claiming under and through the suit.
This is good law, but the case of the defendant does not come under it. (1) The sale was of two hundred and fourteen acres, without further description, and the decree directed the commissioner to convey the land sold. He conveyed, not a tract of two hundred and fourteen acres, but five separate tracts,' the deed not even saying that they made up two hundred and fourteen acres, though when added they do. The evidence, either record or other, must show that the land conveyed is that directed to be conveyed, for the commissioner has no authority to convey any other. In Cales v. Miller, 8 Gratt. 6, Judge AlleN said that, as the decree merely directed the commissioner to sell and convey a tract of one thousand and one hundred acres referred to in the bill, such a general description of the land did not satisfactorily prove the authority of the commission to convey the tract conveyed, and that it was incumbent on parties claiming under the deed to show by the record what specific tract the commissioner was directed to sell and convey. In Waggoner v. Wolf, 28 W. Va. 820, it was held that, when a commissioner’s deed is offered to prove title, it is necessary to introduce so much of the record as will identify the land ; that is, show that the land ordered to be sold is the same as that conveyed by the commissioner. That is a question of the commissioner’s power. But suppose all the record is shown, but when shown it does not satisfactorily appear that the land conveyed is the same that was directed to be conveyed, the deed can not pass title.' Here it does not appear that the five separate tracts conveyed were the laud sold. True, the bill specified those five tracts as owned by the defendant, but the decree
So we conclude that the defendant neither showed hotter title, nor anything to deprive the plaintiffs of the benefit of the possession of Samuel Adkins and his heirs, the plaintiffs. Judgment affirmed.
Affirmed.