93 Va. 374 | Va. | 1896
delivered the opinion of the court.
The plaintiff brought an action of ejectment in the Circuit Court of Buchanan county to recover two tracts of land, one containing 1,400, and the other 1,600, acres. Upon the trial of the cause there was a verdict for the plaintiff in the following words: “We, the jury, find for the plaintiff the land in controversy in an estate in fee simple, except the land the defendant has fenced up, and the land conveyed to the defendant by B. W. Compton and Mary A., his wife." Upon motion of the defendant the verdict was set aside, and a new trial awarded.
Upon the second trial the defendant, without introducing any evidence, demurred to the plaintiff’s evidence, the court sustained the demurrer, and gave judgment for the defendant.
The action of the court in setting aside the verdict upon the first trial, and in rendering judgment for the defendant upon the demurrer to the evidence upon the second trial is assigned as error here.
Where a verdict is for a part only of the land sued for, the boundaries of the part recovered should he designated. The verdict must be certain in itself, or must refer to some certain standard by which to ascertain the land so found, otherwise it will be too uncertain to warrant a judgment upon it. Callis v. Kemp, 11 Gratt. 84; Gregory v. Jackson, 6 Munf. 25.
The verdict upon the first trial was plainly insufficient, and the court did not err in setting it aside.
The plaintiff, in making out her title, did not introduce in evidence, or rely upon a grant from the Commonwealth, hut endeavored to show that she had acquired the Commonwealth’s title by acts done, and proceedings had under section 41, of chapter 108 of the Code of 1873, as amended by chapter 214 of the Acts of Assembly 1879-80, p. 205. That section is as follows:
No location of any land office warrant upon any land which shall have been settled continuously for five years previously, upon which taxes shall have been paid at any time within the said five years by the person having settled the same, or any person claiming under him, shall be valid; and any title which the Commonwealth shall have to such land shall be hereby relinquished to the person in possession of the land claiming the same under such settlement and payment to the extent of the boundary line enclosing the same; provided said boundary line shall not include more than fifteen hundred acres, and every person so in possession, so claiming, may have such land surveyed, and before the court of the county where such land, or any part thereof lies, prove such settlement for such time and such payment; whereupon such court shall order the plat and certificate of such survey to be recorded. Thereafter the said record shall be conclusive evidence in any controversy between the claimant thereunder and any person claiming under a location of the said land made after such order. This act shall relate as well to land forfeited for the nonpayment of taxes, or the failure to have the same entered on the commissioner’s books, or both these causes, and to land escheated or escheatable, and to waste and unappropriated land.”
She also introduced in evidence a deed for the land in controversy, executed to her on the 26th day of May, 1883, by Baldwin and Beavers, the parties who had instituted the “ court right ” proceedings. After putting in evidence some other papers, not material to the question under consideration, she proved by Baldwin, one of her vendors, and her only witness, “ that he [was] one of the grantors in the deed to Mary E. Slocum; that the land described in the entry made in the name of Gr. W. Rife, and assigned by Rife to
The evidence of the plaintiff not only failed to show that she was entitled to recover the land in controversy, but clearly showed that she had no such right. She did not bring herself, or those under whom she claims, within the provisions of the statute upon which she relied to show that she had acquired the Commonwealth’s title, or had the right to recover the land from the defendant. The object of the statute was to protect actual settlers upon the lands of the Commonwealth which were subject to entry, and those in possession of such lands claiming under them. It was never intended that persons should under its provisions acquire title to her lands without paying anything therefor, except where they had been actually settled, as required by the statute, and were in the possession of the original settlers* or those claiming under them, when proceedings were had
It appears clearly by her own evidence that her vendors, Baldwin and Beavers, were not in possession of the land when they instituted the “court right” proceedings under which they and she claimed. This being true, the proceedings were without authority of law, and conferred no rights upon the parties claiming under them.
The judgment of the court upon the demurrer to the evidence is right, and must be affirmed.
Affirmed.