91 Va. 226 | Va. | 1895
This is a writ of error to a judgment of the Circuit Court of Patrick county in an action of ejectment in which the plaintiff in error was the plaintiff in that court.
Upon the trial of the cause, numerous questions were raised, and five bills of exceptions were taken by the plaintiff, all of which are made grounds of assignment of error here.
The plaintiff, in making out his claim of title, had placed in evidence a grant from the Commonwealth for 70,000 acres of land to Gen. Henry Lee, assignee of John Miller, for whom the land had been surveyed on the 14th day of April, 1795. In order to recover in the cause, it was, of course, necessary for him to identify the land sued for,, which it was claimed lay near the northern boundary line of the 70,000-acre grant.
To these rulings of the court the first and second bills of exceptions were taken by the plaintiff. As they involve, to some extent, the same questions of law, they will'be considered together.
In a controversy concerning the location or boundary of a tract of land patented by the Commonwealth, pursuant to a survey, the calls and descriptions of another survey made by the same surveyor, about the same time or recently thereafter, of a coterminous or neighboring tract, upon which last-mentioned survey the Commonwealth issued a grant, whether to a party to the controversy or to a stranger, is proper evidence upon such' question of location or boundary, unless clearly irrelevant. Overton v. Davisson, 1 Gratt. 212, 222; Clements v. Kyles, 13 Gratt. 475, 479. All of these surveys were made by the same surveyor. Upon the McGruder survey and the McLean survey grants were issued by the Commonwealth. The McGruder survey is dated a few years before,
The Miller survey, however, does not possess all the characteristics required for the admissibility of such evidence. It is true that it was made by the same surveyor, dated the same day with the McLean survey, but no grant was ever issued by the Commonwealth upon it. It is not the survey upon which the Lee grant issued. That grant was issued upon a survey filed in the land office of the Commonwealth; and, while there ought to have been found on the surveyor’s book a survey identical with that upon which the grant was issued, the one upon the surveyor’s book, and offered in evidence, is not such. It is claimed, however, that, while it is true the calls of the survey in the surveyor’s book are not identical with the calls of the Lee grant, the corners, courses and distances of the northern boundary line of the Lee grant are the same in both papers, and that the only difference between the survey and grant along that line is that the survey in the surveyor’s book gives a fuller description of the corners and lines called for. This difference will be better understood by giving the calls of each along the northern boundary of the grant. The calls of the grant are as follows: “Beginning at a poplar and persimmon on the north side of Big Dan river; thence new line IY, 23 degrees E., 1,280 poles, to a chestnut tree; 1Y, 40 E., 500 poles, to a black walnut tree; 1Y, 40 E., 1,600 poles, to a black walnut tree and hickory near a path. ’ ’ The description of that line in the surveyor’s book is: “Beginning at James Goins corner poplar and persimmon, on the north side of Big
If this additional description in the surveyor’s book be treated as a part of the description of the land embraced within the Lee grant, and there be any conflict between them, which is to control in the location of the land ? The description in the grant or the description in the surveyor’s book? In running the first line from the beginning, the call of the grant is “N., 23 degrees E., 1,280 poles, to a-chestnut.” Ought the surveyor to stop at the end of the 1,280 poles, the distance called for, or ought he to run to the McGruder corner on top of the mountain, as called for in the survey on the surveyor’s book, without regard to the course or distance ? The general rule is that course and distance must yield to other calls, especially to natural objects like the top of a mountain or a corner tree. If that be the correct rule for locating the Lee grant, it will be located, not by its own calls, but by the calls of the survey on the surveyor’s books; and in so locating it the calls and description of the grant may be disregarded, and its location determined by the descriptions in another instrument, which is no part of the grant, and upon which it is not based. Taking the grant without the surveyor’s book, course and distance would govern if no corner tree was found. For what purpose, then, was the surveyor’s book introduced in evidence ? It was to control and counteract the legitimate construction of the grant, and cause the jury to believe that the northern boundary of the Lee grant adjoined McLean’s survey, ran to the top of the mountain, and cornered on McGruder’s
It is not to be understood by what I have said that the defendants did not have the right to prove that the Lee grant did adjoin the McLean survey, did corner on McGruder’s chestnut corner, on the top of the mountain, and was bounded as stated in the survey on the surveyor’s book. Evidence aliunde is admissible in all cases where there is a doubt as to the true location of the survey, or a question as to the application of a grant to its proper subject-matter. It is not a question of construction, but of location. It is a question of fact, to be determined by the jury by the aid of extrinsic evidence. But in such a case the hearsay declarations of the surveyor, whether oral or written, who made the survey upon which the grant was issued by the Commonwealth, will not be allowed to go to the jury to contradict his survey which was made while acting in his official capacity and under oath. I think that the court properly admitted m evidence the McGruder and McLean surveys, but erred in admitting the Miller survey on the county surveyor’s book.
The next assignment of error, and based upon the third bill of exceptions, is that the deed of A. Staples, clerk, to Abram Staples and J. M. Redd, ought to have been excluded from the jury. This deed was made in 1835, and purported to be a tax deed for 5,000 acres of land, known as the “Ander
The grounds upon which the plaintiff claims that the deed should have been excluded from the jury are that it was a tax deed, and that no authority for the sale and conveyance was shown; that it was not made to the purchaser at the tax sale; and that the defendants did not connect themselves with it.
There was no objection made to the deed when it was offered in evidence, but the plaintiff gave notice to the defendants that, unless they connected themselves with it, he would move the court to exclude it. There was no proof that the deed was made in pursuance of authority, or that the party styling himself clerk was in fact clerk. The clerk, in making such deed, was, exercising a mere naked power, not coupled with an interest. In such case the law requires that every prerequisite to the exercise of such power should precede it; and, as the validity of the act done depends upon the official character of the agent, that character must be proved, and his own recital in the deed is no evidence of the fact. In. the absence of such proof, the deed was clearly insufficient to show that the title of the delinquent tax-payer had passed to the' grantees in the deed. It was, however, sufficient, notwithstanding these and other defects, to show color of title, and upon which to base a claim of adversary possession; for it is immaterial whether an adversary possession under a claim or color of title be under a good or bad, a legal or equitable title. Shanks v. Lancaster, 5 Gratt. 110, 120; Hutch. Land Tit., sec. 392, and cases cited. See Jones v. Lemon, 26 W. Va. 636. As there was some evidence in the cause tending to show that the defendants were in possession of the land in controversy, claiming under it, the court did not err in refusing to withdraw the deed from the jury.
I will consider the instructions objected to in the order in which they are discussed in the plaintiff’s petition and note of argument.
He contends that defendants’ instruction Ho. 3 ought not to have been given. That instruction is as follows: “The court instructs the jury that, in questions of boundary, natural objects called for, marked lines and reputed boundaries, well established, should be preferred in ascertaining the identity of a tract of land to the courses and distances of the calls of the grant. ’ ’ The objection to the instruction is not that it does not state the law correctly, but that it assumes facts which were not in evidence. There was some admissible evidence in the cause tending to prove the facts upon which the court based its instruction. It was therefore proper for the court to give the instruction as requested.
The plaintiff insists that it was error in the court to give the defendants’ instruction Ho. 8, and to refuse to give his instruction Ho. 14. The object of these instructions was to inform the jury what constituted adversary possession under color of title, and the length of time it must be so held to ripen into good title. The defendants’ instruction stated the law upon that subject clearly and correctly, while the plaintiff’s instruction contained a statement which is not, I think, the law in civil cases, viz.,"that, where the relation of landlord and tenant had once existed, the tenant could not be considered as holding adversely to his landlord until notice of that fact had been brought home to the landlord, by evidence “so convincing as to preclude all doubt as to the fact of notice on the part of the landlord. ” The relation of landlord and
The next assignment of error is that the court refused to give the plaintiff’s instruction ETo. 9, which is as follows:
“The court instructs the jury that the statements or decía-, rations of certain persons who are dead may be used as tending to locate a corner of an old survey, but, the persons who made the declaration must be such as had peculiar means of knowing the fact of which they speak, such as the surveyor or chain carrier who were engaged upon the original survey, or other persons present at such original survey, or the owner of the tract or of an adjoining tract calling for the same boundaries; the declarations of tenants, processioners, and others whose duty or interest would lead them to diligent inquiry and accurate information of the fact, always excluding those declarations which are liable to suspicion of bias from interest, and those made after the controversy arose, and those in contradiction of the original surveyor’s official report of such survey. Such evidence, subject to the above exceptions, is admitted to have such weight as the jury may, under all the circumstances, consider it entitled to.”
It is true that a surveyor’s declarations are not admissible in evidence to contradict his own report, but it is not true
If there were any declarations in evidence in the cause liable to suspicion of bias from interest, as the instruction intimates, which the jury ought not to have considered, or ought to have considered only under certain circumstances, they ought to have been specially called to the attention of the court, so that it could have instructed the jury how to consider such evidence. The court, therefore, properly refused to give the instruction.
The plaintiff claims that instruction marked “B,” given by the court of its own motion, is erroneous.
The original grant under which the plaintiff claimed was issued, as above stated, to Gen. Henry Lee in 1795. The plaintiff claimed that Gen. Lee had sold and conveyed 50,000 acres, of the 70,000 granted to him, to one J. J.’Maund in the year 1798, and that Mauud had sold and conveyed the same land to one John Soley in the year 1799; that these deeds were recorded in the office of the General Court in Richmond, and the records thereof burned in the year 1865. The paintiff laid the foundation for proving the execution and delivery of those deeds by secondary evidence by proving that search had been made for the originals, and that the récords of the General Court had been destroyed. He then offered in evidence a copy of an incomplete record of a chancery suit from the clerk’s office of the Circuit Court of Williamsburg. That suit was brought by Henry Banks against Maund and
The next assignment of error is that the court erred in making an addition to plaintiff’s instruction Ro. 7. The instruction, as asked for by the plaintiff, was in these words: “That the opinion or supposition or verbal declaration of Purvis as to where his true corner or lines were, cannot estop those claiming under him from claiming to the true boundaries of the Lee grant.” To this instruction the court added: “Yet the jury may consider any such declaration as evidence tending to show what was the true boundary of that patent. ’ ’ There was evidence in the cause tending to show that Purvis,
The next assignment of error is that the court ought not to have made the addition it did to plaintiff’s instruction No. 12. That instruction stated to the jury that, where there is a conflict between the calls of a patent and the calls of the survey from the county surveyor’s book, the calls in the patent must prevail. The addition made by the court was that, if “the patent is silent as to natural objects, ‘corner trees, or other matters of description mentioned in the survey, the jury may consider the survey as evidence tending to identify the true boundary of the land embraced in the patent. ’ ’ This instruction was based upon the fact that the survey of the Lee grant, as claimed by the defendants, and found upon the county surveyor’s book, was in evidence; but as that survey was improperly admitted in evidence, and will not be before the jury upon the next trial, the instruction in question would not be applicable to the facts of the case. That being so, it is unnecessary to discuss the question whether, upon the evidence in the case, the instruction, without or with the addition made by the court, was correct or incorrect.
The next assignment of error is that the court erred in refusing to give plaintiff’s instruction No. 1, which is as follows:
The instruction, I think, correctly states the law that an outstanding title, sufficient to defeat a recovery in an action of ejectment, must be a present, subsisting, and operative legal title, upon which the owner could recover if asserting it by action. 3 Wait, Act & Def. 109, 110; 6 Am. & Eng. Enc. Law, 245; Wilcher v. Robertson, 78 Va. 602, 620. But the other branch of the instruction is, I think, erroneous. There is no reason why a defendant in an action of ejectment should not be permitted to rely upon an outstanding legal title in the Commonwealth. The plaintiff must rely upon the strength of 'his own title, and if it appear in the cause that the legal title is in another, whether that other be the defendant, the Commonwealth, or some other person, it shows that the plaintiff has not the legal title, and it is therefore sufficient to defeat his recovery. If it appears in the cause that the title to a tract of land granted by the Commonwealth has been forfeited to it for the non-payment of taxes or other cause, and there is no evidence that it has been redeemed by the owner or resold or regranted by the Commonwealth, there is no presumption that such title has been extinguished in favor of a claimant who shows long possession. On the contrary, the presumption is that the title is still outstanding in the Commonwealth. The statute of Limitations never runs against the Commonwealth, unless there be an express provision in the
The plaintiff, in making out his claim of title, offered to read in evidence a copy of a writing purporting to be a deed from John M. Bussell, of Cambridge, Mass., to Henry O. Middleton, of Fredericksburg, Va., dated July 27, in the year 1838, for the conveyance of the. 50,000 acres of land herein-before referred to. The defendants objected to it, but the court overruled the objection, and -■ permitted it to be read to the jury; and afterwards, upon motion of the defendants, gave the jury this instruction:
“The court instructs the jury that the paper purporting to be a deed of conveyance from J. Miller Bussell to H. O. Middleton, dated July 27, 1838, offered in evidence by the
The plaintiff objected to the instruction, and excepted to the action of the court in giving it. The correctness of this instruction depends upon the fact whether or not the original paper, a copy of which was read in evidence, was under seal. If it was under seal, it operated to convey all the title of the grantor, for it possessed all the other requisites of a good deed. The copy of the paper does not disclose anything, by way of trace, scroll, or device, to show that the original was sealed. There is, howe\ er, a recognition of the seal in the body of the instrument, in this language: “In witness whereof, the said John Miller Russell hath hereunto set his hand and seal,” the day and year aforesaid. There are two attesting witnesses, and they declare that the alleged deed was “signed, sealed, and delivered in their presence.” The certificate of the two justices who took the acknowledgment states that the grantor acknowledged “the same to be his act and deed. ’ ’ The clerk of the supreme judicial court of Massachusetts certifies that the persons who took the acknowledgment were Justices of the Peace “at the time of taking the acknowledgment of the grantor in the above deed. ’ ’ The clerk of the County Court of Patrick county, who admitted the paper to record on the 25th day of January, in the year 1840, certifies that “this deed, from John Miller Russell to Henry.O. Middle
The precise point here presented has not been decided in this State, and none of the Yirginia decisions referred to by counsel have any direct bearing upon the subject. It is said by text-writers that -at common law, even though no impression appear upon the parchment or paper, still, if the instrument purports to be a deed, and on proper stamps, and be stated in the attestation of the “witnesses to have been duly sealed and delivered, it will, in the absence of proof to the contrary, and especially if it be an ancient instrument, be presumed to have been sealed. Tayl. Ev. sec. 149 (Old Ed. sec. 128); 1 Sugd. Powers, 282, 283; 1 Phil. Ev. side p. 610, note. Such seems to be the rule in England and in those States where the common-law rule remains unchanged. In the case of Parks v. Hewlett, 9 Leigh, 511, 517, 518, Judge Parker quotes with approval the rule as above stated. Mr. Sugden, he says, upon the authority of Lord Eldon, states the doctrine to be as follows: “If, in the attestation of an in
In the absence of other facts, I do not think such a paper as Judge Parker describes could be held in this State to be a sealed instrument. If however, an original instrument, more than fifty years old, was offered in evidence, and was a good deed in form and substance, except that it lacked the wax, wafer, scroll, or other mark of a seal upon it, purported to convey land, recognized the seal in the body of the instrument, was attested by witnesses who declared that it was signed, sealed, and delivered in their presence, was acknowledged as a deed before the officers taking the acknowledgment, was stated by the clerk (who certified to the official character of the officers who took the acknowledgment) to be the acknowledgment of a deed, Avas admitted to record as a deed, the land conveyed by it at once transferred on the land books for the purposes of taxation from the vendor to the vendee (which could not be legally done unless it was a conveyance of the land—chapter 183, sec. 30, Eev. Code 1819), Avith evidence tending to show the payment of taxes thereon, acts of ownership exercised over and possession taken of part of the land, I think the question Avhether or not it had been properly sealed before its delivery, clearly, ought to be submitted to the jury. And if, under such circumstances, it Avould be proper to submit the question to the jury Avhere the original is offered in evidence, is there any good reason, Avhen the original is lost, and a copy offered in evidence, under the same circumstances, why the question of sealing should not also be submitted to the jury ? I find but little discussion of the subject, and the views presented are not in accord. Some of the cases hold that, since it Avas the duty of the clerk recording such instrument to have made a true copy of it on his records, the pre
In the case of Williams v. Bass, 22 Vt. 352, “the plaintiff, to prove his title to land, offered in evidence an office copy of a deed in his chain of title, which contained no appearance on its. face that the original was sealed by the grantor, and it did not appear that possession had ever been taken of the land under the deed. It was held in that case that such copy was not competent evidence. The antiquity alone of the deed, apparently defective, was not sufficient to justify the presumption of its due execution, neither could such presumption be raised from the fact that the deed was acknowledged and recorded, the record showing only an imperfect deed.” But the court said: “Had the deed of French [the grantor] been followed by possession, it would seem, from the authorities, there could be no doubt but that the presumption of its due execution would be fully warranted. * * * Neither the grantor, French, nor those claiming under him, were ever in the actual possession of the land, nor is there any evidence in the case upon which to base the presumption that the deed contained a seal but its antiquity; and this, we think, the current of authority upon the subject will hardly justify.” The deed referred to in that case was dated in 1795, and the trial of the case was in 1849.
There is another class of cases, which hold that the presumption that the original was sealed is more just and natural where the original instrument is lost, and resort is had to secondary evidence of its contents. Mr. Justice Field in the
The weight of authority, meagre as it is, and the better
I think, therefore, that instruction erroneous, and that the court ought to have submitted the question whether or not the original instrument was sealed to the jury, with the instruction that, if they believed from the evidence in the cause that it was sealed, then its effect was to convey, not only the equitable, but all, the title of the grantor, Russell, to the grantee, Middleton, in the 50,000-acre tract of land.
The plaintiff moved the trial court to set aside the verdict, and grant him a new trial, on the ground that it was contrary to the law and the evidence, and because of erroneous rulings of the court during the progress of the trial; and the refusal of the court to sustain his motion is assigned as a ground of error.
As hereinbefore shown, the court erred in admitting certain evidence, and in giving and refusing certain instructions; and for such errors the verdict will have to be set aside, and a new trial ordered, unless it be true, as defendants insist, that these errors did not prejudice the plaintiff, and that a verdict in his favor could not have been rendered by the jury, or sustained by the court, upon the case as made by the plaintiff, even if no improper evidence had been admitted, and no error committed in giving or refusing instructions.
The defendants base this contention upon the ground that the grant under which the plaintiff claims contains an exception of 7,000 acres of land, the title to which never passed to the plaintiff, and that prior claimants under the Lee grant had
It does appear from the land book and certain deeds introduced by the plaintiff that small portions of the Lee grant had been aliened by those under whom the plaintiff claims, but this fact does not appear from the papers introduced by him to make out his chain of title, but only from other papers introduced for a different purpose. The facts as to the aliened lands, therefore, do not sustain the defendants’ contention, but it does appear from the plaintiff’s chain of title that 7,000 acres of land were excepted from the boundary embraced within the Lee grant, under which plaintiff claims. That grant contains the following exception or reservation: “But it is always to be understood that the survey upon which this grant is founded includes 7,000 acres (exclusive of the above quantity of 70,000 acres), all of which having a preference by law to the warrant and right upon which this grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants, and this grant shall be no bar in law or equity to the confirmation of the title or titles to the same as before mentioned and reserved, with its appurtenances, to have and to hold the said tract or parcel of land, with its appurtenances, to the said Henry Lee (except as before excepted) and his heirs, forever. ’ ’ The plaintiff insists that the decision of this court in the case of Hopkins v. Ward,
PTo title having passed, therefore, by the Lee grant to the 7,000 acres excepted, the plaintiff would not be entitled to recover the land in controversy if it lies within the excepted lands. But upon whom is the burden of proof to show the
One of the rules of pleading is that where there is an exception incorporated in the general clause, whether it be in a statute or in a private contract, unless that exception in such general clause be negatived in pleading the clause, no offense or cause of action will appear in the indictment or declaration when compared with the statute or the contract; but, when the exception or provision is in a subsequent substantive clause, the case contemplated in the enacting or general clause may be fully stated, without negativing the exception or proviso, as a prima facie case is stated; and it is for the party who relies upon the matter of excuse or defense furnished by the statute or contract to bring it forward in his defense. U. S. v. Cook, 17 Wall. 168-173; Land Grant Co. v. Dawson, 151 U. S. 586-604. This is not always a rule of pleading, but is somelimes a rule of evidence. Land Grant Co. v. Damson, supra; Osborn v. Lovell, 36 Mich. 246-250 (Judge Cooley).
As Ihe pleadings in an action of ejectment in this State are very general, neither party setting out or referring to his title papers, it would seem that the party whose duty it would have been to set out such general clause together with the
Again, .the plaintiff, in an action of ejectment, recovers only upon the strength of his own title, and he must show that he has the legal title to and the right to the possession of the land in controversy. He must always, in the first instance, make out a clear and substantial possessory title to the particular land in controversy (2 Greenl. Ev., secs. 303-304; Adams, Ej., p. 319; Land Grant Co. v. Dawson, 151 U. S., at page 604); for possession is slw&ys prima,faeie evidence of title, and the party in possession cannot b.e deprived of his possession by any person but the rightful owner, who has the right to the possession (2 Greenl. Ev., sec. 331), except in certain cases, which do not affect the question now under discussion.
The plaintiff avers that the defendants are unlawfully withholding his land from him. The title paper upon which he relies shows that there are 7,000 acres of land within the exterior boundaries of his grant which he does net cwn. If he locates the exterior boundaries, and connects himself with tbe Commonwealth’s title, and does not show that the land in bentroversy is not within the excepted 7,000 acres, hoAV can the jury say that the defendants are unlawfully withholding his land ? Has he proved that the land in controversy is his land ? How can the jury say that the defendants are not on the excepted land unless it be shown where the excepted land lies ? The jury have no right to presume, because the
It is said that to require the plaintiff to assume such a burden imposes upon him a great hardship, if not an impossible task. If it does, it was self-imposed. He, or those under whom he claims, took the grant with the exception in it. There would have been little difficulty in locating the excepted lands and the grantee’s own land when the grant issued. The facts upon which the exception depends were within the knowledge of the plaintiff, or those under whom he claims. If he, or those under whom he claims, have delayed ascertaining the boundaries of these excepted lands and the boundaries of his own land until the means of doing so have been lessened or lost, he cannot complain, as it is the result of his or their negligence. At least, well-settled rules of law ought not to be departed from in order that a party in possession of land may be deprived of that possession by another who does not show that he has the legal title to or the right to the possession of it.
At an early day this question came before the Supreme Court of Kentucky in the case of Guthrie v. Lewis, 1 T. B. Mon. 142, and that court held that where plaintiff derives title under a deed conveying the whole tract patented, except parcels thereof before conveyed to persons named, it is incumbent on him, not on the defendant who claims adversely to the patent, to show that the land in controversy is not embraced within the exception.
Judge Sydner, in delivering the opinion of the court in Bryan v. Willard, 21 W. Va. 65, intimates that in such a case the burden of proof would be upon the plaintiff to show that the land in controversy was not within the excepted lands, though this expression of opinion was not necessary to the decision of the case. Afterwards the question came before that court in the case of Stockton v. Morriss, 39 W. Va. 432. The exception in the grant in' that case designated the claimants of a portion of the land excepted and its location, but as to 985 acres thereof the exception was, as in the case at bar, made up of prior claims, without designating who the claimants were, or where the land was located. The coart held that the burden of locating the excepted claims was upon the plaintiff, in order to make out a prima facie case for recovery. 39 W. Va. 432. In Scott v. Ratliffe, 5 Pet. 81-86, the Supreme Court of the United States (Chief Justice Marshall delivering the opinion) held an -instruction to be correct which directed the jury “that if the plaintiffs did not show to their satisfaction that the defendants resided within the plaintiffs’ grant, and outside of the land excepted in the grant for Preston and Garrard, th ey ought to find for the defendants. ’ ’ See Hawkins v. Barney, 5 Pet. 457.
In the case of Land Grant Co. v. Dawson, decided by that court at its last term, and reported in 151 U. S. 586, the plaintiff claimed under a deed which covered a large tract of land as a whole. The deed contained the following exception: “Excepting from the operation of this conveyance such
It would seem, therefore, both upon principle and upon authority, that where the exterior boundaries of a survey upon which a grant or deed is founded include lands which have been excepted from the operation of the grant, cr lands which have been aliened since the grant was issued, and which have been excepted from the operation of the deed, and the plaintiff’s title papers disclose such exception or such alienation, it is not sufficient for such plaintiff, in an action of ejectment, to connect himself with the Commonwealth, and show the exterior boundaries of his grant, but he must also prove that the lands in controversy are not within the excepted or aliened lands, in order to make out a case which will entitle bim to recover in an action of ejectment. The plaintiff, having failed to show that the land sued for was a part of the land granted by the State to Gen. Lee, was not entitled to recover on the ground that he was the legal owner of the Commonwealth’s title; and the court properly overruled his motion to set aside the verdict, on the ground that it was contrary to the law and the evidence.
Rut the plaintiff, in his efforts to make out his case, did not rely solely upon the claim that he had traced his title from the Ccmmonwealth to the land in controversy. He introduced proof tending to show that he and those under whom
Hpon these questions, it is not clear that the evidence improperly admitted and the instructions erroneously refused and erroneously given may not have influenced the jury to the prejudice of the plaintiff. Since it is not manifest that no injury was done the plaintiff by such erroneous rulings, the verdict cannot be sustained, under the settled practice of this court. Bank v. Waddill, 27 Gratt. 448-451; Brighthope Railway Co. v. Rogers, 76 Va. 443-451; Kinoheloe v. Tracewells, 11 Gratt. 588, 589.
I am of opinion, therefore, that the judgment of the Circuit Court of Patrick county should be reversed, the verdict set aside, and a new trial ordered to be had, in accordance with the views expressed in this opinion.
The other judges concur in the opinion of Buchanan, J.
Reversed.