5 Gratt. 141 | Va. | 1848
It seems to me that the appellees have succeeded in obtaining a verdict and judgment for the land in controversy, without any sufficient evidence of title, or in lieu of it of a sufficient adversary possession by them and those under whom they claim.
It is not disputed between the parties that in the year 1792, a patent for 500 acres of land, embracing the 24 acres in controversy, was granted by the Commonwealth to Mead, under whom the appellant claims; and that Ryan, who asserted a right to the land so patented, in hostility to Mead, in the year 1797 conveyed 200 acres thereof, including the 24 acres to Dudley, under whom the appellees claim ; and that in September 1801, Mead conveyed 200 acres of the same patented land to Dudley. The boundaries of the deed from Ryan, as represented in the plat and report of the survey made in the cause, are the same with those of the deed from Mead, except those lines of the former which take in the 24 acres. It is also undisputed that at the time of the conveyance from Ryan to Dudley, it was agreed be
Though the deed from Ryan to Dudley was given in evidence on the trial by the appellees, they proved by their own witnesses the success of Mead in his controversy with Ryan, and the repayment of the 20 pounds, with interest, by the latter to Dudley.
The deed from Mead to Dudley was also given in evidence by the appellees on the trial, but they made no effort, it would seem, to prove that its boundaries embraced the 24 acres in controversy. As represented in the plat and report of the survey made in the cause, conforming substantially to the calls of that deed, the boundaries thereof exclude the 24 acres, and no pretensions of the appellees to the contrary were reported by the surveyor.
The appellees, it is true, claimed, and examined witnesses to prove, division lines between Mead and Dudley, which, if established as such, would throw the 24 acres into Dudley's part of the patented land ; but their claim was not by force of the calls in the deed from Mead to Dudley, but by force of a parol agreement between those parties. Those witnesses deposed that Mead and Dudley, in the year 1800 or 1801, run and marked a line, which they then agreed should be the division line between them, and that Mead then promised to make a deed to Dudley for the land “run off” by that division line. The division line, or rather lines, the witnesses designate by reference to the plat of
The evidence of the appellees’ witnesses is also contradicted and impeached by the witnesses examined for the appellant, whose testimony tends to prove that the division lines spoken of by the former as having been run and marked by Mead and Dudley, in 1800 or 1801, are in truth lines of Ryan's deed to Dudley, anciently marked, before the date of that deed; and that the only division line run and marked by Mead and Dudley was a blazed line corresponding in date with Dudley's purchase from Mead in 1800, and excluding therefrom the land in controversy. It would be improper, however, to go into a discussion of the conflicting parol evidence introduced by the parties, inasmuch as under the well established rules of this Court, in relation to bills of exception to decisions granting or refusing new trials, it could avail the appellant nothing.
The general rule of this Court on the subject, as settled by the case of Bennett v. Hardaway, 6 Munf. 125,
In this case, therefore, the question whether a new trial ought to have been granted, turns upon the title papers introduced by the parties, the plat and report of the survey made in the cause, and the parol testimony on the part of the appellees.
It will be seen, from what has been said, that there is an irreconcilable repugnancy in the appellees’ own evidence, and on very material points. Their witnesses were introduced to prove, that about the date of the deed from Mead to Dudley, lines were actually run between those párties, which threw the 24 acres in controversy into the part of the patented land sold by the former to the latter. Now, this parcel of 24 acres is a triangle, lying, as represented in the plat and report of the survey made in the cause, between certain boundaries of the deed from Ryan and certain boundaries of the deed from Mead, the former embracing so much more of the patented land than the latter. It was therefore important for the appellees to prove that the boundaries of the deed from Mead were identical with those of the deed from Ryan, which embraced the 24 acres; and as this could not be done from the respective calls of the two deeds, it was attempted by parol evidence ; and the witnesses deposed to the running and
I am aware of no principle or authority to prevent the Appellate Court from rejecting so much of the parol evidence for the appellees as is disproved by their own title papers; and cannot doubt, for obvious reasons, the propriety of our doing so. At the same time, I presume, the jury being the proper judges of the credit and weight due to the testimony of the witnesses, that so far as it is not so disproved, it must be taken as true. How, then, does the case stand upon the appellees’ own evidence ?
There has been no attempt on the part of the appellees to prove that the land in controversy is embraced by any calls of the deed from Mead to Dudley, under which they claim. All the lines of that deed, without exception, are therein described by courses, distances and corner trees, and some of them also call for adjacent lines. Without reference to the courses, distances and monuments so called for, the appellees undertake to prove, by the testimony of witnesses, the running and marking of a line or lines of division about the date of the deed; but without any evidence, by blocking the marked trees, or otherwise, that the marks correspond with the date of the deed, though the lines so contended for are the identical boundaries called for by a different conveyance. I shall not question the veracity of the witnesses, nor attempt to weigh their testimony: but I think it clear, that the evidence is not sufficient in law to shew title in the person under whom the appellees claim.
Upon questions of boundary, where the particulars of description in the deed are conflicting, it becomes necessary to select those most worthy of confidence ; and it is well settled that courses and distances must yield to the natural and marked monuments called for in the instrument. Some of the American cases have held, in conformity with what a rigid adherence to principle would seem to require, that the monuments which are
It will thus be seen that the common law rule, requiring the monuments relied on to be mentioned in the deed, has with us been a good deal relaxed; and the relaxation may probably be attributed to the provision of our land law, directing surveyors, in making surveys of lands to be patented by the Commonwealth, to bound the same by marked trees, where a water course or ancient marked line shall not be the boundary. It thus being made part of the surveyor’s duty to mark the lines, if such marked lines are found on the ground, his omission to notice them in his report, or noticing their termini inaccurately, may be placed on the same footing with other omissions or inaccuracies of description in regard to courses, distances, &c. introduced into the patent from the certificate of survey. And this relaxation in regard to patents would naturally extend to deeds consequent upon, or growing out of them, as is the case with all our conveyances.
Nor must we lose sight of the distinction between mistakes in the description of the property conveyed by the instrument, and a mistake in the omission to convey all that the parties may have contemplated by a previous executory contract; for though the former may be sometimes corrected, or rather disregarded, the latter is always fatal in a legal forum. And here the evidence of the appellees’ witnesses proves, at most, an intention at one time to convey the land in controversy by deed, but the calls of the deed shew that it was omitted, whether by design or mistake is immaterial.
As to the other ground of the appellees’ claim, that of an adversary possession on the part of Dudley, without title, the evidence of their witnesses tends only to the proof of a brief and fleeting possession of the land in controversy, far short of the prescriptive period derived from the statute of limitations; and the posses
In regard to the question presented by the first bill of exceptions, to wit, the admissibility as evidence for the appellant, of the paper found amongst Mead’s papers, purporting to be a survey made for him of a tract of land, embracing the land in controversy, I deem it unnecessary to express an opinion. The paper was offered merely to prove.that Mead claimed the land in controversy, in order to rebut evidence which the bill states the appellees had previously introduced, tending to prove that Mead had acquiesced in the possession of Dudley, and abandoned any claim to the land in controversy. What the evidence was, which the appellees had so introduced, is not stated. The other bill of exceptions— to the decision of the Court overruling the appellant’s motion for a new trial — sets forth all the evidence in the cause ; and I think, therefore, we are at liberty to look into it, for the purpose of ascertaining whether the appellant was prejudiced by the rejection of the paper; and it is clear that he could not have been thereby prejudiced, for. the appellees’ evidence of Dudley’s possession was utterly worthless; and in truth, there was no evidence of acquiescence or abandonment on the part of Mead, if that could have availed the appellees any thing. The suggestion, therefore, in the bill of exceptions, of the only ground upon which the paper was offered by the appellant, seems to have been a mere surmise, without any real foundation.
I think the Circuit Court erred in refusing to grant the appellant a new trial, and that the judgment ought, therefore, to be reversed.
As to the private survey found amongst Mead's papers, I cannot perceive any ground for admitting it in evidence, or that it could have had any relevancy to the case if admitted.
But upon the first question, it seems to me the Court erred in overruling the motion for a new trial, and that the judgment for that cause should be set aside.
Daniel, 3. concurred in Baldwin's opinion. '
The judgment of the Court was as follows:
It seems to the Court, that the question whether a new trial ought to have been granted by the Circuit Court, turns upon the title papers introduced by the parties, the plat and report of the survey made in the cause, and the parol testimony on the part of the defendants in error; and that the parol testimony on the part of the plaintiff in error ought to be excluded from consideration. But that notwithstanding such exclusion, the defendants in error have failed to shew that Gwin Dud-lei/, sr., under whom they claim, acquired title from William Mead, under whom the plaintiff in error claims, to the land in controversy; and that they have also failed to shew, that they and those under whom they claim, had at any time a sufficient adversary possession thereof to sustain their action: And therefore that the Circuit Court erred in refusing to grant to the plaintiff in error a new trial.
Judgment reversed with costs, a new trial directed, and the cause remanded.