81 W. Va. 239 | W. Va. | 1917
Defendants complain of the judgment of the circuit court of Cabell county in an action of ejectment by which the plaintiff recovered a .tract of land containing something more than seven hundred acres, situate in Logan county, West Virginia. It is admitted that this tract of land is a part of a large tract owned by John Dempsey in his lifetime, and that the defendant United States Coal & Oil Company is the owner of this Dempsey land, unless Dempsey before his death conveyed away the parcel involved in this suit. The plaintiff claims under a deed executed to him by William Lucas and wife, dated the 25th day of November, 1911, and under a conveyance alleged to have been made by John Dempsey in the year 1864 to William Lucas, which’ conveyance it is alleged was destroyed without having been recorded. The defendants insist that the evidence introduced to establish this
In considering the evidence introduced upon this subject we must not lose sight of the principles ■ of law which govern in cases where it is sought to ■ substitute for a deed parol evidence of its prior existence. The spirt of our law is that title to land shall pass only by deed or will, and where it is sought to set up title under a lost deed, the evidence of the execution of such deed, of the contents thereof, and of its delivery, must be clear and Convincing, approaching in dignity the conclusiveness of a written instrument. This rule has been laid down and adhered to by this Court and the Supreme Court of Appeals of Virginia without exception, and we think it is a rule based upon sound considerations of public policy. The opportunities for the perpetration of fraud in establishing titles by proof of lost instruments would be so great unless the rule was thus strictly enforced that uncertainty of land tenures would result, and the mischief thus produced would be very much greater than any injustice which may follow from the application of such a rigid rule. In the case of Telluric Co. v. Bramer, 76 W. Va. 185, it was sought to establish title to.the oil and gas in a tract of land by proof of a lost deed. In that case one of the grantors in the deed, the other being dead, testified to the execution of the deed; that it had been signed and acknowledged by himself and his co-grantor; that it conveyed a one-half interest in the oil and gas in a particular tract of land. In addition to this, certain memoranda made by the.grantee at the time of the transaction were introduced showing that he had made such a purchase as that indicated by the oral testimony o'f the grantor. It was held, however, that the evidence was insufficient to establish a lost deed. The evidence of the grantor upon which reliance was had was given twenty years after the purported execution of the paper.
In this case there is but one witness who claims'to have seen Dempsey execute this deed. This is the mother of the plaintiff. At the time she testified she was eighty-four years ■of age. She states that she could neither read nor write. Her evidence is in effect that about the year 1860 she married William Lucas; that before she was married Dempsey told her that William Lucas was his natural son, and that he was going to make provision for him out of his estate; that when they were married they moved into a little cabin upon the tract of land in controversy, and remained there for a few years; that during the Civil war her’husband was away part of the time, and during that time they removed from this cabin; that a.fter her husband returned from the war in 1864 they were moving back from Peek’s Mills, where the family had stayed, and being overtaken by a storm stopped at the residence of a man by the name of Fillinger; that her child was ill and they sent for Doctor Hugh Bryant to attend the sick child; that while they were there John Dempsey, the owner of the land came in; that in the course of the conversation he asked Lucas why he did not go back on the farm to reside; that it was his, and that he ought to go back and take care of it; that Lucas replied that he did not care to go back there under the uncertain conditions that then existed; that he had no title to the land; that Dempsey had told him repeatedly that he was going to make him a deed to the land, but that he had never done so, and that he did not intend to go back until he had some written assurance that he was the owner of the land; that Dempsey therupon says, “I will, make you a deed for it right now;’’.that paper was produced; that Doctor Bryant, who was also a justice of the peace, wrote the deed; that it was read over by Doctor Bryant in the presence of the witness, was executed by Dempsey and acknowledged before Doctor Bryant as a justice of the peace, and delivered to Lucas; that subsequently, when the weather abated somewhat, Dempsey sent his own teams to Fillinger’s house and removed William Lucas and his family onto the tract of land, and that William Lucas resided on
The judgment of the circuit court of Cabell county will be reversed, the verdict of the jury set aside, and'the cause remanded for a new trial.
Reversed and remanded.