60 W. Va. 239 | W. Va. | 1906
A. D. Beavers and wife owned a tract of 255 acres of land on Clear Fork of Tug River in McDowell county. On the 26th day of March, 1877, they conveyed by deed to Martha J. Barnett the western end of said tract containing 5 acres upon which Barnett built a mill, after which the tract so conveyed was known as the “ Barnett Mill Tract. ” On the 20th of August, 1896, by deed of that date Beavers and his wife conveyed the remainder of said tract of 255 acres to T. A. Lambert. On the 29th of November. 1901, T. A. Lambert, by contract in writing, agreed to sell the said residue of the tract and to convey the same with covenants of general warranty “to William J. Brown or whomsoever he may designate.” In said agreement it was provided: “The titles to the property are to be passed on by the attorney of the purchasers by Eeby. 1, 1902, and said purchasers are to have the right to survey the land, which survey is to be completed six months from Jany. 1st, 1902, and I am to have the right to have a representative with the surveyor.
The said Wm. J. Brown or the purchasers to be designated, by him shall have the privilege at any time to anticipate the deferred payments.” The said agreement described the land as “ containing 250 acres more or less at the price of $25 per acre and an additional sum of five hundred dollars for the improvements,” then provides for the terms of payment.
Under this contract the Virginia-Pocahontas Coal Company, being the party to whom said Brown directed the land to be conveyed, caused • the same to be surveyed and upon such survey the tract was found to contain 208.03 acres. The attorney for the Virginia-Pocahontas Coal Company took the description made by the surveyor and prepared a
On the 10th day of August, 1903, the said B. F. Williams sued out of the circuit court of McDowell county his summons in unlawful entry and detainer against the Virginia-Pocahontas Coal Company and Richard Collins to recover the possession of said tract of 1.54 acres of land. On the 17th day of September, 1903, “on motion of the plaintiff by counsel the summons or declaration and notice in this case is docketed,” and upon motion of the plaintiff an order of survey was made requiring W. T. Tabor the surveyor of McDowell county, to go upon the land in controversy and do such surveying as might be desired by any of' the parties to the action and make report to the next term of court, giving the parties ten days notice of the time when he would execute the order. On the 28th of December, 1903, the defendants appeared and entered their plea of not guilty and a jury was impanneled to try the issue. After the plaintiff had introduced all his evidence in chief and rested his case the defendants moved to strike out the evidence and direct the jury to return a verdict in favor of the defendants, of which motion the court took time until a future day of the term to consider. On the 3lst day of December the court overruled the motion to strike out the evidence and to direct a verdict for the defendants and the jury having heard all the evidence and the argument of counsel found for the plaintiff the possession of the land in controversy and $500 damages for the detention thereof. The defendants moved
In the course of the trial the defendants took three several bills of exceptions numbered 1, 2, and 3 respectively, which were signed, sealed and made a part of the record in the case. The defendants obtained from one of the judges of this Court a writ of error and supersedeas. The first bill of exceptions certifies and contains all the evidence adduced in the case of both parties. It is conceded that the purpose and intention of the contract of sale made by Lambert to William J. Brown was to sell and convey all the land then owned in said tract by T. A. Lambert and which was then occupied by said Lambert, but in running the lines of the survey by S. M. Taylor, the surveyor of the defendant, the line ‘ ‘N 49 45 W 931 feet to a stake at or near two spruce pines on the foot of the hill corner of the mill tract” stopped short of the corner of the mill tract by several hundred feet. It is contended by defendants that the corner of the mill tract being called for governs and should be made the point called for notwithstanding the corner marked and designated by .the surveyor, in other words it controls rather than the •courses and distance. It is true Lambert was with the surveyor and said that he thought that thej^ had gone far enough to reach the corner of the mill tract. - Lambert testifies that before the execution of the deed which was presented to him by the defendant’s attorney to be executed he gave him notice and also told Mr. Taylor the surveyor that the description made by the surveyor and contained in the deed did not include all the land; that he notified them that the 1.54 acres of land was omitted from their survey and was not contained in the 'deed and states that Taylor, the defendant’s surveyor, ‘ ‘ made a plat, or what
The testimony of Lambert concerning his notifying, before the execution of the deed, the attorney and agent, Mr. blurt, and Mr. Taylor, the surveyor, of the defendant of the fact that the deed as presented to him did not include the 1.54 acres in controversy, is not unequivocally denied by the parties notified in their testimony; and Aaron Collier, a witness for the defendant and to whom Lambert surrendered possession of the property after the company purchased, on cross-examination admits that he told Hurt that Mr. Taylor told him there was a discrepancy in the land and he told Taylor to see Hurt and tell him there was a discrepancy in the deed and that Taylor thought it might some day give trouble, that it had better be arranged and that this was before Lambert executed the deed, strongly tending to corroborate Lambert that he had called attention to the fact that the deed did not include the land in controversy. It appears and seems to be conceded that the land at the time of the sale was worth about $25 per acre, so that in reply to the statement of counsel that Lambert never would have thought of claiming that he had not sold the land in controversy to defendant “ had not the value of the land in controversy mounted from twenty-five dollars per acre to two thousand dollars per acre in the brief period from October to April. That placed enough at stake to justify Lambert in taking long chances on a law suit against his vendee” it might with equal propriety be said on the other hand that the land being of such trifling value at $25 per acre, when defendant was notified that ljá acres were excluded from the deed, it was not considered of sufficient importance to take up the matter and correct it before its execution and defendant was satis
In Johnson v. Archibald, 78 Tex. 96, 22 Am. St. 27, it is held: “The survey is actually made may always be shown by any legal evidence, when in fact the lines were run upon the ground.” And “Whenever the evidence is sufficient to induce the belief that the mistake in a survey is in the call for a natural or artificial object, and not in the call for course and distance, the. latter will prevail, and the former will be disregarded. ” And further: “The declaration of
If certain tracts of land called for by a junior survey were surveyed by course and distance when the junior survey was made, then the grant on such junior survey passed no other land than was included by such survey.” In 4 Am. & E. E. L. 786, it is said: “Courses and distances control incidental calls for monuments, except where there is a clear intention shown to make such calls locative; and they also control indefinite and conflicting calls for monuments. They govern where surrounding circumstances show them to be more reliable, or where such is the intention of the parties, or where monuments are called for by conjecture and not by actually running out the lines upon the ground according to rule. Some times a fixed and visible monument is controlled by course and distance. ” And authorities there cited. And further at page 787 Id.: “Calls for supposed lines or for lines and corners of adjoining surveys which were not in fact established at the date of the deed which calls for them, or at the time that the adjoining or prior survey was made, are controlled by the courses and distances given in the deed.” In Bragg v. Lockhart, 11 Tex. 159, it is held: “ Where lands are partitioned and the lines are actually run and marked on the ground, the courses and distances corresponding with the marked lines, will control a call for the corner of another survey, particularly where the corner of such other survey is not well established and marked on the ground; and subsequent purchasers will be bound by the actual survey, particularly where the lines are again run out, at such subsequent purchase.’’
There is no question in case at bar that a mistake was made in fixing the corner at the two spruce pines and calling
It is also claimed that the court erred in overruling defendant’s objection to the question in chief propounded to Lambert in which he was asked whether the Virginia-Pocahontas Coal Company had paid him for the 1.54 acres, his answer being “No sir.” Because it is claimed that the same is wholly immaterial, the question involved being whether or not that land was conveyed in the deed. The question was perhaps immaterial but I am unable to see in what manner it could prejudice the case of defendant, it was a certainty that it had not been paid for under the deed. The sale was by the acre and the deed called for a fixed amount 208.03 acres. Mr. Hurt, the agent, attorney and witness of defendant, was asked by the defendant why the company had not paid for the land in controversy and he answered, “Because he wouldn’t accept it.” This was objected to by plaintiff and objection sustained after the answer was made. It would seem that the ruling of the court was more favorable to the defendant than to the plaintiff, that the answer of the witness tended to prove the reason the plaintiff had for- not
It is contended that the court erred in allowing the map and report of W. T. Tabor, surveyor, to be introduced in evidence to the jury. This map and report were made in response to the order of survey made-in the case showing the lines and boundaries of the land in question. This is an official report made by a surveyor of the court after giving due notice to the parties as required by the order of survey,, no exception was taken to said report, the introduction of it in evidence was simply objected to by the defendant and such objection was overruled by the court. No exceptions being taken to the report the court did not err in overruling the objection to its introduction as evidence.
Defendants say that the court erred in permitting witness Tabor, surveyor who made the report, to testify that the land in controversy was not included in the deed to defendant company. This witness had, under the order of the court in this case, surveyed the land here in controversy and knew where the corner was made by the defendant’s surveyor at the two spruce pines and knew that according to the lines and corners of that survey marked on the ground it was impossible that the 1.54 acres here in controversy could be included in the tract of 208.03 acres conveyed by Lambert to defendant company, and it is not disputed that if the two spruce pines called for by- the deed is the true corner and not the corner of the Mill tract that the deed for 208.03 acres does not contain the land here in controversy.
It is said the court erred in refusing to strike out the evidence of plaintiff on defendant’s motion. When the plaintiff had introduced all his evidence in chief defendant moved to exclude the plaintiff’s evidence from consideration of the jury and instruct the jury to find a verdict in favor of the defendant, which motion was overruled. In the trial of a case when the evidence of the plaintiff is sufficient to sustain a verdict, if rendered for the plaintiff, the court will not sustain a motion to exclude the plaintiff’s evidence from the jury.
It is further contended that the court erred in not permitting defendant’s witness Hurt, who was the agent and attor
The defendant says that the court erred in refusing to give instructions Nos. 1 and 2 asked for by the defendant. These instructions asked the court to tell the jury that the land described in the deed from Lambert to the Virginia-Pocahontas Coal Company extends to and runs with the lines of the Barnett mill tract, and if the jury believe from the evidence that the land in controversy was a part of said tract of land then they must find for the defendant. This, of course, asks the court to construe the deed in accordance with the theory of the defendant, but the facts have been shown that the actual survey made by the defendant upon the ground failed by mistake to reach the Mill tract and the surveyor and the vendor Lambert who was with him supposing they had reached the Mill tract marked a corner which lacked more than five hundred feet of extending to the Mill tract. The agent and attorney of the defendant prepared the deed and presented it to Lambert to be executed some time after the surveying was done, and in the meantime Lambert had discovered the mistake that had been made and informed the defendant that the description as contained in the deed did not include all the land that he owned there and had agreed in his contract with Brown to sell. The defendant chose to accept the deed excluding a small portion of the land and which is that in controversy here, only paying for that which it got under the deed fixing the corner at the two spruce pines so fixed by its surveyor and Lambert, and having so accepted the deed with notice of the mistake it is estopped from claiming lands which are not included within the
For the reasons herein given the court did not err in refusing to set aside the verdict of the jury and grant the defendants a new trial, and the judgment-of the court must be affirmed.
Affirmed.