| W. Va. | Nov 13, 1880
delivered the opinion of the Court:
The first question presented by this record is: Did the circuit court err in overruling the. defendant’s demurrer to the declaration, and to the first and second count therein ? We need not consider the third count; for the overruling of the demurrer thereto, if erroneous, was not prejudicial to the defendant, the plaintiff in error, as there was a verdict and judgment for him against the plaintiff on this third count.
The first objection urged to the first and second counts is, that the premises claimed are not described with convenient certainty, so that from such description possession thereof may be delivered; as required by section 8 of chapter 135 of Code of 1860. When this act was passed, at the revisal of 1849, the writ of right was abolished. The declaration in a writ of right always sets out the boundaries of the land demanded. See Rev. Code of 1819, volume 1 page 464; Beverley v. Fogg, 1 Call 421; Tuberville v. Long, 3 H. & M. 313. But in the action of ejectment prior to the Code of 1849, there was no regulation by statute how the land should be described in the declaration, and by the common law then existing it might be done in a general manner. See Barclay v. Howell’s Lessee, 6 Pet. 498" court="SCOTUS" date_filed="1832-03-12" href="https://app.midpage.ai/document/barclay-v-richard-w-howells-lessee-85796?utm_source=webapp" opinion_id="85796">6 Pet. 498. There was no necessity then to describe the land with such certainty in the declaration, that possession thereof might be delivered. Cottingham v. King, 1 Burr. 623, 630. If the sheriff put the plaintiff in possession of more land than he was entitled to, because of the vagueness of its description in the declaration, the court on motion awarded a writ of restitution, unless the plaintiff would elect to have a feigned issue to try the question, whether he had obtained possession.of more land than he was entitled to. This was at least the practice in England and in
In the revisal of 1849 in Virginia the Legislature inserted this section omitting the parts which we have ital-icised. The reason for this omission seems obvious. In a thickly settled State like New York the plaintiff could with entire convenience designate the number of the lot and state the names of the last occupants of lands adjoining the premises claimed or the other particulars set forth in the statute: but in Virginia, where there was much wild land, and where tracts of land in dispute were often very large, sometimes amounting to more than one hundred thousand acres, it would have been.often very inconvenient to the plaintiff to give the names of all the last occupants of the lands adjoining the tract in controversy, and his so doing would generally have been of no practical benefit to the defendant or to the sheriff in delivering possession of the land, as a survey made in the cause would supply all such information, and it could not be in such cases well supplied except by a survey. The omission of the italicised portions of this law of New York shows, that in this State and Virginia a less degree of minute accuracy in describing the land in the declaration in an ejectment suit was intended to be required. But even under the statutes of New York it was held, that the description of the premises in the declaration was sufficiently certain, when it was described as about fifty acres in the southern part of a specified lot. See John v. Northrup, 23 Barb. 25" court="N.Y. Sup. Ct." date_filed="1856-09-01" href="https://app.midpage.ai/document/st-john-v-northrup-5459109?utm_source=webapp" opinion_id="5459109">23 Barb. 25.
In Budd v. Bingham, 18 Barb. 498, the court held the description of the premises insufficient. It was in fact as understood by the court utterly unintelligible.
In Olendorf v. Cook, 1 Lan. 38, the court for the sake of the argument in the case conceded that the description of the premises in the declaration originally was insufficient, but held that the court below properly pei-mitted an amendment during the trial. The description of the premises in the declaration in that case failed to comply with the portion of the statute which we have itali-cised, and which was not incorporated in our Code.
In Hitchcox v. Rawson, 14 Gratt. 526, the declaration set out, that the plaintiff was possessed in fee simple of a tract of land in the county of Bitchie containing one thousand one hundred acres and bounded as follows, setting out the boundaries; and being so possessed thereof the defendant afterwards entered into said premises and withholds from the plaintiff the possession of “two hundred aeres in and adjacent to the waters of Hughes’s and Bunnell’s runs, it being a 'portion of the above mentioned tract of eleven hundred acres of land.” The court regarded the two hundred acres as the premises claimed and held, this description as too vague; as it certainly was. But I infer from the opinion of the court, that if the premises claimed had been the whole tract of one thousand one hundred acres, the description would have been regarded as sufficiently definite. In this opinion, -while the vagueness of the description of the two hundred acres is commented on, there is no intimation, that there was any indefiniteness as to the description of the whole tract.
In the case before us the premises claimed are in the first count said to adjoin what is known as the old William Postlewaite farm and to contain one hundred and fourteen acres; and its boundaries and abuttals are given in detail. In the second count these premises are described as in Monongalia county', and as the same tract, that was conveyed to the plaintiff by the heirs of William
Another objection is urged against these two counts. In neither of them is it alleged, that the defendant unlawfully withholds from the possession of the plaintiffs the premises claimed, which, it is claimed, is the very gist of the action. The language of these counts is : “That the said plaintiffs heretofore, to wit, on the first day of January, T864, were possessed of a tract of land (describing it,) the title to which they claim in fee simple; and being so possessed thereof the defendant afterwards, to wit, on the day and year aforesaid, entered upon the premises and ejected them from their said land and still holds them out of the possession thereof.” The supposed defect in these counts is in their failure to say that this holding them out of possession was unlawful. This failure would not prior to the Code of 1849, have made these counts fatally defective, as will appear from the forms of declarations used prior to that time. See Conway -Robinson’s Forms page 171. Has that Code made such omission fatal to a declaration in ejectment? The 7th section of chapter 135 of that Code (see edition of 1860, page 610) provides: “It shall be sufficient for the plaintiff to aver in his declaration, that on some day specified therein (and which shall be after the title accrued) he was possessed of the premises claimed, and being so possessed thereof, that the defendant afterwards, on some day to be stated, entered into such possession, and that he unlawfully withholds from .the plaintiff the possession thereof to his damage such sum as the plaintiff shall state.” The 5th section provides, that “the
The Supreme Court of the United States in Harvey v. Tyler, 2 Wall. 348, construed this fifth section in the Code of Virginia. They say : “The Code of Virginia, as well as several other States, allows the action of ejectment to be brought against persons claiming title or interest in the property, although not in possession. It says The person actually occupying the premises shall be named defendant in the declaration. If they be not occupied, the action must be against some person exercising ownership thereon, or claiming title thereto or some interest therein at the commencement of the suit.’ If then there is a part of the tract claimed by some person, on which there was no occupant, the case existed, which the second clause of the section provides for. The policy, of this act is obvious. It is, that persons out of possession, who-set up false claims to land, may by a suit in ejectment, which is the legal and proper mode of trying title, have that claim brought to this test. The act provides, that such a judgment is conclusive against all the parties; and thus the purpose of the law, to quiet title by a verdict and. judgment in such cases, is rendered effectual. The language of the Code of New York is identical with that of Virginia on this subject; and the construction we have given to it was held to be the true one by the Supreme Court oí the former State. See Bowyer v. Empie, 5 Hill 48.” See also Shaver v. McGraw, 12 Wend. 558" court="N.Y. Sup. Ct." date_filed="1834-10-15" href="https://app.midpage.ai/document/shaver-v-mgraw-5514393?utm_source=webapp" opinion_id="5514393">12 Wend. 558; Edwards v. Farmers’ Fire Insurance and Loan Co., 21 Wend. 467" court="N.Y. Sup. Ct." date_filed="1839-07-15" href="https://app.midpage.ai/document/edwards-vfarmers-fire-insurance--loan-co-5515347?utm_source=webapp" opinion_id="5515347">21 Wend. 467.
does not appear-from the case of Harvey v. Tylor,
The statute, section seven, does not say: “The plaintiff shall aver in his declaration ” the facts stated in the seventh section, when they are not the facts on which he relies to make out his case. It only says: “It shall be sufficient to aver these facts” named in this section. In other words, it confers on the plaintiff the privilege of proving his case as stated in the fifth section without his averring the facts stated in the fifth section in his declaration, and exempts him from proving the irrelevant facts stated in his general declaration. That the plaintiff need not allege the facts named in this seventh section, provided he alleges facts, which entitle him to recover by other sections of the act or by the commqn law, seems to me to have been settled by numerous de
So it has been held, that it is sufficient to allege in the declaration that the plaintiff owned the land in controversy, and that the defendant claimed to own the land in controversy, and that in such case it is not necessary to allege the fact stated in this seventh section, that the defendant unlawfully withholds the possession thereof from the plaintiff. See Bowyer v. Empie, 5 Hill 49.
The first section of chapter one hundred and thirty five of the Code of Virginia of 1860, page six hundred and nine provides, that the action of ejectment may be brought whenever it could be brought at common law; and these New York decisions show clearly, that the declaration need only to set out the facts, which .by their statute law or by the common law were sufficient to entitle the plaintiff to recover.
In Tabscott v. Cobbs et al., 11 Gratt. 172" court="Va." date_filed="1854-04-15" href="https://app.midpage.ai/document/tapscott-v-cobbs-8481478?utm_source=webapp" opinion_id="8481478">11 Gratt. 172, it was decided, that if a party in possession of land claiming title thereto is entered upon and ousted by another, the party entered upon may recover the land in ejectment, when the defendant has not title, though there be an outstanding better title in á third party; and this is in accord with the New York decisions.
In the case before us all the facts, which were necessary to allege or prove according to the Virginia decisions, are alleged in the first and second counts in the declaration. It is true, that they do not allege, that the
But it is urged, that though it was necessary to allege, that the defendant had no title, when he entered, and did not afterwards acquire a good title from the plaintiffs or any one else, yet the plaintiff ought at least to have alleged, that the defendant’s withholding the possession of the land from the plaintiffs was unlawful. Whether such withholding was lawful or unlawful is obviously a mere question of law. The allegation, that it was unlawful, is no statement of any fact, but a mere statement of a legal conclusion. If the facts stated in the declaration show, that the withholding of the possession from the plaintiff was lawful, the allegation of the plaintiff in his declaration, that it was unlawful, would be idle and would not make the declaration good. On the contrary, if the facts stated in the declaration, showed, that the withholding of the possession from the plaintiff ■was unlawful, it would be idle to so state, and it would not make the declaration any better than it would be, if such idle statement was omitted.
Justice Emott in the case of Ensign v. Sherman, 13 How. Pr. 37, in speaking of the insertion of this word “unlawful,” in an action of ejectment as qualifying the withholding from the plaintiff of the possession of the premises by the defendant says : “It has been repeatedly decided, that the allegations, that an act is ‘unlawful,’’ is not the statement of a fact, but of a conclusion of law. If there are no other facts stated, showing that the par
It is true, that the decision in this case, rendered at a special term by Justice Emott, was reversed at a general term, (See 14 How. Pr. 439" court="N.Y. Sup. Ct." date_filed="1857-04-15" href="https://app.midpage.ai/document/ensign-v-sherman-5468843?utm_source=webapp" opinion_id="5468843">14 How. Pr. 439); but it was reversed because Justice Emott held, that it was necessary for the declaration to state the facts set out in the first section above quoted, that is, to aver that, the plaintiff was in possession of the premises and the defendant had entered on the same and ejected the plaintiff, and that it was not sufficient to allege that the plaintiff had lawful title to the premises, and that the defendant was in possession of the same and unlawfully withholds the possession from the plaintiff. But while this case was properly reversed, yet what was said by Justice "Emott in reference to the use of this word “unlawful,” was sound and was not disapproved by the Supreme Court at the general session. On the contrary they say (See 14 How. Pr. 442): “The charge that the defendant unlawfully withholds the possession of the premises, is undoubtedly very general, and states a legal conclusion. It was sanctioned however by the revised statutes, and when coupled, as in this case, with the allegation that the plaintiff is the owner in fee simple, is sufficiently explicit. It states facts to which the. characteristic may well be applicable.” They add: “It would be impossible for the plaintiff to state particularly every way in which one
It seems to me therefore clear, that when the facts stated as in this declaration show, that the withholding of the possession was unlawful, it is unnecessary to allege such withholding to be unlawful according to any correct rule of pleading. And we have seen, that the mere fact, that the seventh section above referred to qualifies the withholding by the word unlawful, does not require of the pleader in every case to do so; for in some cases we have seen, it is not necessary to allege any withholding or any ejection of the plaintiff from the land. The fact is, that neither the ejection of the plaintiff by the defendant, nor his withholding the possession of the land unlawfully from the plaintiff, is now the gist of the action of ejectment. The only things absolutely essential for the plaintiff to show under the Code of 1860 is, that he is entitled to the possession of the land in controversy, and that the defendant either claims the land or else withholds it from him, and perhaps also that the plaintiff was, when the suit was commenced, not in possession of the land. This was so decided in Taglor v. Crane, et al. 15 How. Pr. 358" court="N.Y. Sup. Ct." date_filed="1858-02-15" href="https://app.midpage.ai/document/taylor-v-crane-5468936?utm_source=webapp" opinion_id="5468936">15 How. Pr. 358. I am therefore of opinion, that the circuit court did not err in overruling the demurrer in this case to the declaration, and to the first and second counts thereof.
The next error assigned and relied on by the of the plaintiff in error is, that the court improperly admitted in evidence copies of four deeds, which, it is insisted, were not legally recorded because of certain defects in their acknowledgment and authentication. Copies of these four deeds with the identical certificates of acknowledgment and authentication were offered in evidence by the plaintiffs on the first trial of this case, and were admitted to go before the jury as evidence, though objected to by the defendant; and this Court expressly decided, that the circuit court did not err in admitting them. See 3 W. Va. 455. These questions are
The next error of the circuit court assigned and relied on by the counsel of the plaintiff in error is, that the circuit court erred in not rendering a judgment in favor of the defendant, because the plaintiffs had by omitting to have this tract of land placed on the commissioners’ books forfeited the land to the State under the act of February 27, 1835, and those, under whom the defendants claimed, acquired the State’s title by obtaining a patent for the land in 1856. Unquestionably the plaintiffs can not maintain their action, if this land was forfeited to the State under this act. See Usher’s heirs v. Pride, 15 Gratt. 190" court="Va." date_filed="1858-08-23" href="https://app.midpage.ai/document/ushers-heirs-v-pride-8481639?utm_source=webapp" opinion_id="8481639">15 Gratt. 190. The only question then is: "Were these lands forfeited under this act? Instating the case we have said, that in our opinion these lands had been omitted from the commissioners’ books for a much longer time than by that act was necessary to work a forfeiture of them to the State, and such forfeiture did occur, unless it was prevented by the latter clause of the second section of the act of February 27,1835. See Session Acts of 1834-35, page 12. This section provides, that such lands may be entered on the books of the commissioners of revenue before July 1, 1836, but “upon failure so to do all such lands or pai'cels thereof not now (February 27, 1835), in the actual possession of such owner or proprietor by himself or his tenant in possession shall become forfeited to the commonwealth after July 1, 1836.” This land was not so entered and was forfeited, unless it was on February 27, 1835, in the actual possession of the parties, under whom the plaintiffs claim.
The evidence on this question has been carefully examined and considered. It would extend this opinion to an unreasonable length to state this evidence, as it occupies some seventy pages of the printed record. It must suffice therefore to say, that there was evidence offered by the plaintiffs, which taken by itself would not only have justified but required the court to hold, that the land was in the actual possession of the plaintiffs below on February 27, 1835. For it was proven, that the persons, under whom the plaintiffs below claimed, were in the actual possession of the land till one Bar-richman took possession of the land; and some of the evidence of the plaintiffs taken by itself certainly showed, that Barrichman did not take any sort of possession till after February 27, 1835. But it is insisted by the counsel of the defendant, the plaintiff in error, that this evidence of some of the' plaintiffs’ witnesses is in conflict with what he assumes to be undisputed facts. But the difficulty is that some of these facts, which are assumed to be undisputed, are not so clear and unquestionable. On the contrary, some of them are in conflict with some of the plaintiffs’ testimony. Again, if these facts so assumed were really undisputed, they would
There was on the question, when Barrichman was in possession, nothing but parol evidence, the memory of witnesses after a lapse of more than thirty years; and their evidence was confused and conflicting. The only written evidence in the case throwing any light on this point was the deed- of this land to Barrichman’s brother, which, unfortunately for the defendant below, bore date September 26, 1836. If this was the real date of Barrich-man’s purchase of this land, it would prove the case of the plaintiffs below. This deed, Barrichman says, was not made till some three years after his purchase of the land; but this statement is in conflict with some of the plaintiffs’ evidence as to the date of this purchase. There was, 1 think, evidence which fairly tended to prove?
The next ground of error assigned and relied on by the plaintiff in error is, that on this declaration, which claimed the whole of this tract, a verdict and judgment could not properly have been rendered for six undivided seventh parts thereof, even if the evidence had shown the plaintiffs entitled to that portion. This is based upon the provision in the Code of 1849, which says/that “ when the plaintiff claims an undivided share or interest, he shall state the same.” See §9, ch. 135 of Code of 1860, p. 610. But the same Code of 1849 provides, “that if the verdict be for an undivided share or interest in the premises claimed, it shall specify the same.” See §26, ch. 135 of Code of 1860. The plaintiffs in this case claimed the whole of this tract of land; and therefore so set out their claim properly in the declaration ; but having proved title to only six sevenths thereof, the jury under this twenty-sixth section properly rendered a judgment accordingly. See Callis v. Kemp, 11 Gratt. 78" court="Va." date_filed="1854-05-09" href="https://app.midpage.ai/document/callis-v-kemp-7668398?utm_source=webapp" opinion_id="7668398">11 Gratt. 78. This case was decided on May 9th, 1854; and as the Code of 1849 is not referred to, it may be that it arose before the passage of the Code, as is contended by the plaintiff in error. If this be so, it does not determine what was the law upon this point, whereas in the case at bar the suit was brought after the passage of this Code. But the provisions of this Code on this subject are identical with the statutes of New York, and were taken from them by the revisors (see Rev. Stat. of N. Y., vol 3, ch. 5, §§ 9, 23, pp. 573-574); and it has been settled in New York, that under their statute, when the plaintiff claims the whole of a tract of land, he may prove
Again it is urged, that the court below erred in rendering a judgment for the plaintiffs, because the land was not identified sufficiently by the evidence. I have examined the evidence, and think that the land was sufficiently identified to justify the verdict and the judgment.
Again it is claimed, that it' was error to render any & * % J judgment for damages, as none were claimed in the first and second counts, on which alone the plaintiffs did or could recover. The damages claimed at the end of the declaration applied to each of the counts. It is both unusual and unnecessary to insert the claim for damages at the end of each count; damages for all the causes of action in the several counts may bo claimed at the end of the declaration. That this was intended to be done, and was done in this case, appears from the face of the declaration, and as notice of this claim was subjoined to the declaration, as required by law, and as the verdict and judgment were sustained by the evidence, the circuit court did not err in this respect.
It is further assigned as an error, that the court erred in not rendering a judgment against the plaintiffs in the third count for costs. If such error existed, it would be no ground for reversing the judgment; but in fact no such error exists, as judgment was rendered against the plaintiffs in the third count for his costs incurred by' reason of their having been made parties plaintiff in the case, and these arc all the costs which the defendant was entitled to recover.
These arc all the errors assigned by the defendant below in his petition ; but in the argument of the case another error is relied on, which we have a right to assume was not called to the attention of the court below, and which has only been noticed by the counsel of the plain-
The parol testimony shows the heirship of Ruth Pos-tlewaite and her daughter, Malinda Clayton, and that for a number of years before the institution of the suit Ruth Postlewaite and Mrs. Clayton were dead; but it fails to show when they died, or that they were dead before June 10,1856, the date of this deed, under which the plaintiffs claim. Is the failure of proof supplied by any documentary evidence in the case ? With reference to Ruth Postlewaite it does supply this defect of proof. This deed itself was signed not only by Malinda Clayton, but by her uncle, Jarvis Postlewaite, and his wife, Elizabeth Postlewaite, by her aunt, Deborah Critten, by
It might be urged, that while this original deed by its recitals might prove the death of Ruth Postlewaite, and' that it occurred before the execution of this deed, it could not be proved by a copy of this deed taken from the office in which it was recorded. This proposition I am not prepared to admit. In the case of Jackson v. Cooley, 8 Johns. 127, the death was proven by the production of a certified copy. But if this proposition was true, we cannot say, that the original deed was not produced and proved in this case. The original deed was before the court, not a certified copy, on the first trial of the case, as appears in 3 W. Va. 455. On the last trial the demurrer to the evidence in reference to the deed simply says in reciting the evidence before the jury: “ The deed of Postlewaite, Sr.’s heirs to Jarvis and Albert, 10th of June, 1856, one hundred and fourteen acres (for said deed see it inserted in the original printed record, pages thirty five, thirty six and thirty seven).” This refers to the printed record when the case was formerly before this Court, and the deed referred to is the original deed, not a certified copy. I am therefore of opinion, that the circuit court on the demurrer to the evidence was justified in inferring that Ruth Postlewaite died prior fb June 10, 1856.
I am therefore of opinion, that there was no error committed by the circuit court in this case, and that it must be affirmed, and that the defendants in error, Jarvis Postlewaite and Albert Postlewaite, must recover of the plaintiff in error, John A. Wise, their costs, expended in this court, and damages according to law.
Judgment affirmed.