48 W. Va. 196 | W. Va. | 1900
Henry S. Wilson brought an action of ejectment in Ritchie County circuit court against George W. Braden and John Deem resulting in a judgment for defendants.
Wilson claimed under a patent to Tilton, dated August 4, 1785. Braden and Deem defended under a patent to Dorsey Pentecost, Samuel Purviance and Robert Purviance, dated 15th October, 1784, and two patents dated 1st September, 1860, to Purviance. and Williams, as trustees for the estates of Robert and Samuel Purviance, and under possession.
In order to connect with the older patent of 1784 Braden gave in evidence a certain record of proceedings in'the circuit court of Baltimore, Maryland. It showed a petition appearing to be an application in 1787 by Samuel Purviance for discharge as an insolvent upon surrender of his estate. It is purely,ear parte,
Braden’s instruction Ho. 5 was improper, as given in this case, because it puts as an element in its theory that the Pur-viances entered into actual possession unuer the patent of 1784, when no evidence showed that fact. It is also wrong in stating that Braden’s possession would be referred back to that patent, when no evidence connected him with it.
Braden’s instruction Ho. 7 is bad. It says that even if plaintiff had possession until 1879 or 1883, yet if thereafter Braden had adverse possession, the jury must find for Braden. How, plaintiff claimed that under the evidence such possession as
Deem’s instruction Ho. 8 is bad. It says that in ejectment involving title to land, the plaintiff must recover on the strength of his own title, not on the weakness of his adversary’s title, and that the “defendant may defeat plaintiff by even showing
Deem introduced a deed from Dilworth to himself, and followed this up with other documents to show that Deem conveyed the land to Clammer, and Clammer conveyed to Hester Deem, wife of defendant John Deem, and that she conveyed to Mary C. Braden. Tim effort was to show that the title was outstanding in Mary C. Braden, or that John Deem had no longer any title at the commencement of the action. The deed from Hester A. Deem is void, because the husband did not join in it, and this left the title in her, and presumably she and her husband were living on the land, he, the head of the family, in possession; but I do not mention this as very material. If Deem expected to defend because his title had before suit been passed awajq he could not do so, if in possession at the beginning of the suit; for the Code allows the person in possession to be sued. He represents his own title or that of another under whom he claims, for the purposes of the suit. He is occupant detaining against the supposed rightful title, and as between him and its claimant he may be sued, and, if in the wrong, ejected. In view of this defense by Deem, Wilson asked the court, which refused, to instruct that Deem having employed counsel and defended the action, and given evidence that he was occupying and farming part of the land in controversy, it was no defense for him to show that before the suit he had conveyed the land away. It was error to refuse that instruction, for reasons above stated. Also, if Deem did not want to defend, why did he not enter a disclaimer? Why not surrender? As stated by Judge GeeeN in Beckwith v. Thompson, 18 W. Va. 135, if he claimed no interest, a verdict against him would take nothing from him but costs. He did not disclaim, but made full defense, and being in possession, he could not defend on the score that he had parted with title before suit.
Deenrs instruction No. 9, telling the jury that possession under the deed from Dilworth to Deem for the statute period would call for a verdict for Deem, is bad in not saying that such possession under the Dilworth deed must be within the interlock, if Wilson was in possession of any part of his land, be
Deem’s instruction No. 10 is open to the same objection. These instructions do not have regard to that land in controversy, the interlock.
Deem’s instruction 12 is bad. It says that if Dilworth, who conveyed to Deem the land claimed by Deem, by deed dated 1st November, 1872, had possession for more than ten years before the time when the vendors of Wilson commenced operations of mining on their land, and that if Deem and his vendees had possession after 1st November, 1872, then no act of vendors of Wilson could put plaintiff in possession of the land. Very indefinite. What does it mean? It is error to give-an instruction that may not readily be understood by the jury. It bewilders, may mislead. Dilworth had actual possession, say; the subsequent operations of Wilson’s vendors, it'is said, could not put Wilson’s vendors in possession of the land in controversy. That depends. It was a question whether the Dilworth deed covered any of the land of the plaintiff. If it did not, the instruction would not be proper. There would be then no clash, and the possession of Dilworth and Wilson’s vendors would have no bearing on each other. This instruction assumes or predicates its law upon the theory that the land of Wilson and that of Dilworth interlock. An instruction must not assume a controverted fact, and give a legal result therefrom. If the tracts do interlock, the instruction puts bad law. If Dilworth had first actual possession outside of the interlock, the Wilson title appearing older, Dilworth’s possession would not include the interlock; but if Dilworth had actual possession inside the interlock, then possession by Wilson’s vendors taken afterwards, or any time, not inside the interlock, would not displace Dilworth’s possession in it. The instruction should have stated that if Dilworth’s land covered any part of the land in controversy, and if his possession was inside the interlock, then the operations of Wilson’s vendors would not change the right of Dilworth, or put plaintiff’s vendors in possession of the land in controversy. If Dilworth did not have actual possession inside the interlock, then, when the owners of the Wilson title took possession, it gave them actual possession of that interlock, their title being senior. If the junior claimant has actual
Deem’s instruction No. 13, touching the effect of.the conveyance by Deem of the land before suit, is bad for reasons above given. These conveyances, being younger, could show no outstanding superior title. It was error to admit those deeds. They had nothing to do with the case.
I see no objection to the other instructions.
Another point of error made by Wilson’s counsel is this: Wilson sued for a boundary of two thousand five hundred acres. Braden claimed only fifty acres, Deem two hundred and thirty-six acres. The verdict was general for the defendants, not specifying the parts which the defendants claimed, nor saving to the plaintiff any part of the two thousand five hundred acres. Wilson says there was no pretense, even, that he hid not own the balance of the boundary, and that his claim was good to such balance, and that in any view the verdict should have specified the particular land the defendants were entitled to, and what he was entitled to. Is this error? Wo think it is, and that because of this defect the judgment should have been arrested, and a new trial granted. No proper judgment could be given on such a verdict. ' Wilson suing for two thousand five hundred acres, and the defendants not claiming all of it, but parts, should have disclaimed to all the land in the -declaration described, except those parts. That would have reduced the controversy to those parts. They did not do this, but pleaded not guilty as to all. This plea admits that the party making it is in possession of all the land sued for. 7 Ency. Pl. & Prac. 341-342, citing Ulsh v. Strode, 13 Pa. St. 433; Hill v. Hill, 43 Id.
Therefore, we reverse the judgment, set aside the verdict, and grant the plaintiff a new trial.
Reversed.