9 W. Va. 438 | W. Va. | 1876
In an action of trespass, in the circuit court of Jefferson county, instituted by Wustland against the defendants, for unlawfully, and with force and arms, taking and carrying away divers goods and chattels of the plaintiff, and converting the same to the defendants’ use, the plaintiff obtained j udgment, upon verdict of the jury on the general issue joined, for the sum of $1,136.00 against Potterfield and Chapline, who have obtained a superse-deas to the judgment.
It appears from bill of exceptions number one, that the plaintiff, to support the issue upon his part, having exhibited in evidence, a deed of bargain and sale from G. W. Mispelhorn to the plaintiff, showing the conveyance, for valuable consideration, of the said goods and chattels to the plaintiff by said Mispelhorn, and having proved the execution and recordation of said deed, and possession under it, and having further introduced evi
Mr. Greenleaf, in 2 Evid. sec. 613, says, “Though the right of property may, and often does, come in controversy in this action, yet the gist of the action is the injury done to the plaintiff’s possession. The substance of the declaration, therefore, is, that the defendant has forcibly and wrongfully injured the property, in the possession of the plaintiff; and under the general issue, the plaintiff must prove, (1.) that the property was in his
That the gist of the action is the wrong done to the plaintiff’s possession, is the established doctrine, authorized by adjudications, and recognized universally by approved textwriters.
Applying the rule to the case before us, the plaintiff appears closely to have followed it. The bill of exceptions shows, that he introduced the deed conveying from G. W. Mispelhorn the property to him, and his possession of the property under it; and as mere possession is sufficient against a wrong-doer, (Estes v. Cook, 22 Pick. 295, 3 Rob. New Pr. 414, and cases cited,) without showing any special title, the defendants in this case, upon the authority of 3 Robinson, just cited, standing neither on any former possession of their own, nor deriving title under the possession of any other person, and without giving any answer to the fact of the plaintiff’s prior possession, but resting merely on the objection that the plaintiff’s title was fraudulent, come with bad grace upon that ground to the Appellate Court, because, “he Avho commits a trespass upon the possession of another? being himself a wrongdoer, has no right to put the other party on proof of title.” The court, therefore, did not err in refusing to admit in evidence the declarations and admissions of the vendor, G. W. Mispelhorn.
Therebeing no exceptions taken to the instructions given to the jury, before verdict and judgment, the Appellate Court cannot now review the judgment of the court below on that point; and as the facts or evidence are not certified upon the principles adjudicated in Washington and New Orleans Telegraph Co. v. Hobson, 15 Gratt. 122, the Appellate Court cannot now review the judgment of the court below overruling the motion for a new trial.
This case does not present the question decided by this Court at Wheeling at the July Term, 1876, in the case
The judgment should be affirmed with costs and damages.
Judgment Affirmed.