65 W. Va. 632 | W. Va. | 1909
W. T. Taylor brought an action of ejectment in Tyler county against Frances Russell to recover a lot of land in the town of Sistersville. The case was tried by the court on agreed facts, and the court gave judgment for the defendant, and Tajdor sued out a writ of error.
Taylor showed no right but a right under an agreement selling him the lot, and stipulating for a future conveyance of the legal title on payment of deferred purchase money, which agreement was made with Josephine B. Stone and others. He showed no legal, but only an equitable, title. That fact alone bars Taylor from recovery, because it is a settled rule in this state, and in Virginia, that a plaintiff in ejectment must have legal title. Ho matter whether he claims for years or life or in fee, it is a hard and fast general rule, except under special circumstances, that he must have legal title; a mere equity will not
This lot was sold under decree and purchased by Thorn, and ■by him taken possession of, and he conveyed to Frances Russell and she went into actual possession. The decrees of sale and confirmation were reversed. Counsel say that makes "void the title under the judicial sale. Suppose for argument that that title no longer exists. That is immaterial here, because the plaintiff has not shown title to recover in ejectment, and no matter what the title of the defendant, she is in actual possession, and it is a fixed rule that the right of plaintiff to recover rests upon the sufficiency of his own title, and not upon the weakness of the defendant’s title. Witten v. St. Clair, 27 W. Va. 762.
It will not do for the defendant’s counsel to sustain this action upon such cases as that just cited and Tapscot v. Cobb, 11 Grat. 182. They say that when one in possession actual is entered -upon and ousted by a mere intruder or trespasser, who has no color of title or authority to enter, the party ousted may recover in ejectment on mere possession. That doctrine don’t apply. There is no evidence that Taylor was ousted by an intruder. When Thorn entered he entered under a deed made under judicial sale, not yet affected by reversal. Entered peaceably. There is no evidence that he physically ousted or intruded upon the possession of Taylor. Taylor was not then in actual possession. The principle just stated applies only where there is one in actual possession intruded upon wrongfully by one having no shadow of title. It does not apply to parties having competitive rights or title, where the question is which is the better title. The Witten case and the Supervisor’s case, supra, repel this claim to recover.
Affirmed. '