Griggs v. Brown

102 S.E. 212, 126 Va. 556, 1920 Va. LEXIS 8

• Court: Supreme Court of Virginia
• Decided: January 22, 1920
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

[1] There being no evidence in the case even tending to show any actual possession of any part of the land in controversy by the plaintiffs or any of their predecessors in title, as appears from the statement preceding- this opinion, the plaintiffs must rely upon their paper title to sustain their claim of ownership of such land.

Further: As also appears from said statement, there is a break in the chain of the plaintiff’s claim of paper title due to the fact that there is no evidence in the case of any probative value which even tends to show that the boundaries, by which the land is claimed to be conveyed by two deeds on which plaintiffs rely and must rely, include the land in controversy.

The deeds alluded to are mentioned in detail in the statement aforesaid and will be hereinafter designated by the names of the grantors therein,, as the Crask deed and the Peake deed. We will first consider the general description contained in such deeds.

As does appear from such deeds the parcels of land conveyed thereby adjoin and the two parcels lying adjacent to each other extend toward the south from the road mentioned and which is shown on the diagram above set out. But there is no evidence of any probative value even tending to show that such land as conveyed by such deeds extend beyond, i. e. to the south of, the line A B shown on. -such diagram. The John Powers and Griffith land men-tinned in the Crask and Peake deeds may have then cornered at a different point from the point “C” shown on said diagram. The land in controversy may have belonged to a “Griffith” at the time these deeds were made, and the beginning station of the survey, the calls of which are contained in the Crask deed, may have been at A as shown on said diagram and a line of the Griffith land may have then run from the points A to E as designated on such diagram; or at that time such beginning point may have been somewhere on the line A B as shown on such diagram, and the John Powers line may then have been on a different location than from D to A and the Griffith line on a different location than from E. to B. as shown on such diagram. Such locations would depend on the location of the Powers and Griffith lands in question at that time as evidenced by their titles, respectively, appearing from deeds or other evidence of their acquisition of lands in that locality and the evidence of what alienation they may have made of such previously acquired lands prior to the time in question and there is an entire absence in this case of any evidence whatsoever of that character.

The quantity of land conveyed by the two deeds in question as called for therein falls short of the eight and one fourth acres claimed by plaintiffs by some two and three-fourths to three and three-fourths acres; so that even that element of description contained in such deeds, which is of the least probative value on the subject of location, furnishes no evidence tending to show that the lands conveyed by such deeds extended from the road, shown on said diagram, so. far south as the line A B, even if we could assume that the side lines of the plaintiffs’ land were located by their paper title approximately as claimed by them.

As appears from the statement preceding this opinion both of said deeds conveyed by general description—the Peake deed by general description only—the Crask deed also, however, by calls for courses and distances. We will now consider the extrinsic evidence before the jury to locate the land by such courses and distances. On this subject we are met, as appears from the aforesaid statement, with the fact that there was an entire absence of any evidence before the jury to locate on the ground the beginning point, or any other point of beginning or ending of any of the lines of the land as. per such metes and bounds.

[2] There is left only the testimony of a surveyor, who was one of the witnesses for plaintiffs, which is mentioned in the aforesaid statement, to the effect that his conclusion from the evidence in the case was that such metes and bounds included the land in controversy. Such conclusion was not evidence. Va. Coal & Iron Co. v. Ison, 114 Va. 144, 75 S. E. 782; Richmond v. Jones, 111 Va. 214, 68 S. E. 181; Holleran v. Meisel, 91 Va. 144, 21 S. E. 658; Sutherland, v. Gent, 116 Va. 783, 82 S. E. 713.

And although such testimony was admitted before the jury without objection, that circumstance cannot give to it any probative value. Being itself unsupported by the evidence on which it was based, all of which was before the jury, it could add nothing to the quantum or effect of such evidence.

[3] On the whole, therefore, it is plain that there was no evidence before the jury to sustain a finding that the boundary lines of the land as called for in the said deeds in the chain of title of the plaintiffs included the land in controversy, and hence the verdict of the jury must be set aside, and a new trial awarded to the defendants.

[4] There are other questions raised in the case, but in view of the above conclusion it is unnecessary for us to deal with them. It is uncontroverted before us that in a proceeding such as this, equally as in an action of ejectment, a plaintiff, who cannot rely upon actual possession, must recover, if at all, upon the strength of his own title.

Reversed and remanded.