72 W. Va. 841 | W. Va. | 1913
The report of the decision on a former writ of error in this case, found in 62 W. Va. 575, fully discloses its nature and character and the main features of the evidence, and settles the principles involved. On the new trial then awarded, there was another verdict for the defendants on which judgment was rendered.
The argument submitted in support of the action of the court in refusing to set aside the verdict does not question the soundness of the principles enunciated and applied in the former decision. It abandons the argument in the former case founded upon conflict between the Patterson survey and the Banks survey lying to the northeast thereof, and the location of the Hamilton survey, as contended for on the former writ of error. It impliedly, if not expressly, admits the necessity, in the event of the adoption of the theory of the defendants, of either shortening lines of the Powell 470 acre survey, thereby reducing its quantity about one-half, or removing the Frogg and Wolfen-barger surveys a great distance to the southwest, contrary to the location thereof, as shown by monuments that are practically unquestioned.
The location of the irregular southern boundary line of the Patterson survey in accordance with the claim of the defendants, as controlling the location of the Powell 470 acre survey, is vigorously insisted upon. The Patterson survey lies east of the Powell survey and is one of its monuments, or, at any rate, its northwest corner and southwest corner are called for as corners of the 470 acre Powell survey. The beginning point of the Patterson survey is its southeastern corner, where two hickories and poplars on a hillside are called for. The line runs thence S. 80 W. 52 poles to a black oak, white oak and hickory, N. 54 W. 34 poles to a black oak, S. 80 W. 18 poles to a double maple, and S. 30 W. 30< poles to two white oaks, the southwest corner. The survey was made April 29, 1791. The two Powell surveys were made March 23, 1798. The 400 acre one is de
The erroneous description, if it was such, in the deed from Nathan Henning and wife to Chas. Stuart, relating to the beginning corner, is not conclusive. In other words, if the Hayes corner was not the corner of the 470 acre Powell survey, granted to Wm. Donaldson, its erroneous designation as such in the Henning deed does not estop the plaintiff from showing the true location thereof. The deed purports to convey .the whole of the Powell survey, and, with the single exception noted, calls for its courses, distances and monuments. The distance called for in it from the northeast corner of the small Wolfenbarger tract to the southwest corner of the Patterson survey, is 120 poles as in the original survey, and the deed described the land generally. as being the land granted to Wm. Donaldson and containing 4701 acres. As between the parties to that deed, the general description would prevail over a particular one, if it comported with the intention of the parties and the particular one did not, as is the case here. Mylius v. Lumber Co., 69 W. Va. 346; Baxter v. Tanner, 35 W. Va. 60; Smith v. Chapman, 10 Gratt. 445; Andrews v. Pearson, 68 Me. 19; Marshall v. McLean, 3 Ia. 363. Not being conclusive between the parties to the deed themselves, such mistake would certainly not conclude the grantee in favor of strangers. Manifestly, this recital is nothing more than a circumstance, bearing on the question of location, and entitled to only such weight as it may have under the rules of law governing the trial of issues of fact. It is supplemented by similar evidence found in the survey of the smaller Harrison and Dixon tract. The Patterson survey does not call for the Harrison and Dixon survey. The latter, being later, calls for the former. If under some misapprehension, a tree was taken as the corner of the Patterson survey which was not in fact such corner, but only a tree in the line of the prior survey, such erroneous adoption of a line believed to be, and designated as, the line Of the Patterson survey, is not conclusive. In other words, the Harrison and Dixon survey is not a monument or call of the Patterson survey, and the adoption of a line for the former as a line of the latter, which in fact is not
Our analysis of the evidence and definition Of its character . show lack or failure of certain identification of any of the lines or corners of the Patterson survey, the location of which is relied upon by the defendants as the vital question in the case. Plaintiff’s evidence as to identity of monuments is also inconclusive. The evidence submitted by the j>arties to sustain their respective contentions is about the same in character and quantity, in so far as it relates to the identification of monuments called for in the Patterson survey. That submitted by the defendants is supplemented by conduct of strangers and a recital in the Henning deed, as mere circumstances, not in any sense conclusive nor strongly probative. If nothing else appeared, the verdict of a jury founded upon this evidence would be unimpeachable and beyond the power of disturbance by the trial court. But, to allow a verdict for the defendants to stand on such evidence, under the circumstances disclosed here, would permit the jury to disregard and ignore practically the only evidence indicating the true location with any degree of certainty. As has been shown, the location of the Patterson survey, as contended for by the defendant, disarranges the entire system of surveys and does violence to the calls of the Powell surveys. It would reduce the quantities of both, and shorten specific calls and distances. The location of the Wolfenbarger tract is well established. Its northeast corner is -a fixed and
For the most part, the court’s rulings on instructions were correct. It erred, however, in refusing one instruction asked for by the plaintiff, and designated as No. 2. In effect, it would have been a direction to find for the plaintiff, for it would have required the jury to find the plaintiff entitled to so much of the 57 acre tract of land as lies within certain designated lines, run by course and distance from the northwest corner of the Patterson survey, as located by the plaintiff. As the evidence for the defendants was insufficient to sustain a verdict in their favor, for reasons already stated, it was the duty of the court to direct a verdict for the plaintiff, if asked to do so, or to give the Jury a peremptory instruction to find for the plaintiff. Such is the character of the instruction the court refused. As there was some evidence tending to sustain the theories of instructions Nos. 2, 3 and 4, given for the defendant, the court properly overruled the objections to them. Evidence insufficient to sustain a verdict may, nevertheless, justify the court in giving instructions embodying the hypotheses it tends to establish. State v. Clifford, 59 W. Va. 1.
For the errors noted, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed and Remanded.