63 W. Va. 51 | W. Va. | 1907
W. H. Parks brought an action of assumpsit in the circuit court of Ritchie county against Morris, Layfield & Co., and recovered a verdict and judgment, and the defendants bring the case to this Court.
The first point arising is the claim for Parks that we cannot consider the evidence or instructions or ruling upon evidence for the reason that no exception was made to the action of the court in rendering judgment. There is nothing in this point. There was a motion to set aside the verdict, and an exception to the ruling of the court refusing to do so. This Court has repeatedly held that while there must be a motion for a new trial and exception for its refusal, that is enough to authorize the review of the case where bills of exception present the case properly. This Court has never demanded, as a requisite for such review, that there shall be an exception to the rendering of judgment. By making the motion for a new trial, and exception to its refusal, the party has protested against carrying the verdict into judgment. In Congrove v. Burdett, 28 W. Va. 220, it is explicitly held that when points in the case are saved and a motion for a new trial overruled, and exception to the action of the court in overruling such motion, that is enough. In the case decided at this term, Chadister v. B. & O. R. Co., this is distinctly held.
Parks’ demand is for timber cut upon land claimed by him and also claimed adversely to him by Simon Sterne. Morris, Layfield and Co. received a deed from Sterne convoying the timber and cut the timber from the land. Parks claims that Morris, Layfield and Co. made a contract with him for the conditional purchase of the timber. Parks exhibited a deed to him from one H. H. Bennett for the land. Sterne brought an action of ejectment years ago against Parks on account of the latter’s claim to the land. Sterne claimed the land under a sale and deed made by the commissioner of forfeited and delinquent lands in 1846, under an old title emulating from the Commonwealth of Virginia in 1797, and claiming that in the conveyence to him from the commissioner of
Several instructions submitted to the jury the question whether such a contract was made and predicated recovery on it, if there was such contract, and such instructions are bad for that reason, no such contract having been proven.For this reason plaintiff’s instructions Nos. 1, 3, 7 and 8 are bad.
Even if we take Parks’ own statement of the contract, it is not sufficient for recovery. He states that he was to be paid for the timber only at the decision of the two cases then pending, the ejectment and chancery suits. Such is the fair interpretation of his evidence. His words are, “The contract was he was to pay for it at the decision of these law suits that w’ere pending-. ” They never were decided on their merits. A non-suit was entered in the action of the ejectment. As is well known a non-suit decides nothing of the merits. The chancery suit was dismissed for failure to file'an amended bill, “without prejudice to the plaintiff and their ejectment suit now pending in this court on the docket in the name of Simon Sterne vs. W. H. Parks, et al. ” So, nothipg was decided as to the merits in the chancery suit. Now, if Morris did agree to pay Parks for the timber on the decision of these suits, what was the true meaning 'of the parties ? Was it the intention to pay without such a decision of those suits as would decide their merits ? Surely not. If there should be a final decision on the merits in favor of Sterne the timber would belong to Morris, Lafield and Co.; whereas if such decision should be in favor of Parks the timber would belong to him. The chancery suit was dismissed on the motion of Parks and presumably the non-suit likewise, as the order shows the defendants were present when the non-suit was entered. So, Parks prevented a decision on the merits. Therefore, the alleged contract as stated by Parks would not support the verdict, because a condition of it was that payment for the timber was to be made only upon a determination of those suits, that is, a determination which should settle the title to the land finally and be res judicata.
But though there was no contract to justify a recovery by Parks, we must inquire whether a recovery, in an action of assumpsit, could be had on the ground that the defendants cut and converted to their own use wrongfully by trespass the timber of Parks, belonging to Parks if even it did belong to him. Parks showed no title-paper save the deed to him from Bennett. He traced no title from an original or common source. There is no doubt that an owner of land whose timber is wrongfully taken from it and sold or converted from it by trespass may waive the tort and recover the value of the timber upon the common counts. He may recover on a quantum valebat, if not sold, and for money had and received, if sold. The timber having been converted into personalty by severance its true owner may recover its value in assumpsit. Maloney v. Barr, 27 W. Va. 381.
The plaintiff himself by introducing the record of the
Therefore, instructions Nos. 2, 7 and 8 for the plaintiff were erroneous because they submitted the question of title to the land to the jury; because the title could not be at all tried in the action.
Complaint is made of the action of the court in allowing a question to be put to Parks as a witness as to whether or not he had title to the land at the time the chancery suit and
Plaintiff’s instruction No. 3 told the jury that the recordation of the deed from Bennett to Parks gave the defendants notice of the title of Parks, and therefore the defendants could not be innocent purchasers for valuable consideration without notice of Parks’ title. That meant that such notice would affect the defendants so that they could not buy the timber from Sterne. This instruction is erroneous. These parties claim by adverse title. The record of a deed is notice to purchasers and creditors from the same grantor who made the deed. It has no effect at all on one purchasing from another party. Though the defendants had notice of that deed, actual or constructive, or both, that had nothing to do with this case. Sterne had one title, Parks another hostile one. It will not do to say that when one man purchases land-from" one claimant; another cannot purchase the same land from a hostile claimant, simply because he had notice of the other man’s purchase. The very letter of section 10, chapter 74 of the Code, is that “ A purchaser shall not under this chapter, or chapter 75, be affected by the record of a deed or contract made by a person under whom his title is not derived.” Hoult v. Donahue, 21 W. Va. 294. “Constructive notice, by recordation of deeds and other instruments, is operative only among parties claiming rights under the same title. Between claimants under distinct and hostile titles, notice is ordinarily immaterial and inoperative.” Webb v. Ritter, 60 W. Va. pt. 15, p. 195. This instruction not only puts bad law, but is objectionable also in that it went to support Parks’ claim of title to the land, which is inadmissible in assumpsit where there is conflict of title. For two reasons it had nothing to do with the case.
Another point. If title could be investigated in such an action, it might be (I say it might be) that possession, being prima facie evidence of title, a party in possession and an
We think from principles above stated that the court erred in refusing defendants’ instruction No. 3, telling the jury that the plaintiff must have good title. We think the court erred in refusing defendants’ instruction No. 4, telling the jury that the mere deed to Parks from Bennett, itself conferring no title, he could only get title under it bj^ actual possession for the time required for it by the statute. We think the court should have given the defendants’ instruction 10 and 11, saying that to make such contract as is claimed by the plaintiff binding there must be offer and acceptance and that the mere inquiry by Parks of Morris what he was paying Sterne and the question by Morris to Parks whether he would take that price if the suits involving title should result favorably to Parks, did not constitute a complete contract. We think also No. 12 should have been given.
We think the insertion, as an important element in the case, in instructions for the defendants Nos. 3, 6 and 10 of
It follows that the court should have set aside the verdict and not rendered judgment on it.
Other matters are discussed in briefs, but they are irrelevant to the case, and any expression upon them would be -obiter, since it being a case dependent on conflict of title to land the action of assumpsit does not lie.
Our conclusion is to set aside and reverse the. verdict and judgment, and remand the case for a new trial.
Reversed. Remanded.