73 W. Va. 240 | W. Va. | 1913
Lead Opinion
This suit in ejectment was once before in this court: 69 "W. Va. 268. The new trial then granted has been had, resulting in a verdict and judgment for defendant. Again plaintiff comes ashing a reversal. Quite a different record is now presented.
It appears that the small parcel of about two acres in controversy was long in the possession of one Gasper Myers, who held the same by hostile occupancy and enclosure in connection with his adjoining land, as against those under whom defendant now claims. That Myers so held it in such a way and for a period sufficiently long to vest him with title to it by adverse possession, is proved conclusively by the testimony, facts and circumstances, including admissions in the testimony of defendant himself. .It became a part of Myers’ boundary of land, even though it may have been covered by the title papers of those under whom defendant claims. His possession adverse to them gave him the land. It descended to his heirs. They and his widow continued after his death such possession in connection with the whole boundary of which he died seized and possessed. 'Wherein the verdict of the jury involves a finding different from this, it is wrong and plainly against the great weight and preponderance of the evidence. In so viewing the case, we do not at all transgress the rule that the jury are the judges of the credibility of witnesses testifying before them; for defendant practically admits the fact of the adverse possession of Gasper Myers and his widow and heirs after him, as we have stated it, and the overwhelming facts and circumstances are in accord with his admissions relative to such possession. It will serve no good purpose to go into details in this particular. That the record supports our conclusion as uncontrovertible is enough.
After the death of the widow of Gasper Myers, one of the heirs, Abraham Myers, who had been in possession of the land with his mother, the widow, until her death, conveyed his
Under the Abraham Myers deed Stover went into possession of the nine acres. Thus for himself and his co-tenants he was in possession of the parcel in dispute; for the bounds of his deed, as we have seen, took in the same. He and his co-tenants were the owners of the same by virtue of the descent of the title which Gasper Myers had obtained by •adverse possession, and the conveyance of an interest therein.
Stover later conveyed to plaintiff, who entered into possession of the nine- acre tract. But in the deed conveying his interest to plaintiff, Stover made a very significant change in the
But the case has another feature. In 1908, subsequent to the date of Stover’s conveyance to plaintiff, the parcel in controversy was proceeded against by a suit in the name of the State as land liable to be sold for the benefit of the school fund. Plaintiff and Stover were made parties to that suit and directly summoned to answer the same. By decree therein the parcel was sold and purchased by plaintiff. A subsequent decree confirmed the sale and directed that the parcel be conveyed to plaintiff by a special commissioner appointed for the purpose. Pursuant thereto the parcel was conveyed- to plaintiff. Though Stover, who, as we have observed, had title to an interest in the parcel, was a direct party to the State’s suit for the sale of the land and was duly served with process to answer, he made no defense to the same. He confessed the fact that the parcel was subject to sale for the benefit of the school fund. Though he had opportunity to defend and to show that the parcel was not state land, that it was not forfeited by non-entry or- non-payment of taxes, he did not do so. Then as to him that fact is foreclosed; he has
The trial court would not allow the deed from the special commissioner and the'record of the suit on which it was based to be admitted as evidence. This refusal was upon the theory that defendant was not a party to that suit and was therefore not bound by the proceedings therein. But clearly the deed and the record underlying it were pertinent and material evidence in this ejectment suit. Those papers were evidence showing that Stover’s title to the land in controversy had been transferred to plaintiff. Taken with the fact which we have found undeniably disclosed by the evidence that those under whom defendant claims had lost title to Gasper Myers by adverse possession, if indeed they ever had title, the special commissioner’s deed was a link joining plaintiff to the title which Gasper Myers acquired by adverse possession. The case upon the whole discloses that it was plain error to refuse the admission of the special commissioner’s deed and the record supporting that deed.
That plaintiff upon the record made at the trial should have had judgment for an undivided one-sixth interest in the small parcel in- controversy, definitely described in the declaration, we have no doubt. The court expressed the view during the trial that a suit in ejectment could not be maintained for an undivided interest in land. Under our law such view is clearly erroneous. Code 1906, ch. 90, sec. 26; Postlewaite v. Wise, 17 W. Va. 23.
The deed of the special commissioner to plaintiff and the record underlying the same should have been admitted in evidence and the ease submitted to the jury under instructions covering correct views of the case, thus vouching to plaintiff the verdict and judgment to which he was entitled by the record. For the error in not so trying the case as the law and the evidence demanded, the judgment must be reversed, the verdict set aside, and a new trial awarded.
Concurrence Opinion
(concurring):
I am in accord with the conclusion expressed in the opinion and all the subsidiary findings except one, namely, that Stover’s deed to McDermitt does not pass such title to the one acre and 149 poles as the former acquired from Myers. The particular description in the Stover deed does not include it, but that description is followed by a general one that does. The latter reads: “Being the same land owned by Gasper Myers at the time of his death.” This is aided by the situation, surroundings and purposes of the parties, manifesting intent on the part of the grantor to part with such interest as he had in the land1 so generally described.
If the subsequent general clause were restrictive, it would have to be rejected, under the rule precluding limitation of a grant in a preceding clause by general terms in ,a subsequent one. This one does not limit, restrict or cut down. It énlarges, and there is no express conflict between the two descriptions. They may be read together and considered as one, the first part being inaccurate and the other full and complete. But, if they were separate, the last one best comports with the intention of the parties, as shown by the circumstances and their conduct. Both parties thought Stover owned the one acre and 149 poles as well as the residue of the tract Myers had so long used as part of it and claimed as his own. Abraham Myers had put him in possession of it. Under his deed to McDermitt, he yielded possession of that as well as of the other part. Though denying intent to convey it, he no longer claims to own it. He merely tries to disparage his grantee’s title by his denial of intent and expression of opinion favorable to the claim of Forbes, conduct the law frowns upon and disallows. An undivided one-sixth of this small remnant of land always used as part of another tract would be practically worthless to him and there is a presumption against intent to reserve so diminutive ,an interest by a deed conveying the principal subject or to except it, in view of which any terms of the deed at all applicable to it by way of ’ description are sufficient ot pass it. Of course there must be something in the deed, expressive of intent to convey it, but very general and indefinite terms will suffice.
“That (description) must control which best expresses the
“Generally, it will not be presumed that a party granting land intends to retain a long narrow strip next to one of his lines.” W. M. & M. Co. v. Coal Co., 8 W. Va. 406. It is presumed he does not. Idem; Oil Co. v. Caldwell, 35 W. Va. 95, 99; Clayton v. County Court, 58 W. Va. 253. The interest in question here is not a long narrow strip, but it is equally slight, useless to the grantor and inconsistent with general intent and falls under the same rule. The form of the alleged exception is unimportant.
Reversed and New Trial Awarded.