59 W. Va. 113 | W. Va. | 1906
Daniel R. Neal brought an action in ejectment in the circuit court of Wood county against A. H. McDougle counting in
Defendant’s first assignment of error is, that the plaintiff was allowed to prove a survey, made under an order of survey in the case, of the land covered by defendant’s deed. The plaintiff claimed that the deed under which the defendant claimed does not include the land in contest. The plaintiff introduced a deed for the sixty acres dated 1st February, 1867, from William Logan to Daniel R. Neal, under which the plaintiff claimed, but traced no title back to the state. On the strength of paper title, the plaintiff showed no title; for to recover on paper as jper se giving superior title, it must trace back to the state, unless the title of the contestants comes from a common grantor. Ronk v. Higginbotham, 54 W. Va. 137. No show to recovery by the plaintiff on paper title was made in this case. The plaintiff did not even give evidence of the boundaries of the Logan deed to show that it covers the land in controversy. If the plaintiff showed no title in himself, what matters it where the land embraced within the defendant’s deed lies? In ejectment the plaintiff must, if he claims under paper title, locate his exterior boundary, so as to show that his title takes in the disputed land. Miller v. Holt, 47 W. Va. 12. What matters it whether the defendant has title or not, if the plaintiff himself has no title? He must gain on the strength of his own title, not on the weakness of the defendant’s title. Lowe v. Settle, 32 W. Va. 600. Thus, it would seem that this evidence of the defendant’s location would be immaterial, and introduce a matter, and call on the defendant to meet it, not pertinent to the case, and calculated to hurt his defence before the jury. It could not locate the plaintiff’s land, as he had no title to locate. If it is said that to locate the defendant’s deed would locate the Logan deed, as the Logan deed calls for the “Neal and Stokely line”, the reply is, the Logan deed is not surveyed, and the deed to Beckwith does not call for the line.
A second assignment of error is, the admission of evidence of surveying a line between a tract owned by the city, known as the city hospital ground, and a tract of Sarah Neal. I do
A third assignment of error is, that plaintiff gave evidence to prove that defendant’s deed would not reach the disputed land, is well taken under principles stated above, that the plaintiff must show that his own right covered the land. And mere call for distance is not material when a fixed line is called for.
A fourth assignment of error is, the admission of a deed from Taylor, commissioner,' to Sanders, no authority to make it being shown, and no connection being shown between the title of one Davis, whose title the deed purports to convey, and the plaintiff. As passing title it was not admissible; but the plaintiff after giving that deed in evidence, gave in evidence a deed from said Sanders to William Logan, and a deed from Logan to the plaintiff. As color of title for adverse possession, I see no objection to the deed. Mullin v. Carper, 37 W. Va. 215.
A fifth assignment of error is, the admission in evidence of a deed from Sanders to Logan. It is admissible for color of title in connection with the deed from Logan to plaintiff. It is said the descriptions in the two deeds vary. If it were plain that they relate to different land, this would be a good objection; but that seems to me to be a question of identity as a fact for the jury; that is, whether it could give any color as to the land in contest. The fact that no surveying was don eto show the location of the land described in the deed only went to make it weak as affording color of title for the land.
The sixth assignment of error is, the admission in evidence of a deed from Lauck and Logan to Logan and Leach. It is not claimed that the plaintiff claimed the land in this deed, or had any privity with it, or that it bounded on the land conveyed to him by Logan. It was in no sense in controversy. It was irrelevant, producing confusion before the
The seventh assignment of error is, in the admission in evidence of a deed from Logan and Leach to Parkersburg. What has been said under the sixth assignment here applies.
The eighth assignment of error is, the admission in evidence of a decree of partition and plat of lands of Bradford’s estate. They were transactions between strangers to this suit, not involving the land in dispute. It is claimed that these papers are admissable, as Beckwith’s deed, under which defendant claims, calls for this Bradford land. That would tend to locate the land of defendant; but the plaintiff is suing, and must show where his land is, no matter where may be the defendant’s. Possibly, if the plaintiff had had his tract under the deed from Logan to him surveyed and proven, his right to go to a line the same as the line of Bradford, the call in Beckwith’s deed might be an admission of the location of Beckwith’s line; this is doubtful, because the defendant was not a party to the partition, so as to give it force to establish the true place of the Bradford line. Surely the action of parties to the partition of the Bradford land could not fix its bounds so as to bind Beckwith to a particular line as being the true place of that line called for in his deed. It is res inter alios acta. Action of one party does not bind strangers. But this Bradford land was not surveyed, but laid down by protraction. Where are its lines on the ground? I do not see that the Bradford land can locate the defendant’s land. Would that show that the defendant’s land is in a particular place? It is an effort, by the partition of other people’s land, not in controversy here, to show that the defendant does not own the land in controversy, without showing that the plaintiff owns it. This partition has no connection with this suit. ■
The ninth assignment of error is, the admission in evidence of a deed from Phelps to Bradford. What does it show shedding light on this case? It is between strangers to it.
The tenth assignment of error is, that witness McConnell was allowed for the plaintiff to prove that Crummitt and Leary, whom he saw cutting timber and sod and cultivating, told him they were doing so under Neal. They were on the ground when so stating. Declarations of one in possession explanatory of the character of his possession — that is, how he claimed, under whom, are admissible. They are part of the act of possession, part of res gestae. Cannot a tenant admit that he holds under a certain person ? High v. Pancake, 42 W. Va. 602; 24 Am. & Eng. Ency. L., (2d Ed.), 688-9-90; note to Marcy v. Stone, 54 Am. Dec. 74; Leger v. Doyle, 70 Id. 240.
The eleventh assignment of error involves principles important in the case. It is the giving of an instruction to the effect that if Logan, at the date of his deed to the plaintiff Neal, February 1, 1867, had been prior to that date, and claiming under the deed from Sanders to Logan, in actual possession for ten years of any part of the land in controversy in this suit, and the deed to Neal included the land in controversy, and the defendant during said period did not have actual possession of any portion of the land in controversy, then Logan acquired a good title to the land in controversy, and by his deed conveyed the same to Neal. Conceding, as the plaintiff must, and practically does, that he showed no title by documents, his claim is that his title became perfect under the statute of limitations. Let us suppose that Logan had, and by his deed conveyed to Neal, good title so acquired. As will appear from the report of the case of Beckwith v. Thompson, 18 W. Va. 103, in 1871 Beckwith brought an ejectment against Thompson and others to recover a tract of land of two hundred and twenty-five acres, which resulted in a verdict and judgment for Beck-with, affirmed by this Court 14th May, 1881. It was claimed in that suit by its defendants that the two surveys below mentioned did not adjoin on their first two lines, but that
I do not think this oblivion in this instruction of the judgment is cured by the instruction spoken of under the next assignment of error, which puts recovery by Beckwith from Neal in as an element of its hypothesis. This instruction is so strong in stating that Logan acquired title by possession before he conveyed to Neal, that it was calculated to confuse the jury and inspire belief that such title was still in Neal, and it would not be going very far to say that they conveyed inconsistent impressions. How any jury could avoid confusion amid so many instructions as were involved in the case, we cannot realize. Hence the need of clearness. This instruction, I repeat, is faulty in not incorporating the former judgment in its hypothesis. If that judgment cov
Defendant’s counsel says that the uncontradicted testimony shows that the old verdict found for Beckwith the land in controversy, and for this reason the instruction was improper. Just where the line fixed by the verdict is,is a question of fact, on which we cannot properly express an opinion, in view of a new trial. We say however, that if the verdict in the former case gave the land to Beckwith, that is an end to Neal’s claim to its date.
The twelfth assignment of ei'ror is, an instruction that if good title was conveyed to the land in controversy by Logan’s deed to Neal, the jury should find for the plaintiff, unless Beckwith thereafter, in a court of proper jurisdiction, recovered the land from Neal, and if such recovery was shown, the plaintiff could prove title to himself acquired after such recovery by adverse possession “under color claim of title ■other than that adjudicated in such suit, or otherwise.” It is not easy to say what the instruction means. The deed from Logan to Neal was in evidence in this case. It was not in the Beckwith-Thompson action. This instruction would say that the suit did not affect Neal’s title under the Logan deed, because not adjudicated. This would leave that deed to have force notwithstanding the former suit. So the jury might say. But that is not correct. That judgment wiped away all title of Neal acquired under his deed from Logan. The instruction sajrs that Neal could acquire title by possession “or otherwise.” How otherwise? Under the evidence there is no appearance of'claim except under the Logan deed or possession. It seems indefinite and misleading. And plaintiff could not go beyond the Neal-Stokely line, as his declaration only claims to it.
The thirteenth assignment of error is, that the court instructed that if Beckwith by said former suit recovered of Neal land adjoining the land described in the deed from Logan to Neal, 1st February, 1867, and after such recovery Beck-with had the lines between his lands so recovered and the land of Neal, ‘ ‘run and established as now claimed by the
This instruction, after conceding recovery by Beckwith in the former suit, whereby clear title would vest in him, and which would give certainty and remove all doubt as to the-line, says that mere agreement, acquiescence by Beckwith and possession by Neal would pass and transfer Beckwith’s, title fresh from victory. The law says that it takes a deed to pass land. If it is to be done by agreement on a line, there must be. doubt and uncertainty as to the true line. Here there was no doubt, no uncertainty. The old suit removed uncertainty and doubt. Doubt and uncertainty constitute the consideration for the agreement to stand on. Le Compte v. Freshwater, 56 W. Va. 326; 5 Cyc. 932; Turner v. Baker, 27 Am. R. 226. Therefore such agreement, if proven, would be void. And there must be controversy; and the agreement made as a compromise. These elements are omitted in the instruction. This instruction confuses right by mutual agreement upon a line, and right by adverse-possesession, two different things, as the one is friendly growing out of agreement, the other hostile relation unconnected with agreement. Whilst such agreement must be executed at once by actual possession to the line, ten years occupancy is not required — only time enough to show intent. Turner v. Baker, 27 Am. R. p. 235. Without such agreement Neal could get title by adverse possession, if proven, and of a character to be adverse possession, and of sufficient continuous duration. Perhaps the defendant could not complain of this confusion. This instruction is however intended to-say that such an agreement would do away with the effect of said verdict and judgment. It would not, if fully proven, for want of doubt and uncertainty as to the line. The-decisions say that the only reason why such agreement can hold as not violating the statute of frauds is, that it does not originate or create a line, but simply ascertains its place amid doubt and uncertainty. But it was fixed free from doubt and
The fourteenth assignment of error is, that the court instructed that if after judgment in said action of Beckwith v. Thompson, Heal was in actual possession by residence, inclosure, clearing, pasturing, sodding or cultivation of the land in controversy up to a line marked on the new plat, in this action under claim of title other than that adjudicated in said suit, the jury must find for the defendant. We do not say whether the evidence proves possession under Heal. There is great question whether any foot of the land in controversy was in such occupation by residence, inclosure, cultivation or clearing as to give title by limitation. . We do not decide in view of a new trial. I make such remark for this reason. The plaintiff gave evidence of occasional acts of cutting sod and timber and pasturing cows. How, as cutting sod and pasturing cows which wandered from the Beck-with tract across the line for want of a fence were in evidence, the jury might have concluded that such pasturing, cutting sod and timber, in and of themselves, were adverse possession, whereas they are not. Turpin v. Saunders, 32 Grat. 27. When there is otherwise actual occupation they may go along helping to show actual possession. The defendant claimed that there was no residence on this land, no clearing, no continuous inclosure, and that such inclosure as there was went down, the rails carried away and burnt, and the inclosure lost. In view of this, the instruction should
The sixteenth assignment of error is, that the court refused to give defendant an instruction that if the verdict and judgment in the former action gave Beckwith the land in controversy they were conclusive against the plaintiff. The court gave it, but with a modification, “unless the jury believe that the plaintiff is entitled to recovery under other and different title and rights under color or claim of title as hereinbefore set forth in instructions for plaintiff.” I think the instruction as offered was objectionable in not saying, unless Heal had, by possession since the judgment, got title; but how as to the modification? What are “the other and different title or rights under color or claim of title” on which plaintiff could recover? They are those specified in other instructions. Could a jury grope amid a maze of complicated instructions to get specification of such title or right? Is the Logan deed relied on for color ? Where does it go ? Surveying did not define it, and therefore possession of part under it would not be possession of the whole. As color is stopped at the old line as settled by the verdict, the declaration stops there also. Does it refer to right acquired by limitation? It imports possession, giving right to the whole, whereas the evidence of adverse possession, if any, presents the question of possession of part or all. I think the modification was vague and obscure.
The seventeenth assignment of error is, the, refusal of an instruction that if the verdict in the former action fixed the line D-E as the Neal-Stokely line, then that line defined the extent of the boundary specified in the plaintiff’s deed, and it did not constitute afterwards color of title to any land be
The nineteenth assignment of error is, the refusal of an instruction. The court struck out “inclosure”, substituted possession, so it read “actual possession. ” As stated above we see no error in this. It is above discussed.
The twentieth assignment of error is, the refusal of an instruction asked by defendant, that to justify the jury in inferring an oral agreement establishing an agreed line, in absence of evidence of an actual oral agreement, there must be clear evidence of acquiescence by the parties against whom it is claimed in the actual possession for ten years up to the well defined line, and in the continuous cultivation by the adjoining land owner for ten years up to the line, if the land is capable of cultivation, or if in woods, by the adjoining owner who established such line, with knowledge of the owner against whom it is claimed, always clearing up to the line, and with his knowledge cutting timber and permitting other acts of visible ownership for ten years up to such line, and that the period of ten years must have a definite beginning, and such acts must be continuous and uninterrupted for ten years. This instruction does hot refer to a line made by express agreement, but to a line claimed to be established by
The twenty-first assignment of error is, the rejection of evidence of Bailey tending to prove possession of Beckwith of his tract. It is stated that he .was “understood” to be a a grandson of Beckwith. It was not shown that his mother was dead. He might never be interested in his grandfather’s estate. He was only heir apparent. Nemo est haeres viventis.-And his evidence did not prove a personal transaction between him and his grandfather, even if that would exclude. But he was not giving evidence against Neal’s administrator of a personal transaction with Neal. Why not competent?
Judgment reversed.
Reversedi