Merryman v. Hoover

59 S.E. 483, 107 Va. 485, 1907 Va. LEXIS 67

• Court: Supreme Court of Virginia
• Decided: November 21, 1907
• Status: Published

Opinion

Keith, P.,

delivered the opinion of the court.

Mary O. Merryman and others filed their declaration in ejectment at August Rules, 1895, in the circuit court of the county of Rockingham, against Isaac Hoover, to recover certain real estate therein described. Hoover appeared and disclaimed title and interest as to certain parts of the land demanded, and as to the residue, pleaded not guilty. The jury sworn in the case, on the 4th of . October, 1905, found a verdict for the defendant, upon which judgment was entered, and the plaintiff procured a writ of error from this court, and, in their petition, assign as errors committed by the trial court:

First: That, after the plaintiffs had introduced their evidence of title to the lands in controversy, the defendant offered a deed from James B. Price, under whom plaintiffs claim in part, to the Rawley Iron & Coal Company, .bearing date the 14th day of June, 1888, and duly admitted to record in the clerk’s office of Rockingham county on the 18th day of June of the same year, which purported to convey the land in dispute in fee simple; it being intended by the defendant, by the introduction of this deed, to show that, in so far as they claimed under James B. Price and his heirs, there was such an outstanding title in another as defeated the right of plaintiffs to recover.

In order to meet this contention, the plaintiffs offered in evidence the record of the chancery cause entitled Price, &c., v. Rawley Iron & Coal Company, including the final decree therein, entered on the 6th day of June, 1905, before the trial of the ejectment suit, holding that the deed of the 14th day of June, 1883, and the deed of trust executed by the Rawley Iron & Coal Company contemporaneously therewith on the. lands in controversy, constituted no blot upon the title of those claiming under James B. Price and the heirs at law of Uicholas Clopper, deceased, and no impediment to the assertion of their title. To the introduction of this record the defendant objected, on the ground that all that was necessary to defeat the action of the plaintiffs was for the defendant to show that such outstanding title existed at the date of the commencement of said action, to-wit, on the 13th day of August, 1895; and inasmuch as the deed of June 14, 1883, was duly admitted to record on the 18th day of June, 1883, and there had been no reconveyance of the land to the plaintiffs, or those under whom they claim, before the 13th day of August, 1895, such outstanding title at the time the suit was brought was conclusive of the right of the plaintiffs and it was not competent for them to show that the alleged outstanding title had been divested in any way, or that the plaintiffs, or those under whom they claimed, had been reinvested with title to the land in controversy subsequent to the date of the institution of the suit. This objection was sustained by the circuit court, which refused to permit the record in the chancery cause to be offered in evidence.

The precise contention of plaintiffs in error upon this point is that, while it is true that a plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of that of his adversary, and that an outstanding title in another may be shown in order to defeat the plaintiff’s right of action, such outstanding title must be a present outstanding, operative and available legal title, on which the owner can recover against either of the contending parties if asserting it by action. ' , I

Section 2725 of the Code, treating of actions in ejectment, says: “Ho person shall bring such action unless he has at the time of commencing it, a subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or some share, interest or portion thereof.”

It would seem that this section is conclusive; but we will supplement it by the addition of adjudicated cases.

In Suttle v. R., F. & P. R. Co., 76 Va. 284, Judge Staples, speaking for the court, said: “The doctrine generally understood in Virginia is that in ejectment the plaintiff must show a legal title in himself, and a present right of possession under it at the time of the commencement of the action. To this doctrine some exceptions exist—for instance, one in peaceable possession, and ousted by a stranger without title, may recover in ejectment on the strength of his mere previous possession; and a tenant is estopped to deny the title of his landlord.”

Hone of the exceptions, however, exist in .this case, and need not be considered.

In Warvelle on.Ejectment, at section 228, it is said: “The same principle which, under the old practice, when the names of fictitious parties were. used, prevented a recovery by the plaintiff unless he shoAved himself entitled to the possession at the time of the demise laid in the declaration, has remained practically unchanged through all the mutations to which the action has been subjected. The plaintiff must recover, if at all, upon his legal title as it stood at the commencement of the suit, or, as stated by many of the authorities, at the time alleged in the declaration that he had title, and it has been held in some cases that where the title displayed in evidence is shown to have accrued after such time, even though before the commencement of the suit, he cannot recover. The general rule, however, is as first stated, and under this rulo, if the plaintiff is without legal title at the time of commencement of his suit, he cannot recover, notwithstanding he may have had an equity which ripened into a legal title after the suit was brought. He must recover, if at all, upon his title as it existed, at the institution of his suit, and even though he has the legal title, yet,, if, at the time suit was commenced, his right of possession was-intercepted for any valid cause, he cannot recover, even though such intercepting cause is subsequently removed.” Numerous authorities are cited in the note to this section, which fully sustain the text..

To the same effect is Newell on Ejectment, p. 360, sec. 7.

In Tyler on Ejectment, p. 75, it is said, that “The rule at common law, and in all of the states which have preserved the-distinction between legal and equitable titles to land, is that the plaintiff in ejectment must show a legal title in himself to the-lands he claims, and the right of possession under it, at the time of the demise laid in the declaration, and at the time of the trial. He cannot support the action upon an equitable title, however clear and indisputable it may be, but must seek his remedy in chancery.” There are cases which hold that after the purpose of a trust deed has .been satisfied, the cestui que trust may maintain ejectment upon a demise in his own name, although the legal estate is still in the trustee. Hopkins v. Ward, 6 Munf. 38. But, without expressing any opinion upon that line of decisions, it is sufficient to say, that the ease before us is not within them, for here there is an absolute deed from James B. Price, under whom plaintiffs in error claim, to the Hawley Iron & Coal Company, and a deed of trust executed by the Hawley Iron & Coal Company to the Guarantee Trust & Safe Deposit Company of Philadelphia, a corporation chartered under the laws of the Commonwealth of Pennsylvania.

In Adams on Ejectment (ed. of 1854), at p. 33, it is said to be a maxim of our law, that the party in possession of property is considered to be the owner, until the contrary is proved. It is necessary, therefore, for a claimant in ejectment to show in himself a good and sufficient title to the disputed lands. He will not be assisted by the weakness of the defendant’s claim, for the possession of the latter gives him a right against every man who cannot establish a title; and if he can answer the case on the part of the claimant by showing the real title to be in another, it will be sufficient for his defense (excepting, of course, those cases in which the defendant is estopped from disputing the claimant’s title), although he does not pretend that he holds the lands with the consent, or under the authority of the real owner.”

The doctrine as to the title upon which a plaintiff must recover, if at all, in an action in ejectment, established by the eases and text-writers already quoted, is maintained in all its rigor by the Supreme Court of the United'States. See McNitt v. Turner, 16 Wall. 352, 21 L. Ed. 341; Moorehouse v. Phelps, 21 How. 294, 10 L. Ed. 140; Sheirburn v. D’Cordover, 24 How. 423, 16 L. Ed. 741.

The outstanding title under consideration is evidenced by a deed from J ames B. Price and wife, under whom the plaintiffs claim part of the lands in controversy, purporting to convey an. absolute title in fee simple to the Hawley Iron & Coal Company, a corporation of this state. The deed was executed on th& 14th day of Juno, 1883, and was admitted to record on th& 18th day of the same month. The Hawley Iron & Coal Company, grantee in the deed from Price, conveyed the same land to the Guarantee Trust & Safe Deposit Company of Philadc-1-jffiia, a corporation chartered under the laws of the commonwealth of Pennsylvania, and this deed was admitted to record on the ISth day of June, 1883. The suit in chancery, brought with the object of cancelling these deeds and reinvesting the plaintiffs with the legal title, was not instituted until April, 1901, six years after the institution of the, action in ejectment; and the final decree was not entered until the 16th day of June,. 1905, ten years after the institution of the action in ejectment, and a few months before .it was tried. The effect of those deeds was not only to constitute a sufficient ground of defense to the action of ejectment by showing an outstanding title in another, but they went to the very root and heart of the plaintiff’s case, ■broke in upon and disrupted their paper title, and established beyond controversy that, at the date of the demise laid in the •declaration and at the institution of the suit, they did not have '“a subsisting interest in the premises claimed and a right to recover the same, or to recover the possession thereof, or some share, interest or portion thereof.” Code, sec. 2725.

AYe shall deal, however, more specifically with the contention •of plaintiffs in error. Their position is that, while they must recover upon the strength of their own title, and not upon the weakness of that of their adversary, yet, if the defense rests upon an outstanding title in another, that title must be shown to be one which was a present, subsisting, operative legal title at the time of the trial of the case, and that, at the time of the trial, a court of competent jurisdiction had annulled the deeds from Price to the Pawley Iron & Coal Company, and from that company to the Guarantee Company; and that, therefore, it was not a present, outstanding title in another.

AYe think it has been made to appear that plaintiifs in error •did not show a legal title in themselves at the institution of the suit ; but, taking their case as they present it, they must equally fail.

With respect to the general principle as to the character of outstanding- title which may be relied upon as a defense, there can be no doubt. It is fully established, so far as this court is concerned, by the decision in Reusens v. Lawson, 91 Va. 243, 21 S. E. 347, where Judge Buchanan says: “An outstanding title, sufficient to defeat a recovery in an action of ejectment, must be a present, subsisting and operative legal title, upon which the owner could recover if asserting it by action.” For instance, if the statute of limitations constituted a bar to the outstanding title, it could not be set up as a defense; but to hold that a plaintiff could, after the institution of his suit, acquire from another an otherwise valid title, and thus make good the defect in his own title, would be at war with the fundamental principle recognized in all common law courts by innumerable adjudicated cases, by all the text-writers, and crystalized into a statute in this state, that the plaintiff in an action of ejectment must have in him the legal title at the institution of his suit.

We shall now consider the authorities relied upon by plaintiffs :

In Jackson v. Todd, 6 Johnson (N. Y.) 257, the facts are .somewhat complicated, but a careful reading of the report will show that the deed from Dunbar, under whom Jackson claimed, to Brooks, which the defendant Todd relied upon as defeating the chain of title from Dunbar through Macy and others to Jackson, the plaintiff, was not a subsisting outstanding title at the date of the institution of the suit.

In Jackson v. Hudson, 3 Johnson (N. Y.) 375, 2 Am. Dec. 500, the general principle as to the character of the outstanding title as set out in Reusens v. Lawson, supra, is affirmed, and under the circumstances of that case, it was held that the lapse of time, during which no claimant under the alleged outstanding title had appeared, had been so great that the presumption was irresistible that it was no longer a subsisting title; and the further and decisive objection made to the outstanding title, that it did not appear to have been duly executed.

The case of Perryman’s Lessec v. Callison, 1 Tenn. 515, is cited to show that, where the defendant is permitted to set up a title in a third, person, the plaintiff having first shown a prima facie good title in himself at the time of bringing the action may show, that since the issue joined, he had procured the title of such third person. And the case, upon inspection, seems to be authority for that proposition. Turning, however, to the case of Miller’s Lessee v. Holt, in the same volume, at p. 308, the question was whether it was competent for the defendant to show a better subsisting title out of the lessor of the plaintiff, and the court said: “Possession is always favored, and of itself, with color of title, is a title against all the world except the person having the best title. The law of England on the subject, is too clear to admit of doubt, nor could any reason be. seen why the law should not app]y here as well as there.”

In Crockett v. Campbell, 2 Humphreys 411, the supreme court of Tennessee held, that deeds made after the commencement of a suit, confirming and ratifying’ deeds made before the commencement of the suit, are admissible in evidence, the court saying: “If the deeds confirmed were executed and properly

proved and registered before the suit was commenced, they would pass the title by force of this confirmation, and vest it in the bargainee from their date. The deed of confirmation makes the acts of the attorney good at the date they were performed.

In Lewis v. Curry, 74 Mo. 49, it was held, that a plaintiff in ejectment may recover upon a deed obtained after the date of the demise laid in the petition; but upon looking to the facts, it will appear that, while the deed was obtained after the date of the demise laid in the declaration, it was prior to the institution of the suit; the court saying in its opinion, that there is nothing-in the point that the demise laid in the petition is the 1st day of March, 1876, while the deed was made on the 27th day of April, 1876.

In Martin v. Parker, 26 Tex. 253, much relied upon by plaintiffs in error, the court, speaking of the outstanding title relied on in that case, said: It would seem that it “was barred by the statute of limitations when set up by the intervenor; or, if not barred, it was extinguished by having been bought in by the plaintiff before the trial. It was not a present, subsisting and operative title at that time, and could not, therefore, defeat a recovery by the plaintiff. The latter having, prima facie, a good title at the time of instituting the suit, had a right to-protect himself by buying in the outstanding title, even after issue joined.” Citing the cases which we have already considered. That case seems to be authority for the position of plaintiffs in error, but it stands alone.

In Mexie v. Lewis, 87 Texas 208, 22 S. W. 397, it is said: “It is laid down in this court as a general rule, that the plaintiff in an action of trespass to try title, must recover upon his title as it existed at the time of the institution of the suit; and that in order to avail himself of an after-acquired title, he must amend so as to avail himself of it as a new cause of action. An ■exception has been recognized in a case in which the plaintiff when he brings his suit has the superior title as against the defendant, and subsequently buys an outstanding title for the protection of that which he formerly held. Martin v. Parker, 26 Texas 254. This case does not fall within that exception. Nor, in our opinion, does it come within any other exception which has been recognized by this court.”

Wilson v. Braden, 48 W. Va. 196, 36 S. E. 367, maintains the general proposition, that “an outstanding title in a third person, in order to defeat the plaintiff’s recovery-in ejectment, must be a present, subsisting, legal title, not one barred by the statute of limitations, abandoned or otherwise lost. It must be one which the party owning it could now assert. The burden is on the defendant to show the present validity of such title.” But it is not authority for the proposition that it may be acquired by the plaintiff in ejectment after the institution of his suit, in order to mend a gap in his own title.

We are of opinion, therefore, that there was no error on the part of the circuit court in refusing to permit the record of the chancery suit of Price v. Rawley Iron & Coal Co. to be introduced in evidence in this case.

We think the modification made by the court in instruction No. 4, offered by plaintiffs in error, was clearly right, and that the law is correctly stated in Malone on Real Property Trials, at p. 293, where it is said: “If several tenants in common having a cause of action, one of whom is under disabilities and the ■others not, those under no disabilities will be barred by the statute, while the one under disabilities may recover. Each tenant in common has a right to sue and recover his interest; therefore, it is no excuse to say that a co-tenant was under disabilities.”

We think that there was no error to the prejudice of plaintiffs in error in refusing Instruction Ro. 5, even though it be-conceded that it correctly propounded the law, for the court-subsequently, at the instance of defendant in error, gave to the jury correct instructions upon the subject of adversary possession, very properly confining itself to the general principles of law controlling in such cases and leaving it to the jury, subject, to the supervision of the court, to apply the principles to the facts in issue, rather than undertake to summarize those facts-gathered from a voluminous record and present them to the jury, as was done in the instruction asked for, at the peril of omitting some fact which the evidence tended to prove, or of embracing some fact not sufficiently proved. This court has-said in numerous cases, that the refusal of an instruction, even though it correctly propounds the law, will not be ground for reversal, if other instructions to the jury, upon the same subject, were sufficient to enable them correctly to apply the facts. The same principle obtains in other courts.

In Armstrong v. Morrill, 14 Wall. 120, 20 L. Ed. 765, it is-said: “Where the instructions given were in all respects sufficient to dispose of the controversy, it is not error to refuse to-give further instructions.”

Instruction Ro. 6, offered by plaintiffs in error, was properly refused. - The circuit court of Rockingham county had no jurisdiction over the land lying in West Virginia, and the forfeiture,, under the law of that state, of so much of those parts of the original tracts of land as lay within its borders could not affect defendant’s title by adversary possession to lands lying within this commonwealth, and within the jurisdiction of the circuit court of Rockingham county.

Ror were plaintiffs in error prejudiced by the refusal of the court to give Instruction Ro. 7, for, if the facts upon which that instruction is predicated be true, then the plaintiffs were out of court; for the same title in the commonwealth which was sufficient to disrupt- the continuity of defendant’s adverse-possession, was equally efficacious to break tbe plaintiffs’ chairo of title; in other words, if the title was in the commonwealth at the institution of the suit, and was not restored to plaintiffs in error until the 28th of April, 1900, then, upon the authorities considered, with reference to the first assignment of error, there-'could be no recovery, for, as was said by this court in Reusens v. Lawson, supra, “There is no reason why a defendant in an action of ejectment should not be permitted to rely upon an outstanding legal title in the commonwealth. The plaintiff must rely upon the strength of his own title, and if it appear in the cause that the legal title is in another, whether that other be the defendant, the commonwealth or some other person, it shows that the plaintiff has not the legal title, and it is, therefore, sufficient to defeat his recovery.”

In support of this assignment, plaintiffs in error rely upon Armstrong v. Morrill, supra. In that case (which, by the way, went from West Virginia, and involved, to some extent, a construction of the laws of that state prior to 1861), the defendant-relied upon adversary possession, and it appeared from the-facts that, during a part of the period necessary to bar the-plaintiff’s action under this plea, the title had been forfeited to the state; and the court held that this broke the continuity of the adversary possession, and that the two disjointed parts-could not be computed in order to maintain the plea, the court saying: “Continuity of possession is one of the essential requisites to constitute such adverse possession as will be of efficacy under the statute of limitations. Whenever a party quits the possession, the seisin of the true owner is restored, and a subsequent wrongful entry by another constitutes a new disseisin, and it is equally well settled that if the continuity of possession is broken before the expiration of the period of time prescribed by the statute of limitations, an entry within that time destroys the efficacy of all prior possession, so that to gain a title under the statute a new adverse possession for the time limited must be taken for that purpose.” But it also appears in that case, that before the institution of the suit, the plaintiff had redeemed the land, which had theretofore been forfeited to the commonwealth, and his full fee simple title had been restored to and was vested in him.

Upon the whole case, we are of opinion that the jury was correctly instructed, and, without discussing’ the evidence in detail, that the facts were sufficient—certainly when viewed, as we are bound to view them, as upon a demurrer to evidence-—to ■ sustain the verdict of the jury.

The judgment of the circuit court is, therefore, affirmed.

Affirmed.