117 Va. 884 | Va. | 1915
delivered the opinion of the court.
This proceeding is under the act of the General Assembly approved March 4, 1912—Acts 1912, p. 183—which provides that any person having an interest in real estate, upon petition filed in the court which would have jurisdiction in an action of ejectment concerning such real estate, shall have the right to have ascertained and designated by the said court the true boundary line or lines to such real estate as to one or more of the coterminous land owners. All persons interested in the coterminous real
Defendant in error, Maggie G. Rabey, pursuant to said statute, filed her petition in this cause, making plaintiffs in error, Frank Wright and wife, and Martha Hargrove, the widow, and Mary Frances Hargrove, infant child and sole heir of Legare Hargrove, deceased, defendants thereto, in which the petitioner sets out her ownership of a certain lot of land, containing 3 3-20 acres, more or less, its location and the sources of her title thereto; the boundaries of her said land, the ownership of the lands of the defendants adjoining hers, and then sets forth that the part of the southern boundary line of her land which divides it and the land of the said defendant, Frank Wright, and the whole of the western boundary which divides her land and the land of said defendant, Mary Frances Hargrove, remains undefined and is undetermined and indefinite, and praying that said disputed, undetermined and unascertained lines might be ascertained and designated by the court as between petitioner and her mentioned coterminous land owners, according to the provisions of said statute.
The defendants, Frank Wright and wife, appeared and filed a lengthy answer in writing to said petition, which upon the motion of the petitioner the court struck out and ordered a designated surveyor to go upon the lands of the litigants in the cause and make a physical survey of the
The first assignment of error is to the ruling of the court striking out the answer filed by plaintiffs in error to the petition of defendant in error. It is contended that because the defendant in error had incorporated two issues in her petition, the claimed location of her southern line and the claimed location of her western line, a plea which by the rules of pleading directed the court’s attention to a single point is not suited to a defense to the petition, but the defense should be set up by way of answer as though the proceeding was in equity.
This contention is not only without merit but is wholly inconsistent with a further contention made by plaintiffs in error, viz., that this in fact is merely an action of ejectment to try title to and recover from plaintiff in error,
It is to be observed that the second provision of the statute expressly prescribes the procedure of a defendant after the filing of the petition, in that it expressly adopts, in substance, at this stage of the proceeding the pleading prescribed in an action of ejectment for the .defendant. The title of the act is “to authorize the ascertainment and designation of the boundary lines of real estate,” and it was clearly within the contemplation of the legislature that just such conditions as those presented in the petition of defendant in error presented in this cause might exist, and to provide a summary method and a proceeding by which such disputes might be settled and determined without having a great deal of technical formality about it and the true boundary line or lines between coterminous land owners or claimants designated, the determination of the dispute to be by trial before a jury, or the judge of the court where trial by jury is waived by the parties to the controversy, and upon issue or issues joined between them as in other actions at law.
It may be conceded that plaintiffs in error, defendants below, had the right to file the answer they tendered in this cause, yet the refusal of the court to permit the answer to be filed was not at all prejudicial, since the matters set up therein, which were not mere conclusions of law relied on by way of defense, could have been and were, as far
The second assignment of error calls in question the ruling of the court rejecting plaintiffs in error’s plea No. 3. Pleas numbered 1 and 2 which were permitted to be filed and upon which issue was joined set up, in substance, every thing and matter contained in plea No. 3, differing only in language, and therefore the court did not err in rejecting this additional plea, and no possible harm could have resulted to plaintiffs in error or advantage to defendant in error by its rejection.
Defendant in error in her petition set forth concisely her contention as to the location of the true boundary line between her real estate and that of the plaintiff in error, Frank Wright, and in support of this averment she offered in evidence a deed from one Alexander Moore and wife to James Hargrove for the land now owned by Mary Frances Hargrove, another of petitioner’s coterminous land owners and a defendant in this cause, and also the plats and notes of survey of the land conveyed in said deed made by one Brewer, surveyor of Nansemond county, which deed conveyed by metes and bounds (identical with those of the Brewer plat) lands adjacent to and coterminous with that of defendant in error mentioned in her petition; and the ruling of the court allowing the introduction of said deed and plat is made the basis of plaintiffs in error’s third assignment of error.
The complaint of this ruling is directed mainly to the introduction in evidence of the plat and notes of the said Brewer survey. To show the relevancy and admissibility of said deed, plat and notes of survey would involve a review of a great number of muniments of title introduced in evidence by the respective parties, and to do so would needlessly prolong this opinion. Suffice it to say that an
Assignment of error No. 4 is, as counsel for defendant in error contend, but a corollary of assignment No. 3, and relates to the ruling of the court refusing to exclude from the evidence certain plats. Defendant in error introduced Richard Brinkley, the surveyor appointed by the court to make the survey above mentioned, and George Neurnev, who assisted him in making the survey, as witnesses, and through these witnesses introduced two plats made by them, marked “Plot No. 1” and “Plot No. 2,” they explaining said plats, how a certain heavy red line “A, B, C,” shown on plat No. 2 had been arrived at, and stating that this was run-upon the best information they had'been able to obtain, and which showed the northern line of the land of plaintiff in error, Frank Wright (the line here in dispute), formerly what was E. Laycock’s land; whereupon plaintiffs in error moved the court to exclude from the jury both of said plats and all the testimony given by the witnesses Brinkley and Neurney, which motion the court properly overruled.
We are of opinion also that the court rightly overruled the motion of plaintiffs in error to exclude from the evidence in the cause a deed executed by one E. F. Williamson to James Hargrove. The boundary calls of this deed were for the lands of James Hargrove, E. F. Williamson and the Craney Island road, and it seems impossible for the land therein conveyed to have been bounded by any other lands of E. F. Williamson than that derived from him and now owned by defendant in error. It was the dividing line between the land conveyed by this deed that the de
The action of the court in refusing to instruct the jury that the deed from J. W. Ames, commissioner of the court ■ in a prior suit of Hartman & Whitehill v. Williamson’s Admr., of date February 28, 1890, conveying to Willis Howell the 3 3-20 acres of land now claimed by defendant in error, offered in evidence by the latter, was void as a conveyance of the land described therein and therefore could be considered only as giving color of title; and also the rejection by the court of certain reports, decrees and orders in said chancery cause, and certain oral testimony offered by plaintiff in error, Wright, in support of his motion to so instruct the jury, is assigned as error.
Whatever the circumstances under which said deed was executed and whatever effect it might have had as .concerned the parties to the suit pursuant to the decrees in which the deed purported to have been made, it was not open to collateral attack by strangers to that suit.
“Whenever deeds or grants conveying adjacent land tend to identify and fix a disputed boundary, the general rule is that they are admissible in evidence.”' Hamman v. Miller, 116 Va. 873, 83 S. E. 382.
The seventh and eighth assignments of error relate to the action of the court in refusing four instructions asked
The evidence offered in the case consisted not only of the testimony given by a large number of witnesses introduced on behalf of the respective parties, but of a mass of documentary evidence, and the instruction given by the court, which is set out in the statement of the case, told the jury, in effect, and' rightly, that the proceeding was pursuant to the statute, supra, providing' a summary method by which disputes between coterminous land owners as to boundary lines may be determined by the court or a jury without having a great deal of technical formality about it, and that it was for them to consider the evidence in the case and upon it to determine the true boundary line between the parties to the controversy. This instruction, we think, fairly submitted the case to the jury, and in fact as favorably if not more favorably to plaintiffs in error than the instruction they themselves asked.
The remaining assignment of error is to the refusal of the court to set aside the verdict of the jury on the ground that it is contrary to the law and the evidence.
As we have seen, the case was submitted fairly to the jury by the court’s instruction to determine the weight, credibility and sufficiency of the evidence given in support of the contentions of the respective parties, and upon the evidence, which is conflicting and confused, the jury has rendered a verdict that sustains the contention of defend
Affirmed.