83 Va. 20 | Va. | 1887
delivered the opinion of the court.
The two judgments of the circuit court brought under review were rendered, one on the .fifteenth day of April, 1884, and the other on the fifteenth day of April, 1885, both in the same action, and involving but one issue, to-wit: the right of the possession of the lot of land in question. The record of the first trial shows that, when the cause was called for trial in the county court, upon the issue joined" upon the plea of “not guilty,” the whole matter of law and fact was submitted to the court, both parties having waived a jury, when the plaintiff, Samuel S. Pettit, trustee, introduced a deed, duly executed and acknowledged, for record, by which F. J. Mahoney and wife conveyed to him the fee-simple title to the lot of land described in the summons and in the said deed, and stated that, as defendant’s counsel admitted that the defendant claimed the said lot in controversy under a parol contract for the purchase thereof from said Mahoney, under which contract the said defendant had taken possession, he, the plaintiff, would not introduce any further evidence, and rested his cause there. The defendant’s counsel then offered to introduce the deposition of the defendant; to the introduction of which the plaintiff excepted, on the ground that the defendant had admitted that the alleged contract was not in
The writ of error and supersedeas awarded by one of the
In Smith v. Hutchinson, 78 Va. (3 Hansb.) 683, Richardson, J., delivering the opinion of this court, said: “ We do not decide that the circuit court should, where a cause is remanded for trial in the county court, spread in its order at large the character of the cause shown for so doing; for to do so would in many cases be inconvenient, and would unnecessarily cumber the record. It is necessary and proper, however, that the judgment in all such cases show, either that it was done for good cause shown, or else by agreement of the parties.”
It was the duty of the circuit court, under the statute as construed by this court in the case of Smith v. Hutchinson, supra, to have retained the case and decided it; and its order remanding it to the county court, as shown by the record, was illegal and void. The county court, under this remanding order, was without jurisdiction to entertain and decide the cause, and all the proceedings in the said court,
The judgment of the circuit court rendered April 15, 1884, in so far as it remands the cause to the county court for further proceedings to be had therein, is erroneous, and for this error, and to this extent, the said judgment must be reversed and annulled; but we are of opinion that there is error in the judgment of the county court, and that the circuit court did not err in reversing the judgment of the county court, and ought to have rendered judgment for the appellee, defendant in the court below. The suit is an action of unlaivful detainer for the possession of a lot of land in the possession of the defendant, Eliza Cowherd, who claims to have bought it from F. J. Mahoney, for an agreed price, and to have been put in possession by Tiim many years ago, upon an agreement that, when he (Ma-honey) could and should make her a proper deed for the lot, she would pay the purchase money; and it is shown by the plaintiff himself that she held uninterrupted possession for over ten years. The plaintiff failed to prove that she had not unlawfully held possession of the lot for three years or more previous to the institution of his action; and he offered no evidence of a demand or notice for possession before bringing his suit. She was in possession, and had been, for over ten years, under a claim of purchase from the owner and vendor of the plaintiff; and even though she claimed only under a parol agreement, she was entitled to notice or demand for possession before action brought, even by the vendor, Mahoney, himself; and the plaintiff could not hold or assert greater rights than his vendor, Mahoney, in whose shoes he stood. Vide
In Williamson v. Paxton, supra, Moncure, P., says: "On who is put in possession upon an agreement for the punchase of land, cannot be ousted by ejectment, before iiis lawful possession is determined by demand of possession or otherwise; and the action of unlawful detainer f tr.flds on the same footing in this respect with the action of ejectment.” It was incumbent on the plaintiff in the action to show, and it is essential to the nature of the action, that the defendant had not unlawfully held posision for three years or more before the date of his summons; and as to this there is no evidence in the record of Pie trial in the county court. We are of opinion that the county court erred in refusing to dismiss the action, and that the judgment of the circuit court reversing the judgment of the county court is correct, and the same must be affirmed.
Judgment affirmed.