58 W. Va. 366 | W. Va. | 1905
Lead Opinion
James BE. Logan brought a chancery suit against Wirt C. Ward and Elihu Hutton to remove a cloud over Logan’s title to land, and upon the hearing Logan’s suit was dismissed, and his heirs appealed.
I state Logan’s claim thus: By patent dated 13th February, 1798, the State of Virginia granted to William Bow-yer, William Breckenridge, Hugh Paul and Edward Bryan a tract of 50,000 acres of land in Randolph county, called the Breckenridge survey. William Logan obtained the conveyance of the Breckenridge and Paul shares in said tract, and was thus owner of half of it. James H. Logan claims that his father,. William Logan, had deeds for the other interests in the tract, but does not show them. William Logan by deed dated 15th May, 1851, conveyed to his sons, James
Counsel for Logan devotes effort to sustain the equity jurisdiction in this case, seeming to doubt it because of the well known rule that equity will not try title to land. It is true that this is practically an ejectment in equity, because it is only a battle between distinct and adversary titles; but the case falls under the head of equity jurisdiction to dispel cloud over title to land arising from adverse claim. There is some evidence in the case tending to show that the defendants were in possession of the disputed land, and if that were in fact so, I do not think a suit in equity could be sustained, since by common law I think it is clear that where, one man is in actual possession and another enters upon him under adverse claim, the true owner, may, by common lay, regardless of our ejectment statute, sustain ejectment. The-intruder’s entry is a disseisin or ouster, but only a partial one, to the extent of his inclosure, his adversary still retaining his former possession. Taylor v. Burnside, 1 Grat. 223; Core v. Faupel, 24 W. Va. 246. The true owner still remaining' in possession may treat his enemy’s entry as an ouster and sue in ejectment. “The plaintiff in possession of: a portion of the premises may bring ejectment for the remainder in the defendant’s possession.” 1 Am. & Eng. Ency. L. (2 ed.) 526. Tapscott v. Cobb, 11 Grat. 172; Witten v. St Clair, 27 W. Va. p. 771; Stewart v. Coalter, 4 Rand. 74. Therefore, if in face defendants were in possession when suit was begun, I think there could be no jurisdiction in equity because before our present ejectment statute-ejectment would lie. Equity long ago assumed jurisdiction to remove cloud, but only in favor of one in possession, because he could not sue in ejectment; but where both are in possession he can sue by common law. Va. Co. v. Kelly, 24 S. E. 1020. But the evidence shows that the defendants, were not in possession actual when this suit began, and.
This is an ejectment in equity, because a contest between hostile titles, and in it we must apply the rule in ejectment that a plaintiff must recover upon the strength of his own title, no matter how weak his opponent’s title may be. Those only who have a clear title connected with actual possession have a right to claim the interference of equity, to dispel a cloud over their title. Henry v. Oil Co., 57 W. Va. 255; Hitchcock v. Morrison, 47 Id. 206; Christian v. Vance, 41 Id. 754; Moore v. McNutt, 41 Id. 695; Hogg, Eq. Princip. 83; Helden v. Helden, 45 Am. St. R. 371, 80 Md. 616; Dewing v. Wood, 111 Fed R. 575 and citations in Judge Goff’s opinion. The plaintiff cannot recover, unless he fixes on the ground his exterior boundaries by lines and corners. Coal Co. v. Howell, 36 W. Va. 490; Millev v. Holt, 47 Id. 7. The plaintiff cannot meet this requirement. He claims under the Breckenridge survey. He has not identified it. He claims that the defendant’s land lies within that survey. The defendants deny it. Not a corner or a line of that survey is proven. No man proves that he ever saw a corner or line of it. No reputation thereof is given. Marstiller’s evidence is relied on by the plaintiff. He is a young man of •only forty-two. He does not state that he ever saw what he knew to be an original corner or line to this old survey made away back in 1798. He tested no corners or lines. It is proven that clearing and fire breaks have destroyed them, if
Taking his whole evidence it is manifest that he knows nothing of the actual location of the survey, and simply has an opinion as to its location standing on no basis. The same may be said of Tallman’s evidence. He is fifty-six years of age. He says he knows of the survey only in a general way. When asked if he knew the Breckenridge sux-vey he replies, “I know of it in a general way.” He never ran or tested any of its known lines. Though asked if he had seen any of the original corners or marked lines, he could not say that he had. He said he did not give much attention to marks when he was running a line or two at the request of the plaintiff’s attorney in this case. He said he was not definite about' the lines. Next take the evidence of James H. Logan, himself a surveyor. I can safely say that if any living man could be brought to identify this survey it would be Logan. He says he was bom in 1816, and with his father moved from Rockbridge county, Virginia, to this survey in 1827. His father claimed it and resided, as claimed, within the survey. James H. Logan and his brother claimed it for years. He knew it when a young, active man, when the marked tx-ees constituting its lines and corners, were yet probably standing. He was a practical surveyor, deputy of the county surveyor. In all his surveying, in all the surveying of those old surveys, he does not tell us on the witness stand that he saw or knew a marked corner or line tree of this old survey, or had one shown him by an ancient. He said distinctly, “I have never made a survey of these lines of the Breckenridge survey, but believe it is correct as laid down in the map.” He refers to the map or plat used in the present case. He does not claim to know a corner or line except from mere hearsay — not that even. His evidence
As to any claim under the See deed, that is liable to the same objection just stated; it is not located; for the See land is the Breckenridge land. Besides, the deed from See to Logan being a quit claim deed dating after the conveyance from William Logan to James H. Logan and Joseph M. Logan, they could derive no title from it. Such a deed does not pass after-acquired’land. Such titles as William Logan had to it went to his heirs and they are not joined in this suit, as they must be to recover, they being parceners. Newell on Eject. 64; 7 Ency. Pl. & Prac. 317; Marshall v. Palmer, 91 Va. 344; Nye v. Lovitt, 24 S. E. 345. This is another bar against Logan’s recovery in this suit. The bill alleges that the Breckenridge tract was sold for direct taxes, purchased by Jinks, and by him conveyed to See, and by him conveyed in part to William Logan. The bill does not assail this tax title, but on the contrary puts it forward as a good title. It is vested in William Logan’s heirs, of whom we know there were several. Is it not an outstanding title?
I see another reason against Logan’s success in this suit. Logan presents deeds to his father for only two of the four shares of the patentees under the Breckenridge patent; but for want of deeds from the other two patentees under the Breckenridge patent he summons the doctrine that from long possession the law will presume conveyances from them to his father or to him. There is a salutary principle that from long possession the law sometimes presumes a grant in order to quiet possession and make it consistent with rightful title. The tooth of time may have destroyed the deeds. Under this rule this Court raised a presumption that Lord Fairfax had granted. to Virginia the famous Berkeley Springs property now owned by this State. Virginia and this State had held long, long possession, but showed no grant. One was presumed. Smith v. Cornelius, 41 W. Va. 59. It is established that grants from the state will be so presumed. Mathews v. Burton, 17 Grat. 312; 1 Greenl. Ev., § 45. A deed from a vendor to vendee may be presumed to save land from forfeiture. Hale v. Marshall,
There is another insuperable obstacle in the way of the plaintiff’s success. The Breckenridge grant and the Jinks, deed being an inclusive grant and deed, that is, excluding from their operation certain lands and passing no title to the excepted land, Logan must show that the land he seeks to assert title to in this case is not the land so excepted. The reason for this will be found stated in Stockton v. Morris, 39 W. Va. 432. I cannot add anything to what is there said,, except to add to the authorities there cited the case of
There is another bar against Logan’s recovery. The land he claims from the defendants is forfeited for omission to charge it for taxes. The Breckenridge was on the boobs down to 1851. In 1852 William Logan was charged with six thousand acres transferred to him from C. C. See. He abandoned all the land save that part conveyed by See by omitting from tax books. The six thousand acres continued on until 1856. In 1857 Logan is charged with four thousand seven hundred and fifts»- acres in lieu of six thousand, and was charged with four thousand seven hundred and fifty acres down to 1860, and’ it was never afterwards on the books. That is the last charge to William Logan. Never was any of this land under the Breckenridge title charged to James H. and Joseph M. Logan, because the quit claim deed to them from their father, dated 15th May, 1851-, never was on record until August 5th, 1899. Anyhow, it was not on the books to them. ' So we say that the Breckenridge was not, in the whole or part, on the books after 1860. That forfeits it for non-entry under Article 13, section 6, Constitution. It is true that Logan and his brother, Joseph, owned three tracts of eight hundred and fifteen, one thousand and one thousand acres, and they, in one or another name, have been on the tax books, one from 1851, one from 1852, one from 1854; but their title, to the eight hundred and fifteen acres came from a grant, 30th November, 1850, to James H. and Joseph M.
We see no reason to differ with the finding of the circuit court, and therefore affirm its decree.
Affirmed.
Dissenting Opinion
(dissenting):
The decree in this cause, which the Court now affirms, does not merely dismiss the bill because plaintiffs fail to show their title to the land, covered by the patent which they wish to cancel, and thus remove a cloud from their title, but determines that the plaintiffs have no title and that the defendants have. The decree reads as follows: “It is therefore adjudged, ordered and decreed that the plaintiffs take nothing by their said bill and suit, that the same be wholly dismissed and that the said defendants,” etc.
Believing as I do that, under our practice, the ordinary equity jurisdiction, unaided by statute, there can be no such thing as an ejectment in equity, I cannot concur in that part of the decision which affirms the adjudication against the plaintiffs as upon the merits. I think the bill should have been dismissed in such manner as not to prejudice any rights which they might assert in any other proper proceeding either at law or in equity. The theory of' a bill to remove a cloud is clearly and well stated by the supreme court of