77 W. Va. 728 | W. Va. | 1916
In September, 1899, a bill in chancery was filed in the circuit court of Boone County by the State of West Virginia against William Thompson and others, alleging that certain tracts of land therein described, situated in said' county, were forfeited to the State for non-payment of taxes due .thereon, and were liable to be sold for the benefit of the school fund. Among the parcels of land sought to be sold in that proceeding was a tract of 600 acres forfeited in the name of William Thompson. Julian M. Johnson, who was made a party to the suit by the name of James M. Johnson, claimed title to this tract. The Pocahontas Coal and Coke Company was, upon its petition, made a party to this cause, and answered the bill, also claiming title to the land and denied that it was forfeited. Such proceedings were had in said cause that a decree was entered therein on the 15th day of July, 1908, decreeing that said 600 acre tract was forfeited to the State and* liable to be sold for the benefit of the school fund, and that said Julian M. Johnson had the right to redeem the same, and that the Pocahontas Coal and Coke Company had no title to the land. From this decree an appeal was taken by the Pocahontas Coal and Coke Company to this court.
In September, 1901, another suit was commenced in the same court in the name of the State of West Virginia as plaintiff, against Ellen Workman and others as defendants, seeking to sell a tract of land containing 286 acres, as forfeited to the State for non-payment of taxes. Said tract of land is claimed by Ellen Workman, who answered the bill and denied that the same is forfeited. In October, 1903, the Pocahontas Coal and Coke Company was made a party. It filed an answer, claiming title to the 286 acres of land, and denied that the land was forfeited. Such proceedings were had in the- cause that by an order entered therein on the 9th day of June, 1914, it was decreed that the Pocahontas Coal and Coke Company had no title, that the said 286 acres of
Both these causes are now submitted for the determination of this court. Many questions of law and fact arising in these causes are common to both, and by agreement of counsel the two causes were argued together. By stipulations filed in this cause, we are permitted to read and consider much of the evidence filed in the Thompson case as far as applicable in deciding this cause, and by a like stipulation some of the testimony in this cause may be' used in evidence in the Thompson case.
The appellant, the Pocahontas Coal and Coke Company, claims title to the lands in controversy by virtue of a grant from the State of Virginia to Edward Dillon, dated April 16, 1796, for 50,096 acres. This tract was sold for non-payment of taxes, and bought by Anthony Lawson and Evermont Ward; and the title thus acquired passed by several conveyances, from the heirs of Dillon, and the grantees of Lawson and Ward, to the appellant, the Pocahontas Coal and Coke Company. There is no controversy in this proceeding as to the title of appellant to said 50,096 acres of the land known as the Dillon grant, except as to the two western lines, and the claims of Mrs. Workman, which will be hereafter noticed.
• The two lines in controversy are fully examined and described in the said cause of State v. Thompson and others, hereinbefore referred to as submitted to this court with this cause and considered with it. The true western boundary of said survey is'fixed and established in said cause, and reference is made to the same as part of this opinion, and the finding of the court in said cause as to said boundary lines is adopted as the finding of the court in this cause..
In addition to the carefully prepared and exhaustive opinion of the court in that cause, prepared by Judge Miller, we may add that the correctness of the conclusions reached by him
Then looking to the exterior lines of the Dillon survey, as thus located and established, we may proceed to enquire whether or not the circuit court erred in holding that the appellant has no interest in or title to the 286 acre tract.
The records do not make the location of the 286 acre tract quite clear. Mrs. Workman has no deed ■ or conveyance of any kind for a tract of 286 acres. She has a deed for 1500 acres of land, and it is claimed that this 286 tract is included in and is a part of the 1500 acre tract, but her deed states that Daniel Gunnoe and John Gunnoe, Jr. each has deeds for lands embraced in this boundary of 1500 acres. What part of the 1500 acres belongs to her, or either of the others, does not appear. So that it cannot be ascertained from that deed what or how much land she owns. In addition to this, the location of the 1500 acres is not proved with any certainty. Mrs. Workman was assessed for several years with four tracts of land, namely, a tract of 25 acres, a tract of 200 acres, a tract of. 75 acres, and another of 100 acres, but not with the 1500 acre's; nor was she ever assessed with a tract of 286 acres.
She was examined as a witness in her own behalf. She was asked how many tracts of land she owned on Pond Fork of Little Coal Run in Crook District, and how many acres. This is about where the land is supposed to be located. She answered that .she did not know how many acres she had until she “had it run out, and it was eleven hundred and sixty-one acres.” Again, in her cross-examination, she said: “Question.. Please state which of the tracts charged to you on the land books as 25 acres, 200 acres, 75 acres and 100 acres represents the 286 acres in controversy in this suit, or
M. A. Miller, in his deposition and a map filed with it, attempts to locate the Ellen Workman tract of 286 acres as claimed by her within the Dillon survey. This is the only effort to locate this tract, and it would be too uncertain to base a decree upon. But wherever her land may lie, she claims under the Rutter and Etting survey. The part of the land claimed by her as located by Miller, depends upon the location of the western boundary of the Dillon survey. We have located that line as hereinbefore stated. Mrs. Workman is not entitled to any of the land within the Dillon survey by reason of any title to any land which is part of the Rutter ánd Etting survey. It does not appear that she acquired-title to any of said land by any other title. The decree of the circuit court complained of, following the Miller survey, would give her title to that part of the 286 acres,located -within the Dillon survey as well as title to the lands outside of that survey. This is erroneous and prejudicial to appellant, and for that reason the decree will have .to be reversed.
The decree here will be that the decree of the circuit court be reversed, and that all the land within the boundary of the 286 acres which lies south of the line “C” “D” and within the Dillon survey, as surveyed by M. A. Miller, and as laid down on the maps or plats “M. A. M. No. 5” and the map “No. 1” filed with the deposition of J. E. Wagner, be dismissed out of this suit, and that the Pocahontas Coal -and
Reversed and remanded.