56 W. Va. 372 | W. Va. | 1904
Lead Opinion
Henry S. Wilson, plaintiff, obtained a writ of error from a judgment of the circuit court of Ritchie county in a suit in ejectment in favor of George Braden and Hester Deem, awarding them title to two certain tracts of land claimed by the plaintiff.
The case was here before, 48 W. Va. 196, and a judgment for the same defendants was reversed and a new trial awarded. A new trial being had, the plaintiff having proved his title, and possession thereunder and the defendants having set up possession under color of title for more than ten years, the plaintiff demurred to the evidence in which the defendants-joined. On a conditional verdict the court found for the defendants, and gave judgment accordingly. It is now well established that on a demurrer to the evidence, the court will consider the whole evidence as though on a verdict in favor of the demurrees, and will not 'reverse the judgment unless the evidence is insufficient to sustain the same. Bowman v. Dewing and Sons, 60 W. Va. 446; Lewis v. C. & O. R. R. Co., 47 W. Va. 656.
The first question that arises on demurrer is as to whether the plaintiff has made his title clear, either by a complete chain from the Commonwealth of Virginia, or by possession under color of title for the statutory period. If he has not done one or both of these, his demurrer was properly overruled. The plaintiff traces his title back to the commonwealth of Virginia through a patent issued by the Governor to William Tilton, as-signee of Michael Ryan, dated August 4, 1785.
The first objection to plaintiff's title is that the copy of the' .deed from Charles E. Applegate and wife to Henry S. Wilson, has'the word “Seal” after notary’s signature to the acknowledgment, instead of some words to indicate it to have been his official seal. The notary certifies the certificate to be under his “official seal.” The clerk in copying presumably considered the word “seal” sufficient to show that the official seal was affixed. In the case of Miller v. Holt, 47 W. Va. 10, this very objection
The objection is made to the certificate of acknowledgment to the deed of Ann Kemble, widow of Robert Kemble, because the same is signed by two officers in their double capacity of alderman -and justice. The Code 1819, seetioii 6, chapter 99, authorized the acknowledgment to be made before and certified by two justices of the peace. The word “alderman” can properly be regarded as surplusage, the words “Justice of the Peace” being in accordance with the law.
The next objection is to the two deeds in the chain conveying the title of Robert J. Kemble, deceased, one deed being from Ann Kemble, widow of Robert J. Kemble, dated 1843, and the other from Mary D. Summers, formerly Mary D. Kemble, wife and sole heiress of her father Robert D. Kemble, bearing date ^February 17, 1853, because there was no evidence other than the 'deeds to show that the one was the widow and the other the sole heiress to Robert J. Kemble, deceased. If these deeds were of modern origin, it would be necessary as against strangers to produce such evidence. 24 Am. & En. En. Law (2d Ed.) 60; Wiley et al. v. Given et al, 6 Grat, 276, 277, (Virginia Reports Anno. 722). But such is not the law as to ancient deeds, upwards of thirty years old, where possession has been continuously held thereunder. 24 Am. & En. En. Law (2d Ed.) 61; 2 Am. & En. En. Law (2d Ed.) 331; Harmon v. Stearns, 95 Va. 63; Fulkerson v. Holmes, 117 U. S., 389; Deery v. Gray, 5 Wall. 795; Gaines v. Steles, 14 Pet. 322; Davis v. Pearson, 6 Tex. Civ. Appl. 593; Brown v. Simpson, 67 Tex., 225. This is on the theory that if the recitals were untrue, they would have long since been disproved and time and possession has raised the presumption of their truth, admissible even against strangers. Ann Kemble’s deed under the circumstances- could only be admitted as conveyance of her dower interest in the land, but it was good for the purpose, although it recited therein another deed not produced, which might have conveyed to her some other interest. Deery v. Gray, 5 Wall. 795. Mary D. Summers’ deed conveyed her interest in the land as the sole heir of her father,
These being the only objections to plaintiffs chain oí title, and they being without foundation, we must hold it good. It is strengthened by long-time actual possession of the land thereunder beginning as far back as the year 1860. If the plaintiff had only color of title by break in his chain as to the Kemble deed, still the actual possession of the property by those uiider whom he claims would hare ripened into good title long before the Bradens set up a claim to the land awarded to them by the judgment, and also as to the Deem tract, unless Hester Deem ■or those under whom she claims had such adverse possession as ousted from possession those under whom plaintiff claims. This brings us to> the main issue in this case.
Both defendants found their title to the separate tracts claimed by them under color of title and adverse possession for the period of ten years. The question then presented by the demurrer to evidence is as to whether the defendants or either of' them have had such adverse, open, notorious, continuous and exclusive possession of either of said tracts of land under color of title for the period of ten years prior to the institution of this suit as will divest plaintiff’s title and invest it in the claimant. Hall v. Webb, 21 W. Va. 324; Adkins v. Spurlock, 46 W. Va. 139; Bicker v. Comstock, 113 U. S. 149; Dickerson v. Colegrove, 100 U. S. 578.
Eirst, as to the Geo. W. Braden interlock of about fifty acres. Plaintiff’s predecessors had actual possession of this interlock with a portion thereof under cultivation down until the year 1879, when Ezekiel B'raden after having survejed this land, obtained the key of the house thereon from the tenant in charge, E. Bradley, and as he claimed in the former trial thereby obtained possession thereof. He afterwards tore down this house and removed it off. He did not disturb the Trembly and Daley fields included in the interlock, which had been cleared, fenced and cultivated by tenants under plaintiff’s title. He allowed one Roland in 1881 or 1882 to erect a cabin and cultivate a small piece of ground in a remote corner of the interlock. After Roland moved off, he allowed one Patsey Jenkins to occupy the cabin during the j'-ear 1882. Jacob Riggs testifies that he bought fifty acres of land, including the interlock of defendant Braden during the year 1883, built a house there
Nor is Mrs. Deem’s evidence on demurrer any more satisfactory than her co-defendants. Her counsel claim that the suit by the plaintiff admits her adverse possession at the time of the •suit. This does not necessarily follow as a conclusion of law. For such suit may be maintained against one not in possession, but who may be exercising acts of ownership on the land in ■dispute or claiming title thereto. Code, chapter 90, section 5. Under plaintiff’s title, constructive possession was held under ■the patent from 1785, until the possession became actual by occupancy about the year 1860. To destroy possession, actual •or constructive under plaintiff’s title and the transference of such title to her, it devolved upon the defendant Deem to prove ■■actual occupancy of the interlock, or else the use and emjojuiient thereof by acts- of ownership equivalent to such actual occupation. Taylor’s Devisees v. Burnsides, 1 Grat. 165; Overton’s Heirs v. Davisson, 1 Id. 211; Garrett v. Ramsey, 26 W. Va. 345. It is admitted that the land in the Deem interlock is ■still wild and uncultivated, and has never been in the actual ■occupancy of any one. Defendant to sustain her contention proved the payment of taxes, the cutting of timber, not habitual,
The judgment is reversed, the plaintiff’s demurrer to the evidence is sustained, and judgment will be entered for the plaintiff on the conditional verdict of the jury.
Reversed.
Rehearing
0:sr REHEARING.
Before the law will take from one land owner his superior title, and confer it upon a junior claimant by virtue of adversary possession under the statute/of limitations, it requires that such junior claimant establish by positive evidence, such adverse possession to have been actual, open, notorious, exelu-
If the defendant, George W. Braden had enjoyed such uninterrupted possession, his evidence alone should have been •sufficient to have established a prima facie case, whereas it is wholly insufficient for this purpose. For the period of ten years that he claims to have owned and had possession o'f the interlock, there was no building or other house upon it. The Higgs house, which was shown to have been occupied at various "times by himself and tenants, is entirely outside of the interlock, and there is not shown to have been any continuity of possession even as to this. Because it is shown to have been -occupied at various times, the court is asked to infer that it was occupied all the time, although the evidence wholly fails to ■show any connection between the occupancy of the various alleged tenats. This is pure guess work, and not just, legal inference.
So that George W. Braden’s testimony proves the weakness of 'his case, and clearly establishes the fact that his possession, whatever it may have been falls far short of the just requirements -of the law., He testifies that while he lived in the Riggs house, which was off the interlock, he only tried to cultivate the Trem-bly field within the interlock one year. “The land was too poor, and didn’t bring anything.” This shows plainly why nobody lived upon and cultivated the interlock continuously, and this was because the land was too poor, and would not bring anything. No doubt the house was built purposely off of the interlock to prevent its being included therein, and yet the main part of the defendant Braden’s evidence, and the reliance of his counsel relate to the possession of this house, and not to actual •occupancy ■ of any portion of the interlock. The plaintiff, who is not contradicted, testifies that he purchased the land in 1888, had it surve3>-ed the following spring. That would be in 1889, and in a year or two afterward, had it surveyed by John Cain, that there was no house on the land, but that there was an old house off of it a considerable distance. “There is an old log house there at this time, but there is nobody occupying it. It