Riffle v. Skinner

67 S.E. 1075, 67 W. Va. 75, 1910 W. Va. LEXIS 8

• Court: West Virginia Supreme Court
• Decided: February 15, 1910
• Status: Published

Opinions

EOBINSON, PRESIDENT:

In this action of ejectment, the plaintiff, by the verdict of a jury, has judgment for a fee simple estate in 153 acres of land. In seeking to overthrow the judgment defendant insists that tbe evidence established more than ten years adverse possession on his part, thereby barring plaintiff 'from recovery against him- and that, at any rate, plaintiff did not show such title in himself as that upon which he could recover. •

Plaintiff relies upon a deed from Camden and Arnold, made to him in 1875, and complete possession thereunder since that time. Defendant relies upon a deed from another source, made to him in 1890. Bach deed clearly calls for a tract adjacent to that called for in the other. They each call for the line of an old survey which, properly located, is the division line between them. Upon the faces of the two deeds there is no conflict. Looking to the deeds, there is no overlap or interlock. But in actual contest there is a disputed strip. The dispute has arisen because of different claims as to the proper location of the line of the old survey separating the tracts. Plaintiff insists that defendant has crossed over this division line and encroached upon his land. To oust him therefrom this suit was instituted.

Neither party relies upon perfect chain of paper title; both rely upon possession. Plaintiff says that his possession of land under his deed has extended to the true boundaries called for by that deed and has embraced the land in controversy, and that defendant has not had such possession of the disputed strip as would bar plaintiff from its recovery. Defendant says that his deed calls for the strip; and that, in any event, he now owns it by reason of more than ten years adverse possession.

The jury found that plaintiff’s claims were supported by the . evidence. The evidence as to the true location of the line, possession bjr defendant, the character, of that possession, and other material matters relating to the issue, is conflicting. It is oral testimony of witnesses in the presence of the jury. In such case we have no power to invade the province of the jury by disturbing the verdict on the alleged ground that it is contrary to the evidence.

Has the plaintiff shown a title sufficient■ for recovery? The jury has affirmed by its verdict his claim that he has been in possession for 27 years, under color of title, adverse to all others. Is that' finding of fact such a showing of title as will enable plaintiff to recover in ejectment? The plaintiff must recover on the strength of his title alone. In ejectment this proposition is fundamental. But what are the essentials of strength of title sufficient to support ejectment? What makes a case for a plaintiff in ejectment? Must be affirmatively, as is sometimes loosely said, sbow title against all the world? If he must do so, it is strange practice that calls upon him so to negative the validity or existence of all other claims to the land bnt his own. The plaintiff, to recover, must show a legal title to the land. He must prove a legal title that has the strength to prevail over the title relied upon by defendant or proved by defendant to be outstanding in a third party. B-ut only to that extent is the burden of showing title upon the plaintiff. He is not obliged to eliminate from consideration the possibility of a better title than his, unless the defendant presents it. Ejectment is a contest between the parties, as is any other action. The action binds only the parties to it. And when the plaintiff proves a title in himself, having the elements of strength sufficient for recovery, he may rely upon it and recover thereby unless the defendant shows that a better title exists either in himself or another. That he must show title against all the world means simply that he must show a legal title better than any other presented against it on the trial. It does not mean that he must do more affirmatively than show that he has a recoverable legal title to the land in controversy.

The expression that a title against all the world must be shown by a plaintiff in ejectment has evidently led to a belief by some that it is always incumbent on the part of such plaintiff to show that title has been granted by the commonwealth. The rule that title must be traced to the commonwealth 'has been carried to an extent that is not justified by reason nor by the purpose for which such tracing is ever required. In ejectment, it is required that the plaintiff trace title to the commonwealth if he relies alone on paper title. But, the rule of tracing title to its original fountain, the sovereignty of the soil, properly pertains only to a showing of paper title — a reliance on paper title alone. Even in such case, presumptions may be established which sometimes suffice to do away with the showing of a complete chain of documents. It must be so, otherwise valid titles and vested rights will be lost by long lapse of time incurring changes which produce the loss of records and evidence. So where a plaintiff in ejectment relies wholly upon paper title, upon deed without possession, he must show the chain taking the title to its origin. It requires this showing to vouch strength in the title and to make it a prima facie legal one sufficient for recovery. But where a plaintiff can rely on other than a paper title it is not so. He need not trace title to the commonwealth. Where there is seizen or possession under claim of title there is always presumption of title. Tyler on Ejectment and Adverse Enjoyment 78; 3 Wigmore on Evidence, section 1779; Teass v. St. Albans, 38 W. Va. 1. “So the uninterrupted enjoyment of property or privileges for a long' space of time raises a presumption of legal right.” Starkie on Evidence (10th Amer. Ed.), marginal page 75. And when that seizen or possession is of the length of time to bar recovery, it presumptively vests title in the party who has been possessed. It makes good legal title'upon the showing of which one may recover. It makes a prima facie showing of title. True it may not be sufficient to avail against all the world, but it avails in ejectment until the defendant overthrows it. There has been a failure in some of the decisions to distinguish between the essentials of proof of paper title and the essentials of proof of title by the presumption arising from long continued seizen. It suffices, however, to enunciate true principles without particularly referring to all the instances in which they have been overlooked.

In the case under consideration, it is maintained that one may not recover in ejectment upon proof of adverse possession, unless he shows that at some time the state granted the land or that there has been that which would cause a transfer of the state’s title under'Art. XIII of the Constitution — ten years adverse possession and payment of the taxes for five years. In support of this contention we are cited to Witten v. St. Clair, 27 W. Va. 762, which we admit sanctions it. But such view seems unreasonable, unwarranted, and unsound. Shall a plaintiff in ejectment be required to show more than the affirmative of the legal title upon which he relies ? Shall he be required to provide in proof against the mere contingency that the state may not have granted the land or that the state may have title by forfeiture? What if there has been an actual grant, the title resting on which has never been forfeited? Why cause the plaintiff to prove all the essentials of a transfer to him under, the Constitution when there could be no transfer- if the state had no title? More reasonable would it be to require him to show that title is actually out of the ■ state¡ Yet suppose that the state, or the Commonwealth of Virginia, never at any time had title, that the land was granted before the existence of either, as may be true in counties where ancient grants from the crown or lord of the fee were made before our independence. In such case shall plaintiff, though resting upon long and good adverse possession, be required to delve into the secret recesses of the past to find such grant, or, failing to find it, be required to prove the essentials of a transfer under our Constitution which could not have taken place because such granted title was actually outstanding and not forfeited? In following such a rule for proof of title, one may be permitted to rely on a taking of the state’s title that never occurred. If there is an outstanding title in the state, why should not the defendant show it? State titles are rare at-this late day compared with the great mass of individual' titles existing in our now old settled country. Why attach such importance to a grant from the state, disregarding all presumption of grant that must exist by the very nature of things? The state is not a party to the action; nor bound by it. Why not as well require a plaintiff who relies on perfect chain of paper title, to prove that the state has not acquired title by forfeiture for non-payment of taxes? Title in the state by forfeiture is more probable than original title in the state. Yet it is universally the rule that the defendant must show outstanding title by forfeiture. The plaintiff, we sajr, by the showing of adverse possession for a length of time which under the law vests one with, title, sufficiently negatives all outstanding title and raises in his favor the presumption of a grant. He makes a prima fade case. It remains for the defendant to overthrow it. ifWhere an adverse possession is shown, the burden is on the true owner to show, why it should not be operative against him, such as that he was within some exception contained in the statute, or that during a necessary period of the possession the title to the land was in the government.” 2 Ene. L. & P., 576.

It is elementary law that where there is possession there is usually presumption of title. 3 Washburn on Real Property, section 1945. That presumption is a legal one; it suffices for proof and avoids the necessity of evidence until it is rebutted. 4 Wigmore on Evidence, section 2515. And the presumption of title in an adverse holding of land for the statutory period that bars other claimants therefrom surely suffices to take the place of proof on the part of a plaintiff in ejectment, if he sees fit to rely on it and take the risk of its being rebutted. There can be nothing unreasonable in this view; it is plainly consistent with the force of legal presumptions in the trial of other actions. This presumption of title that accompanies an adverse holding necessarily implies si grant originally from the sovereignty, since the title presumed must have that origin. And since a grant from the state is presumed, the claim that the statute of limitations does not run against the state unless payment of taxes is shown is immaterial. That question need not be considered. Again we say, the state is not a party. The contest is between individuals. “Title may be acquired by grant or by adverse possession. The latter is a prescriptive title or right presupposing a valid grant, and deriving its strength and virtue from the statute of limitations, barring the remedy." Camden v. Lumber Co., 59 W. Va. 157. Grants from the commonwealth -long ago were presumed, and such presumptions given force. Since our country is now completely settled and greatly prosperous, there is certainly the more reason for presuming that title is not still in the state. In 1808, more than a century ago, Judge Tucker wrote: “Presumptions in favor of long and peaceable possession, that there has been a grant, must, at no very long period hereafter, be absolutely necessary to be made, on almost all occasions, in consequence of the operation of our law of descents.’* Archer v. Saddler, 2 H. & M. 370. In the same case, .Judge Roane mentioned, in referring to the reasonableness for the recognition of presumption that the state had not title, the improbability that at that time and in the settled section from which the case arose lands should be vacant. How much more the reason and necessity for applying such presumption in this day of settlement and progress t How much greater now the improbability that land is vacant or unappropriated; yea, or even forfeited for non-payment of taxes!

The presumption of title that arises from adverse possession of land under claim or color of title, embodying as it'must a presupposition that the title has left the state, is either overlooked in Witten v. St. Clair, supra, or at least therein given no credence. Yet such a presumption of grant and title when there has been adverse possession for the statutory period sufficient to bar recovery, operating to support plaintiffs title in actions of ejectment, has long been recognized in the law of the Virginias. It was clearly observed in the old Virginia law relating to ejectment and the writ of right. The essentials of a showing of title on the part of a plaintiff in ejectment in this., day is not different from that necessary when ejectment and the writ of right'were separate actions, except that statutes have gradually shortened the time of the adverse holding necessary to be shown, the running of which will cause the presumption of title to be available. .This shortening of the time has been but an aidance of the presumption of title. It has made the presumption to be available earlier than formerly. As the country has become more populous and titles more settled good policy has dictated a shorter period for giving force to adverse possession and the presumption which springs therefrom. As to the old action of ejectment, in Tucker’s Com., Book 3, page 176, it is said: “In support of his title the 'plaintiff may either prove an uninterrupted and peaceable possession by him and those under whom he claims for fifteen years anterior to the ouster, which itself is sufficient to enable him to maintain ejectment, or he may deduce his title from the commonwealth by á regular and unbroken chain; — though if he and the defendant both claim under the same remote title, it will be unnecessary for him to go farther back than that common source.” And, as to the writ of right, on page 185, the author says: “The demandant may establish his claim either by exhibiting a connected chain of title from the commonwealth down to himself, or by relying on the length of possession of himself and those under whom he claims. ■ In the first ease the chain of title must be perfectly connected and unbroken; beginning with the commonwealth’s patent,- and brought down to the demandant, by deed, devise, or descent, from one owner to another, in regular succession. In the latter ease -he proves that he himself, or some person under whom he claims, had enjoyed an uninterrupted possession for fifty years; and if he rests upon the uninterrupted possession of another person, he traces the title, by deed, devise, or descent, from such person to himself, and produces the instruments and evidences which establish such right.” Note distinctly from this text that the title need be traced only to the sufficient adverse possession — that it need not be traced to the state when sufficient adverse possession is found. Judge Tucker was writing at a time when the statutory bar to .ejectment was fifteen years and to the writ of right fifty years. Now the actions are merged, and the time of the bar is ten years. Time and settlement have made it beneficial to decrease the time to that period. And the ten years now is as effective in aid of a plaintiff in ejectment as was fifteen years or fifty years when Judge Tucker wrote. The learned Justice Story said: “In general, it is the policy of courts of law to limit presumption of grants to periods analogous to those of the statute of limitations, in cases where the statute does not apply. But where the statute applies, it constitutes, ordinarily, a sufficient title or defense, independently of any presumption of a grant, and, therefore, it is not generally resorted to.” Ricard v. Williams, 7 Wheat. 110. The presumption of title now follows, the showing of an uninterrupted possession for ten years, just as it followed the showing of 'such possession for the longer periods required by the older laws. “The time within which such presumptions are to be indulged seems to be now fixed in analogy to the highest bar to real actions.” 22 Am. & Eng. Enc. of Law, 1290. Even earlier than the time of Judge Tucker’s last mentioned writings, in 1814, the great Chief Justice Marshall, himself a Yirginia iawyer, in the decision of a case arising in Virginia under the law of that eommon- • wealth, said: “By the laws which govern this case, a possession of thirty years under some circumstances, and of fifty years, under any, constitutes a title against all the world.” Alexander v. Pendleton, 8 Cranch 462. And now, in this late day,- after progress, development, and settlement of which the founders never dreamed, causing salutary changes in the statutory period of bar, we say that proof by a plaintiff of ten years uninterrupted possession of land is presentation of title against all the world, which in the action can onty be defeated by evidence on the part of the defendant. “The statutes of limitation are emphatically statutes of repose, and are dictated by a wise policy, founded upon the presumption against him who has unreasonably delayed the assertion of his demand, and in favor of him who has long exercised the dominion of owner.” Taylor v. Burnsides, 1 Grat. 187.

Does not the presumption of a grant from the sovereignty prevail in that rule of ejectment law, SO' well observed by us, that a.plaintiff need only trace his title to a source common to that under which the defendant claims? In such case it is never required that plaintiff show that the state or sovereignty parted with the title in some way. Defendant is estopped to deny the title, since he also claims under it. Does not that estoppel rest on a presumption — that the title has left the state ? Yet the decision in Witten v. St. Clair, supra, does not seem even to except such case. Under that decision, if strictly construed, a plaintiff, relying on a source of title common with that of defendant, must nevertheless show that sometime the state granted the land or provided against the mere possibility that it did not grant it by showing that, if not granted, title passed by transfer under the Constitution. It would seem to require every plaintiff in ejectment, at all hazard, to show affirmatively that the title is out of the state, or to guard against the remote possibilty that it may be still in the state. A requirement of that kind is not consistent with reason. It, also, must be based on a presumption — that the -state may have title. That presumption rests on a-thing improbable. Why not recognize the more probable presumption, arising from long adverse possession and the infrequency of state titles in this day, that the state has no title? The latter presumption is sanctioned by law. Mathews v. Burton, 17 Grat. 312; 1 Greenleaf on Evidence (15th Ed.), section 17; 22 Am. & Eng. Enc. of Law, 1289; Fletcher v. Fuller, 120 U. S. 534. In Lawson on Presumptive Evidence, throughout chapter XVIII, there is an enlightening exposition of the subject of presumptions in the law of real property.

Adverse possession of land for.the period of the statutory bar to real actions is a source of title upon which one may recover in ejectment. Plaintiff need only trace his title to such source. If that adverse possession has not been effective as against the state, by reason of a failure of the holder to pay taxes, whereby his claim was forfeited, or otherwise, the defendant must show it. The presumption that there has been a grant and that taxes have been paid, in other words that there is unforfeited .title, shifts the proof to him. “The statute of limitations is' not only a defense which the occupant may interpose in bar of the plaintiffs action for land, but it also constitutes a source of title to the occupant, to which he may appeal to sustain an action of ejectment brought by him as plaintiff, whether against the rightful claimant or a third person, provided the occupant’s possession has been such as will cause the statute of limitations to have run in his-favor.” 2 Minor on Real Property 1021. “Under our statute, such possession for ten years gives perfect title, not a mere right to continue the possession, not a title to be lost by mere temporary abandonment of actual joossession. It is not only a defensive title, but one which will sustain an action of ejectment as effectually as a deed or a grant. If, after title is acquired by adverse possession, the holder thereof loses the actual possession, he may maintain an action to regain it just as if he had a perfect paper title.” Summerfield v. White, 54 W. Va. 322. “The statute itself confers and invests title in the occupant as effectually as does descent, devise, or grant, so that he may not only defend, but if afterwards another enter upon the land, he may maintain ejectment on the title conferred by the statute, though he have not the scratch of a pen to show title.” Parkersburg Industrial Co. v. Schultz, 43 W. Va. 475. There is no conflict in a multitude of authorities upon this subject. The principles enunciated in them are plainly a recognition that in title by adverse possession a valid grant is presumed, and that without such presumption the statute of limitations cannot have that full force and effect that was intended for it so that it might bring about the repose and peace of society. 2 Minor’s Inst. (4th Ed.) 574; Hogg’s Pl. & Forms, section 35; Garrett v. Ramsey, 26 W. Va. 345, and other cases. Pertinent, upon the whole, are the remarks -of’ the chancellor in the South Carolina case of Sims v. Aughtery, 4 Strob. Eq. 119: “These legal presumptions, by which conflicting claims and titles are set at rest I have endeavored to show are natural and necessary. They spring spontaneously out of the institution and relations of property. As to the precise time at which they arise, each independent community must judge for itself. * * * * Twenty years continued possession will raise the presumption of a grant from the State, of deeds, wills, administrations, sales, partitions, decrees, and of almost anything that may be necessary to the quieting a title which no one has disturbed during all that period.”

In this case, the establishment by evidence of all the essentials of adverse possession for a period of 27 years, under color of title by the deed which plaintiff produced, and the presumption of title arising therefrom, made a case upon which plaintiff could recover, since it was not successfully met by defendant. There is no error in the judgment; it will be affirmed.

Affirmed.