44 Del. 103 | Del. Super. Ct. | 1946
It is contended on behalf of the plaintiff that the defendant is not entitled to be heard on his reasons based upon the Court’s refusal to grant his motion for a non suit, because said motion for a non suit was not renewed before the close of the case in form of a motion for a directed verdict, relying upon Lewes Sand Co. v. Graves, 1 Terry 189, 8 A. 2d 21, and Emerson v. Universal Products Co., 6 W. W. Harr. 543, 546, 179 A. 383. I agree with the principle which these cases stand for, and if the refusal to grant defendant’s motion for non suit was the only reason relied upon by him in his motion for a new trial I might feel compelled to deny said motion. But where there is the additional reason for a new trial that the verdict was against the law, as in this case, I think the defendant is entitled to rely upon any ruling made by the Court throughout the trial upon the law governing the case.
There seems to be no dispute between the plaintiff and defendant as to the legal principle, that in order for the plaintiff to recover in an action of ejectment, he must prove his chain of title back to the sovereign, or trace it back to a common grantor or to some grantor in possession. 18 Am. Jur. 27; Florida Southern Ry. Co. v. Burt, 36 Fla. 497, 18 So. 581; Hicks v. Burgess, 185 Ala. 584, 64 So. 290; Daubenbiss v. White, 3 Cal. Unrep. Cas. 590, 31 P. 360; Priester v. Melton, 123 Ga. 375, 51 S. E. 330; Start v. Clegg, 83 Ind. 78; Gist v. Beaumont, 104 Ala. 347, 16 So. 20.
The principle that the plaintiff makes out a prima facie case by tracing his title back to the sovereign was recognized by this Court in the case of Wedderburn v. Burbage, 5 W. W. Harr. 229, 162 A. 515.
The plaintiff introduced in evidence a deed of bargain and sale from Robert C. Jones, widower, dated January 23,
The defendant admits that the plaintiff has the legal title to the land conveyed to him by Robert C. Jones, widower, but contends that it does not include the marsh land involved in this suit.
The defendant further contends that there was no evidence that the plaintiff or any of the persons under whom he claims ever had actual possession or occupancy of the particular piece of marsh land in dispute in this case.
The defendant introduced in evidence a deed of bargain and sale, dated July 29, 1920, from William Henry Draper and Effie Reed Draper, his wife, conveying to him the particular piece of marsh land in question together with a larger tract of land. He traced his title to the land by various deeds to those under whom he claims back for more than one hundred years,
A plot was introduced in evidence which the plaintiff and defendant agreed correctly showed the location of the particular piece of marsh land involved in dispute.
The defendant now takes the position that it is not sufficient for the plaintiff to prove his title to the land, by proving conveyances to him and those under whom he claims, but that he must prove in addition thereto acts of ownership exercised over the particular piece of marsh land in dispute. He claims that the plaintiff failed to do this.
. [5] In reply to this argument this plaintiff admits that where a plaintiff does not hold under a deed or other
This position of the plaintiff is recognized and supported by a great many authorities. Casselman v. Bialas, 112 Va. 57, 70 S. E. 479; Jones’ Hrs. v. Spradling et al., 9 Ky. Law Rep. 756, 7 S. W. 31; Ashton v. Ashton, 11 S. D. 610, 79 N. W. 1001; Carlisle v. Stitler, 1 Pen. & W. 6; Matthews v. Ward, 10 Gill & J. 443, 23 Md. Ct. of Appeals 287; Bouvier v. Baltimore & N. Y. Ry. Co., 65 N. J. L. 313, 47 A. 772; Cornelius v. Ivins, 26 N. J. L. 376; Fitzpatrick v. Garver, 253 Mo. 189, 161 S. W. 714; Deering v. Reilly, 38 App. Div. 164, 56 N. Y. S. 704; 167 N. Y. 184, 60 N. E. 447; Bright v. Stephens, 1 Houst. 31; Goodright v. Cator, 99 Eng. Repr. 304.
In the Pennsylvania case of Carlisle v. Stitler, supra, it was held that entry upon the land was not necessary in any case in Pennsylvania in order to enable the person who has title thereto to recover the possession. In the Maryland case of Matthews v. Ward, supra, the same rule is announced. The New Jersey cases of Bouvier v. Baltimore & N. Y. R. Co., supra and Cornelius v. Ivins, supra, support the principle that actual entry upon the land is not necessary to maintain an action of ejectment. In the Missouri case of Fitzpatrick v. Garver, supra, it was held that right of possession in the plaintiff was sufficient to support an action for the recovery of land. The New York case of Deering v. Reilly,, supra, followed the principle that the plaintiff having the legal title was presumed to be in possession.
The Delaware case of Bright v. Stephens, supra, is
In the English case of Goodright v. Cator, swpra, which was an action of ejectment brought to recover the possession of certain lands Lord Mansfield had the following to say: “We have looked very particularly into the 'Cases for two hundred years back, and we find a great deal of contrariety on the question, whether an.actual entry is necessary, in order to maintain an ejectment, on a clause of re-entry, for non-payment of rent: but, in the most distant period, the better opinion has been, that it is not. This was Lord Hale’s opinion, and is mentioned as such, and as that of Lord Chief Justice Scroggs, by Lord Holt, in the case of Little v. Heaton [1 An. N. Pr. 2 Ld. Rayn. 750]. But we look upon it as having been fully settled in 1703, by the opinion of all the Judges, upon deliberation, and consideration of all the cases, that actual entry * * *, is only neces
The Delaware case of Bright v. Stephens, supra, seems to be decisive of the question that where the plaintiff in an ejectment case establishes his title to the land by proving conveyances to him and those under whom he claims it is not necessary for him to prove actual possession of the particular piece of land in dispute. I realize that this case was decided a long time ago but I have not been able to find any decision since that time which holds to the contrary.
In the case of Pleasanton v. Simmons, 2 Penn. 477, 47 A. 697, 699, both the plaintiff and defendant claimed title under a deed- from Manlove Hayes, who was admitted to have had a good fee simple title to the premises when he conveyed the same by deed, but said deed was never recorded and at the time of the trial was shown to be lost or destroyed. In charging the jury Spruance, J., said: “that deed vested the legal title in some one, and, if you are able to determine from the evidence who that person was, it is immaterial whether all or any of the price or consideration money of said conveyance was paid or furnished by that person or by some one else”.
The plaintiff having proved the legal title to the land by deed from Robert C. Jones, widower, and traced his title by various other deeds to those under whom he claims and an assignment in the Orphans’ Court back to 1845, it was not necessary for him to prove actual possession of the particular piece of land in dispute.
The plaintiff introduced evidence to show that Robert Jones, Sr., who conveyed the land to him claimed title to the particular piece of land in dispute and had the same surveyed in the presence of the defendant, Joseph D. Short, in 1938, by two surveyors, Mr. Clarence Lank and Mr. Webster Warren. The following question was asked him in reference to the line established by these surveyors :• “It was about right with the edge of the shanty. After these two surveyors had put down the two stakes and the bush did you have any conversation with Mr. Short about that?” To which he made the following answer, “Well, Yes, sir; We were all talking about it. Mr. Short said if it wasn’t his he did not want it. He said ‘you come down’. We did not have stakes there, you see, this day; but put up only these two; we picked up two stakes there and then
The defendant Short admitted that he was present when the survey was made by Mr. Lank and Mr. Warren and practically admitted that he had the conversation which Mr. Jones testified to. But the defendant testified that he later wrote Mr. Jones that he was not satisfied with the line established by these surveyors and that he would have the lines surveyed by another surveyor and would inform Mr. Jones when said survey would be made. According to the testimony this proposed later survey was never made. The testimony above referred to shows that the plaintiff’s grantor, Robert Jones, claimed the particular piece of land in dispute as late as 1938 and that the defendant Short knew of said claim.
I have referred to this testimony and quoted therefrom
I can not agree that error was committed in failing to charge the jury, that a single instance of attempted interruption of adverse possession resulted in no actual interruption and followed by no attempt to test the right does not necessarily destroy its continuity. It would have to depend in every case on what the single instance of attempted interruption consisted of and what the exact results of said interruption were.
It must be conceded that the plaintiff must recover upon the strength of his own title and cannot rely upon the weakness of the defendant’s title. Pleasanton v. Simmons, 2 Penn. 477, 47 A. 697.
The case was well tried by counsel on each side and the facts in connection with the contentions of the parties were clearly presented to the jury.
After deliberation the jury rendered its verdict in favor of the plaintiff and I see no reason why that verdict should be disturbed.
Motion for a new trial denied.