93 W. Va. 667 | W. Va. | 1923
This is a suit in ejectment brought to settle the question of location, right and title to a tract of fifty acres known in the record as the Abner Suttle tract. The facts are substantially the same as were involved in the suit of unlawful entry and detainer between the same parties, heard here on a writ of error to the judgment in favor of defendants and reported in 86 W. Va. 103.
We think it quite unnecessary to restate all the facts and issues again presented in this case, so well and clearly stated by Judge Lynoh in his opinion on the former hearing.
As in that case, so again in this, the one fact determinative of the whole controversy is the true location of what is called the base line between lots Nos. 9 and 10 of the Bartholomew and Antoine Terrason 20,000 acres as surveyed by Nathan Smith, surveyor, in 1839, and afterwards sold as forfeited and delinquent land. As was said by Judge Lynoh in the former case, the true location of this division or base line will concededly settle the rights of the parties. As called for in the plat of surveyor Smith and subsequent deeds for the lots and parts of said lots bounded thereby, it began at a white oak on or near a fork of Spring creek in the line of No. 1, the same being a corner to No. 9; thence with the same N. 63y2 W. 1200 poles to a black oak, in the most westerly line of the entire survey. The white oak called for as the beginning corner is not in disphite; it is still standing, well marked; and there is no controversy as to its identity or location.
The land claimed by plaintiffs as described in the immediate deed from Margaret J. and Cyrus A. Crislip, Thomas P. Ryan and Walter Pendleton, of March 23, 1916, is as follows : “Beginning at the corner of the Roberts survey; thence S. 62 E. 200 poles to the corner of W. Casto and L. Jenkins; thence N. 28 E. 40 poles to a chestnut oak; thence N. 62 W. 200 poles to a sugar; S. 28 W. 40 poles to the place of beginning, containing 50 acres, more or less.”
The Roberts survey called for is a tract of 400 acres, part of said lot No. 10, but lying west of the land sued for, and as described in the deed of John E. and Sarah Wine to William Roberts, of November 10, 1854, is bounded as follows: “Be
The white oak corner to Shearman ‘‘Selfknowing tree,1 ’ described in this deed, is manifestly in the base line between lots Nos. 9 and 10, and the corner called for in plaintiffs’ title papers. As observed by Judge LyNch in the former case, the surveyors for the plaintiffs located the white oak corner called for about eight rods north of the white oak stump found and identified by several witnesses for the defendants as the stump of the original timber called for; and since the trial of the unlawful detainer case and the decision here, Sharp, defendants’ surveyor, as his evidence shows, has run the base line between lots Nos. 9 and 10, from the white oak to the black oak, and from the black oak as located by him back to the white oak, and found the line passing practically over the white oak stnmp, the Roberts corner called fo'r, and practically on or along all the fences presumably on said line, and gives it as his opinion that the white oak stump is the original timber called for as the corner to the Roberts survey.
But the true location of this base or division line and of plaintiffs ’ land, a question of fact, controlled of course by the legal rules and principles applicable, was a question of fact for the jury.
The only plea interposed by the defendants, and the only one that could have been interposed under our statute, was a plea of “not guilty”; and on the issue presented by this plea the parties went to trial, before the jury impaneled to try it.
The record shows that after the trial* had been in progress for a day perhaps, the defendants C. G-., A. M., Troy, Grace and Haven McCoy and Harvey Miller were permitted, over plaintiffs’ objection, to file a disclaimer, whereby they undertook to disclaim any interest or ownership in any of the lands in controversy or described in the declaration which may be found to lie or be situated within the area bounded as follows: “Beginning at a point where a white oak stump formerly
The first point of error assigned and relied on by plaintiffs is the action of the trial court in permitting the defendants to interpose their disclaimer in the midst of the trial. Undoubtedly when sued in ejectment, defendant should examine his title and possession, and if he would avoid the trouble and consequences of a trial, he should promptly disclaim any and all lands to which he lays no claim or in which he has no interest, or if he has any right or interest in any part of the lands sued for, designate the part and disclaim the residue. Such seems to be the practice. prescribed by the authorities. 7 Enc. Plead. & Prac., page 343; 19 C. J. 1121; N. & W. Railway Co. v. Christian, 83 W. Va. 701, point 3 of the syllabus. The reason of this rule is to avoid trouble and confusion and unnecessary expense in the trial of the case, for the plea of not guilty alone puts in issue the right and title to the whole of the land sued for and imposes upon the plaintiff the burden of sustaining his right and title to the whole of the tract, and a general verdict and judgment thereon is thereafter conclusive between the parties and their privies in estate.
But the rigid rule insisted on by plaintiffs, which would deny a defendant the right to file his disclaimer after issue joined on his plea of not guilty and after trial begun and
The second point of error relates to the action of the trial court on the trial, in permitting defendants to inquire of several of the witnesses whether W. F. Wilson, husband and father of some of the plaintiffs, had not in their presence on different occasions prior to the trial pointed out to them or in their presence the white oak stump as the southwestern corner and the beech corner as the southeastern corner of the land sued for at different points than as claimed by him in his testimony given on the trial. This evidence was admitted simply for the purpose of contradicting or impeaching the evidence of Wilson, the foundation having been laid therefor on his cross-examination by defendants’ counsel. The same question was presented on the trial of the unlawful detainer case, and it was decided that for the purpose of such contradiction the evidence was proper. It may be that in one or two instances the questions may have been asked before the proper foundation had been laid, but the court subsequently
We now come to the consideration of the points of error with reference to the instructions. The plaintiffs submitted ten instructions, of which the court rejected numbers one to sis, inclusive, but gave the remaining four as requested. As bearing generally on the subject, we are referred by counsel to Hopkins, Brother & Company v. Richardson, 9 Gratt. 485, point 7 of the syllabus, for the proposition that, “If there is any evidence before a jury tending to prove a case supposed in an instruction asked for, and the instruction propounds the law correctly, it should be given.’’ We have so held in this state, if the evidence so tends in' an appreciable degree, not that there is a mere scintilla of evidence, the court should instruct on the law applicable to the theory as asked. 15 Enc. Dig. Va. & W. Va. Rep. 513, and cases there digested; 3 Id., Cum. Sup. 739.
As we held in the trial of the unlawful detainer case, the plaintiffs’ rights depend almost wholly on the true location of the base line between lots Nos. 9 and 10 of the Terrason lands, and their whole effort on the trial was to locate that line as their surveyors had attempted to locate it. Their instructions Nos. 7, 8 and 9, given, fully cover their theories, including in the ninth their theory of adverse possession under color of title. Instructions Nos. 1, 2, 3 and 4, referring to the deed of H. A. Wiseman and wife to W. M. McCoy, of May 6, 1914, and other deeds, would have told the jury sub-stantialfy that if they found the base line laid down on the plat made by the surveyors Thorne, Taylor and Wolfe was there correctly laid down and applied to the ground, they should find for the plaintiffs. This proposition was sub
Instruction No. -5, however, went farther. It would have told the jury that if they should find from the evidence that the survey, plat and report of Thorne, Taylor and Wolfe,' made in December, 1916, and in September, 1917, in evidence, “has not been objected to, disproved or impeached but stands unquestioned for its full worth, then said survey, plat and report should be preferred in establishing the exact corners and lines on the ground when made from the corners and distances set out in the various deeds under which the plaintiffs and defendants claim title.” Just what idea this .instruction might have conveyed to the jury we do not know, but to say the least of it, it seems misleading and uncertain to us. It seems to imply that thére was no objection to the survey, plat, etc., and that it had not been questioned or impeached. The truth is that it was objected to, and there was much evidence tending to show that the base line and corners were not where these surveyors located them. And so far as these ex parte plats and surveys themselves were concerned, they had no probative value independently of the evidence of the surveyors, and then simply for the purpose of illustrating their work on the ground. 4 Enc. Dig. Va. & W. Va. Rep. 765, and the Virginia and West Virginia cases there digested. These six instructions may properly have been rejected on the well recognized rules applicable thereto; first, that in so far as proper they were fully covered by those given; second, for singling out certain facts on which the case could not be made to turn and ignoring other facts material in the consideration of the case by the jury; and, third, in-withdrawing from the .jury the question as to what weight ..should be given to particular evidence.
• 'Upon the questions raised by the exceptions to the four : instructions given at the instance of defendants. Number ■ one related to the burden of proof. No reasons are given ■here for the-.objection to it,-and our examination of it discloses no good ground for exception thereto.
The objections urged to these three instructions are: first, that there is no evidence in the record to support them; second, that they are in conflict with plaintiffs’ instruction number nine, which embodies the rule laid down by the court in the unlawful detainer ease for ascertaining the location df the corners and boundaries of the plaintiffs’ land; third, that the facts' assumed in these instructions are contrary to the evidence introduced by the defendants themselves, particularly the evidence of the witness M. M. Parsons.
We do not find in these deeds introduced by the supplemental record, nor in any of the other deeds in evidence, any substantial basis for the facts assumed in instructions two and three. All the deeds involving the white oak and beech corners as termini of the southern line of the Suttle fifty acre tract, including the three deeds brought in by the supplemental record, we believe, call for the white oak corner to William Roberts, except the deed of July 7, 1855, from T. A. Roberts to Washington Casto; it calls simply for a white oak without describing it as the William Roberts corner; but Roberts’ deed of the same date to Lemuel Crislip does call for the same white oak and describes it as a corner to the William Roberts land. In no part of the record is there any evidence of a departure or of an intention to depart from the original monuments as located on the base line between lots 9 and 10 of the Terrason survey, on the part of any former owner. Of course the owners of these lands, in their conveyances, might, by mistake or intention, have located the corners outside of the base line. If by mistake they had so located them outside of said base line, they might be estopped by their deeds from locating them elsewhere, but it would not follow that defendants would be entitled to the six and one-half acres within the boundary not disclaimed, if they were within the boundary of the fifty, acres laid down on the true
The remaining errors relied on for reversal are summed up in plaintiffs’ motion to set aside the verdict as being contrary to law and the evidence and because of the misdirection of the court in the instructions given for defendants. We have already disposed of the questions presented by giving and refusing of instructions. What should the verdict and judgment have been? Certainly the jury should, in the first place, have been required to locate the base line between lots Nos. 9 and 10, for that was one of the important facts in issue. Miller v. Holt, 47 W. Va. 7; Croston v. McVicker, 76 W. Va. 461; Clay v. White, 1 Munf. 162; Section 25, Chapter 90 Code.' The verdict of the jury should have been definite. If they intended to locate the line as claimed by defendants, after defendants’ disclaimer, they should have found for plaintiffs .the land disclaimed, describing it with certainty with reference to title papers or maps and surveys in evidence, and then have found for defendants the land not disclaimed, describing it with the same certainty as would be required in a declaration in ejectment. Pardee v. Johnston, 70 W. Va. 347, 354, and cases cited; Code, chapter 90, sec. tion 25. The situation here is not as it was in Tolley v. Pease, 72 W. Va. 321, where the defendant. disclaimed all beyond the line M. to E. on the map of the official suryeyor. In that case we held that the general verdict of the jury for the defendant was in effect to find that the line to which the disclaimer related was the true division line between the contending parties, and there was something definite upon the record on which the court might give judgment. In this case
Plaintiff may have been wrong in not desiring judgment in their favor.for the land disclaimed; but the verdict was clearly defective, as indicated, and may they not have been justified in not desiring a judgment on a general verdict for defendants which did not define the land disclaimed or the land to which the jury believed the defendants were entitled ? We think the court should have set it aside, or better, should have given the jury proper direction before discharging them, so as not to have invited a mistrial.
For these reasons the judgment will be reversed, the verdict set-aside, and the plaintiffs awarded'a new trial.
Reversed and remanded.