Smith v. Bailey

127 S.E. 89, 141 Va. 757

• Court: Supreme Court of Virginia
• Decided: February 26, 1925
• Status: Published

Opinions

Chichester, J.,

delivered the opinion of the court.

References in the opinion are made to the following map:

OCEAN VIEW AVE. 50 feet.

The controversy in this case involves title to the ten foot strip of land fronting on Ocean View avenue, in Ocean View city, embraced within the territory designated by the letters F G P O.

On March 5, 1922, L. J. Bailey, the defendant in error here and the plaintiff in the court below, hereinafter referred to as the plaintiff, instituted an action of ejectment, in the Circuit Court of Norfolk county, against Annie E. Smith, plaintiff in error, defendant in the trial court, and hereinafter so designated, to recover the ten foot strip of land above indicated.

On July 7, 1922, the court, hearing the case by consent without a jury, found for the plaintiff, and on October 5, 1922, after maturely considering the whole case, there being no exceptions to any evidence introduced or action of the court in the admission thereof during thé progress of the trial by defendant, the court having overruled her motion to set aside the judgment and grant her a new trial, entered final judgment for the plaintiff for all the territory embraced within the letters F H Q O. The .controversy is now pending here upon a writ of error duly awarded the defendant.

It was a manifest error to include in the judgment the lot 21 indicated by the letters 6 H Q P, since this lot was not in controversy. But to this we will refer later.

In order to maintain the issue on his part the plaintiff first introduced his own deed from W. J. Scultatus and wife which conveyed to him:

“All that certain lot and parcel of land, situated at Ocean View, in Tanners Creek magisterial district, Norfolk county, Virginia, known and designated as lot twenty-one (21) and the adjoining ten (10) feet of lot twenty (20) in block number six (6) as shown on the plat or plan of the property of the Ocean View Cottage Company, which said plat is duly recorded in the clerk’s office of the Circuit Court of Norfolk county, Virginia, in map book 5, at page 24. Said lot twenty-one (21) and the adjoining ten (10) feet of lot twenty (20) in block six (6) on said plat, taken as a whole, fronts sixty (60) feet on Ocean View avenue, and extending back between parallel lines one hundred and fifty (150) feet, and are a part of the said property conveyed to the said William J. Scultatus by the Ocean View Cottage Company, by deed dated September 30, 1907, and duly recorded in deed book 320, at page 107, in the clerk’s office of the Circuit Court of Norfolk county, Virginia, to which said deed reference is hereby made as a part of this description.”

With reference to the map, this embraced all the territory indicated by the letters F H Q O.

He next introduced a copy of the map of the Ocean View Cottage Company referred to in his deed.

He then introduced, without objection by defendant, copies of the following deeds:

Deed bearing date September 30, 1907, from the Ocean View Cottage Company to Vm. J. Scultatus.

Deed bearing date February 16, 1909, from W. J. Scultatus and wife, plaintiff’s grantors, to Dawber, conveying part of lot 19 (on the map) embraced in the letters A B K I.

Deed bearing date February 19, 1909, Scultatus and wife to H. H. Lavenstein, conveying the balance of lot 19, on the map, and ten feet of lot No. 20, adjoining, •embracing the territory indicated by letters BDMK,

The last mentioned two deeds may be said to have been introduced in rebuttal of the contention that a proper interpretation of defendant’s deed located her on the ten foot strip F to G and embraced this disputed area within her description. At least they should be considered in rebuttal of this contention, because the plaintiff had, prior to and without introducing these deeds, made out a perfect paper title to the land in controversy.

He next introduced a witness, J. R. Kirk, a surveyor, who filed a survey and plat of the property described in the deed and conveyed to the plaintiff, L. J. Bailey, indicated on the map by the letters FHQO. This plat shows that the dwelling house occupied by the defendant is entirely to the west of the line F O but that an out house, the character of which is not testified to, is on the ten foot strip, and that a porch on the side of the house also extends over the line. " This witness also testified that there was the remnant of an old fence a few inches over the eastern line of lot No. 20 (the line G P) but that it did not constitute any encroachment on the land claimed by plaintiff.

In order to maintain the issue on her part the defendant introduced copy of a deed bearing date June 16, 1910, from Scultatus, who was the immediate grantor of the plaintiff, to Ayers and Garrison; a copy of a deed of May 29, 1915, from Ayers and wife to Garrison, and her own deed from Garrison and wife, dated September 30, 1919.

She testified that she had possession of the ten feet in controversy; that the building had been- constructed for a long time, and that the line of the premises immediately west of her property was generally known as the H. H. Lavenstein line.

The descriptive parts of the deeds introduced in evidence by the defendant are identical, except in her own deed from Garrison and wife, and were as follows:

“All that certain lot, piece or parcel of land, with the building and improvements thereon, situated in the county of Norfolk, State of Virginia, and known, numbered and designated on the plat of Ocean View Cottage Company, duly recorded in the clerk’s office of the Circuit Court of Norfolk county, in map book 5, page 24, as the eastern thirty feet of lot numbered twenty (20) in block six, being more particularly bound and described as follows:

“Beginning at a point in Ocean View avenue at the eastern line of property of H. H. Lavenstein, and running thence along Ocean View avenue thirty (30) feet, thence southwardly in a line parallel to the eastern line of H. H. Lavenstein, one hundred and fifty (150) feet, thence westwardly in a line parallel to Ocean View avenue thirty feet to H. H. Lavenstein’s line, thence northwardly along H. H. Lavenstein’s line, one hundred and fifty feet to the beginning, being a part of the property which was conveyed to W. J. Scultatus by the Ocean View Cottage Company, by its deed dated September 30, 1907, and duly recorded in said clerk’s office in D. B. 321, page 107.”

In the defendant’s own deed the description of the lot conveyed to her by Garrison and wife is identical with the two prior deeds in her chain of title, except in the significant particular that in those two deeds the language is “land with the building” (using the singular), while in the defendant’s deed the plural is used, “land with the buildings.”

From the foregoing, it appears that W. J. Scultatus, prior to February 16, 1909, had purchased from the Ocean View Cottage Company, and owned at that time, three lots, Nos. 19, 20 and 21, in block six, Ocean View city, on the south side of Ocean View avenue. Bach lot had a frontage of fifty feet on the avenue and each ran back between parallel lines 150 feet. These lots were conveyed to Scultatus as they were originally laid out in the town survey, and the plat designating their location, and metes and bounds, was duly recorded in the clerk’s office of the county of Norfolk. Scultatus has, since February 15, 1909, sold all of the land embraced in these three lots, but he did not sell the land in lots as originally laid out.

He divided the territory embraced in the three lots into four lots, and sold them as follows: On February 16, 1909, he conveyed a lot fronting thirty feet on Ocean View avenue running back between parallel lines 150 feet, being the western thirty feet of lot No. 19, to G. F. Dawber. The frontage of this lot so conveyed is designated by the letters A—B on the map.

On February 19, 1909, Scultatus conveyed another thirty foot front lot, B to D, to H. H. Lavenstein. This lot took up the balance of lot 19, twenty feet, and ten feet of lot No. 20.

On June 16, 1910, Scultatus made conveyance of a thirty foot front lot to T. M. Ayers and J. M. Garrison. Ayers later conveyed his one-half interest to Garrison and on September 30, 1919, Garrison conveyed the lot to Annie E. Smith, the defendant.

It cannot be denied that when the plaintiff rested his case he had a perfect paper title to the ten foot strip in controversy. He had presented his deed from Scultatus which beyond any peradventure of a doubt embraced this ten foot strip. He had presented with it a copy of the plat of the Ocean View Cottage Company which had been duly recorded, referred to in his deed and which located his lines definitely, and without a chance of making a mistake as to them. He filed in addition a plat by Kirk, the county surveyor, showing the lines of his lot as called for by his deed, and this embraced the ten foot lot in dispute, and Kirk testified as to the possession of the defendant. Up to this point he had undoubtedly made out a prima facie case which entitled him to recover. He did not need to rely on the weakness of his adversary’s title. His own title was perfect and had all the elements of strength. He had located the land in dispute within the clear description of his deed.

In order to defeat the right and title of the plaintiff thus established, the defendant, as is indicated by the evidence on her behalf, seeks to show a prior outstanding title in herself.

There is no question here of the plaintiff relying on the weakness of his adversary’s title to recover. The question is, had Scultatus, the common grantor, parted with the title to the ten foot strip in controversy prior to the time he had made his deed to L. J. Bailey, the plaintiff.

When the defendant undertakes to defeat the plaintiff’s title by setting up an outstanding title in herself, according to well established authority, she must show a present, subsisting and operative legal title upon which

she could recover against the plaintiff if she were asserting it by action. Holladay v. Moore, 115 Va. 66, 78 S. E. 551; Parkersburg Ind. Co. v. Schultz, 43 W. Va. 470, 27 S. E. 255.

This is a case of comparison of titles. We think, as will presently appear, that if conditions in this case were reversed, that is, if the defendant had been the plaintiff, and the plaintiff had been the defendant and in possession of the land, and each had presented his title papers as they are now, there could be no.question then as to Bailey’s right to prevail. This is the test according to the rule laid down in Holladay v. Moore, supra. As above stated there is no question as to what land the plaintiff’s deed embraces. It is located with absolute certainty by the description thereof in his title papers. There are no two interpretations possible as to his deed or as to the land it intends to convey. The sole question here is whether Seultatus had parted with the title to the strip of land in question before he executed the deed to the plaintiff. Considering the whole evidence in the case as it was considered by the trial court, does this appear? We think not.

The defendant to establish an outstanding title in herself relies:

(1) On her paper title.

(a) The deed from Seultatus to Ayers and Garrison.

(b) The deed from Ayers to Garrison.

(c) The deed from Garrison to herself.

(d) The plat of the Ocean View Cottage Company referred to in all of said deeds.

(2) Her possession at the time of the institution of the action.

(3) The location of an outhouse and the side porch attached to the dwelling house on the ten foot strip.

In order to determine whether Scultatus had, previously to his conveyance to the plaintiff, parted with title to the ten foot strip in controversy to Ayers and Garrison, we must ascertain what lot or parcel of land the parties intended the one to convey and the other to purchase at the time the deed from Scultatus to Ayers and Garrison was made. In other words, it is a question of locating the land itself by the description used in the deed and by such extrinsic evidence in aid thereof as is necessary to make the intention of the parties as to such location clear. Courts are especially lenient in considering extrinsic evidence in reference to descriptions used in deeds to arrive at the true location of the land conveyed. That is, there is a clear distinction between the rules of interpretation where the object is to ascertain the parties who take or the kind of estate taken, and where the object is to locate the land from the description contained in the deed. Devlin on Deeds (3rd ed.), 1015-a.

The office of description in a deed is to furnish means of identification of the land intended to be conveyed. Simpkins v. White, 43 W. Va. 125, 27 S. E. 361; Blake v. Doherty, 5 Wheat. (U. S.), 359, 5 L. Ed. 109; Jones on Real Prop., section 323.

A deed conveying land, in order to be valid against a subsequent purchaser, must so describe and identify the property conveyed as to afford the means, with the aid of extrinsic evidence, of ascertaining with accuracy what is conveyed and where it is. Merritt v. Bunting, 107 Va. 174, 57 S. E. 567, 12 Ann. Cas. 954.

It is clear from the foregoing that courts cannot, in case of a deed conveying land, simply interpret the language used in the descriptive part of a deed. They must fit the description to the land itself in order to ascertain “what is conveyed, apd where it is.”

With the foregoing in view, while it is not apparent on the face of the deed under consideration that there is any repugnance between the description in the deed which refers generally to the lot conveyed as the eastern thirty feet of lot 20, and the “more particular description” by metes and bounds, except that it is very noticeable that while the lot conveyed is described as the eastern thirty feet of lot 20, and the plat of the Ocean View Cottage Company is referred to, nowhere in the “more particular description” following is the line between lots 20 and 21, G P referred to, while the “Lavenstein line” D M is expressly made the nucleus from which the description starts, around which it revolves and upon which it is made to depend.

But independently of this, under the foregoing authorities, it was the duty of the court to fit the description to the ground. From a strict interpretation of the language of the deed without attempting to locate the lot conveyed by this description, it appears that the Lavenstein line D M is thirty feet from, and parallel to, the western line of lot 21, the line G P, but as a matter of fact it is actually forty feet distant. Scultatus knew this at the time he made the deed. Ayers and Garrison, his grantees, knew it, since means of knowledge with the duty of using it is equivalent to knowledge itself. Jameson v. Rixey, 94 Va. page 348, 26 S. E. 861, 64 Am. St. Rep. 726; Fulkerson’s Adm’r v. Taylor, 102 Va. 314, 46 S. E. 309. And a surveyor sent upon the premises to locate the lot from the description in the deed would find it out immediately. His directions are to start “at a point in Ocean View avenue at the eastern line of property H. H. Lavenstein.” He is then told to go only thirty feet in an easterly direction, then south, 150 feet parallel to H. H. Lavenstein’s eastern line (not along the western line of lot 21), thence west to H. H. Lavenstein’s line, thence north along Lavenstein’s line to the beginning. Note how the Lavenstein line and land are stressed throughout this entire description. It is both the alpha and the omega of the description, and it was the duty of the court, as it would be of a surveyor, to locate this line and lot, since it was a monument, a call, in the true location of the lot conveyed. And it was the duty to actually locate the Lavenstein line, as it was at the time of the conveyance to Ayers and Garrison, not as located at the time of the hearing of this controversy by the defendant, “the land west of me was generally known as the Lavenstein lot.”

“A deed is to be interpreted and construed as of its date, and a call in the descriptive portion thereof for an adjoining tract of land as a monument, is a call for the true location of such adjoining tract at the date of the deed; and the location of the adjoining tract, though not involved in the litigation, may be ascertained for the purpose of the interpretation of the deed calling for it.” State v. Herold, 76 W. Va. 537, 85 S. E. 733.

There could be no difficulty whatever with the aid of the town plat, and the Scultatus to Lavenstein deed, in correctly locating the Lavenstein line and the beginning point of the lot conveyed to Ayers and Garrison.

(Incidentally it should be observed here that the case of Nye v. Lovitt, 92 Va. 710, 24 S. E. 345, cited in plaintiff’s petition as holding that “in construing one deed, another deed from the same grantor to a different grantee, and in reference to a different subject matter, cannot be looked to in order to ascertain the meaning of the grantor in the first deed,” has no application to a case of this kind where the object is to locate land described in a deed and reference is made to adjoining land. State v. Herold, supra, applies so far as the principle therein above laid down is concerned. The Nye Case is one in which the court was not seeking to locate land from description, but to ascertain who the grantor intended should take under the deed. In addition the deed in the Nye Case does not refer to any other lands or line or deed in the description, while in the instant case the deed does, and under the authority of State v. Herold, supra, the true location of the Lavenstein land and line at the date of the deed is a monument, made so by the deed itself. The distinction's obvious.)

When we undertake to locate the land described in the instant case it then clearly appears what was a more or less latent ambiguity becomes a very apparent ambiguity between what may be termed the general and the particular description. State v. Herold, supra, 76 W. Va. 537, 85 S. E. at page 735.

When this situation presents itself it is the duty of the court to ascertain the intention of the parties as gathered from the description as applied to the land itself in the light of circumstances surrounding the parties (Lindey v. Eckels, 99 Va. 668, 40 S. E. 23) at the time of the conveyance, and not as of the date of the trial (State v. Herold, supra).

The repugnance in the two descriptions however is more apparent than real when we view it in the light of what has been said and the authorities quoted.

The first description, viewed in this light, is simply and only a general designation as to the location of the lot, followed immediately by what is characterized in the deed itself as “a more"particular description,” and there isn’t any doubt in the world about the location by this “more particular description.”

It will be observed from a reference to the deeds introduced in evidence by the plaintiff that Scultatus had previously sold thirty feet of lot 19 to Dawber; that he had sold the remainder of lot 19 (twenty feet) and ten feet of lot 20 to Lavenstein. This ten feet sold to Lavenstein was the western ten feet or western part of lot 20. So that all of lot 20 lying east of Lavenstein’s eastern line was generally viewed by the parties as the eastern part of lot 20, and when Scultatus conveyed thirty feet of lot 20 to Ayers and Garrison he described it generally as the eastern thirty feet of the lot, but immediately added, “being more particularly bounded and described, beginning at a point in Oeean View avenue, at the eastern line of the property of H. H. Lavenstein,” D on the plat, and it could be no other. As heretofore said, a surveyor sent upon the ground at the time of the conveyance, to locate the lot cionveyed, would, and undoubtedly should, have located this point as the beginning point. When he examined the deed and saw the reference to the Lavenstein line as the beginning point he would, by reference to the records, including the plat referred to in the deed, locate D. From then on it would be only a matter of measurement. But note the definiteness of the description thereafter—“along Ocean View avenue, thirty feet.” Nothing said about the line between lots 20 and 21, showing clearly that it was never the intention to reach that line in the thirty foot lot conveyed: “* * * thence southwardly in a line parallel to the eastern line of Lavenstein(not with the western line of lot 21) another circumstance strongly indicative of intention; “thence westwardly in a line parallel to Ocean View avenue, thirty feet to H. H. Lavenstein’s line, thence northwardly along H. H. Lavenstein’s line 150 feet to the beginning.” Note the repeated reference to the Lavenstein line in this description, indicating that this line is the guiding point in the location of the lot conveyed. And note the apparent studied avoidance of any mention of the line G P between lots 20 and 21. In this view of the ease the general reference to the plat of the Ocean View Cottage Company and to lot conveyed as the eastern thirty feet of lot 20, in block six, indicates that the parties had in mind the thirty feet east of that lot on the west which had theretofore been sold, and that this description was a general location which was particularized by the very definite, certain, and accurate description and location, immediately following.

Nothing could be more strongly indicative of the intention of the parties than the very great particularity used in the description of the lot by metes and bounds. It is so explicit that the very general reference to the eastern thirty feet of lot 20 merges into it to such a degree that (“being more particularly described”) there can hardly be said to be two repugnant descriptions.

But the rule is that when there are two repugnant descriptions equally explicit (which is not the case here), that description will prevail which the whole deed shows best expresses the intention of the parties. State Savings Bank v. Stewart, 93 Va. 447, 25 S. E. 543.

We think we have shown that the descriptions are not necessarily inconsistent, but if they are, then the definite, particular description, which in this case is the description by metes and bounds, with no uncertainty whatever as to it, will prevail over the general description, certainly and especially where, as in the instant case, it accords with the manifest intent of the parties. Gilbert v. McCreary, 87 W. Va. 56, 104 S. E. 273, 12 A. L. R. 1172.

In that case Judge Poffenbarger, speaking for the court, said: “Ordinarily, a particular description of land found in a deed or will prevails over a general description thereof found in the same instrument; but, if the general description harmonizes with the manifest intention of the parties, in the ease of a deed, or of the ■testator, in the ease of a will, as disclosed by any proper evidence, including the terms of the instrument, and the particular description does not, the ordinary rule of preference does not apply, and the general description prevails.

“If a will devising an unnumbered part of a city lot, on which there is a house bearing a certain number, described it by the number of the house and name of the street on which it fronts, calling the property a ‘house and lot,’ and then described the lot by metes and bounds, so as not to include all of the ground covered by the house, the general description, conforming to the manifest intent of the testator to give the house for comfortable use and enjoyment, prevails over the particular description.”

In that particular case the general description harmonized with the manifest intention of the testator. Clearly the house was the thing he was devising. In the instant case, as has been shown, the particular description harmonizes with the intention of the grantor, and under this authority should prevail. Mason Mathews, Thayer and Holley, Trustees, v. J. P. Gillespie, 137 Va. 639, 120 S. E. 324.

■ We have already seen that the description by metes and bounds is very exact and positive and that standing alone it is most convincing as to intention of the parties. There can be no mislocation of it. What was the situation of the parties at the time the deed was made and what the circumstances? Scultatus was subdividing three lots he had bought into four or five to sell them. The most natural way and the business way to sell the land embraced in the original lots, once they were subdivided, was to sell all of it as it was reached, without leaving an unsalable ten foot strip between two lots. It could never be conceived that this was Seultatus’s intention. If the description, eastern thirty feetr is given the meaning plaintiff in error contends should be given it, and to the exclusion of the “more particular description,” this is exactly what Scultatus did, a foolish and unbusinesslike thing. On the other hand, if the particular description by metes and bounds prevails, he did the logical and business like and sensible thing. That this was his intention is conclusively proved by his subsequent conveyance of the ten foot strip lying next to lot 21, along with that lot. If he had intended to convey it before he would not have attempted to make a subsequent conveyance of it.

As against this positiveness of description and the circumstances surrounding the parties at the time of the execution of the deed to Ayers and Garrison, which bear out the contention of the plaintiff as to the location of the lot conveyed, we have the very general description, or rather as we have shown the very general designation, as to the location embraced in the description “eastern thirty feet.” It is true that the plat of the Ocean View Cottage Company is referred to (and we are not unaware of the rule that a plat referred to in a deed becomes a part of the deed), but this plat is only referred to in a general way and there is not a line or a call in the plat anywhere mentioned in the description. On the contrary, as we have heretofore pointed out, the “more particular description” studiously avoids any reference to the line between lot 20 and lot 21, except by inference “eastern thirty feet.”

Again there are no surrounding circumstances existing at the time the deed from Scultatus to Ayers and Garrison was executed to strengthen the contention of defendant, or to add weight to her construction.

Defendant claims that her possession adds strength to her contention, but the record utterly fails to show that defendant’s predecessors in title, Ayers and Garrison, were ever in possession of the ten foot strip in controversy for a moment; that they were ever put in possession by Seultatus, or that they entered Into possession under their deed with Seultatus’ knowledge. Evidence of this if it had been a fact must have been available, and yet neither Ayers nor Garrison were called to testify in proof of it. The failure to prove so vital a circumstance must be taken to mean that it was not a fact.

The defendant’s possession therefore resolves itself into bare possession which fell before the better title shown by the plaintiff. It was prima facie evidence of .ownership only up to the point where a better title than bare possession gives is shown. Holladay v. Moore, supra.

Defendant also attaches much weight to the fact that there is an out house of some kind, the record does not disclose what, and a side porch attached to the dwelling house located on the ten foot strip. The evidence as to them has been fully set out heretofore. By reference to this evidence it will be seen that, as in case of lack of proof as to possession by Ayers and Garrison, so in reference to the building and porch, the record is as silent as the grave, not only as to whether Seultatus erected any building or porch on the ten foot strip and sold it to or put Ayers and Garrison in possession thereof, or whether they took possession with his knowledge of any building on the ten foot strip, but also as to whether there was any such building and porch there at the time of the execution of the deed. Circumstances surrounding the parties which help to indicate intention must be shown to have existed at the time of the execution of the deed. State v. Herold, supra, 76 W. Va. 537, 85 S. E. at page 735; Scraggs v. Hill, 37 W. Va. 706, 17 S. E. 185. These circumstances which the defendant relies on to aid in her contention are not shown to have existed at the time of the execution of the deed.

There was evidently a building, a dwelling house, on the lot Scultatus conveyed to Ayers and Garrison, and it is a fair inference that Scultatus built the house. The difference between the price he paid for the lot and that at which he sold it indicates this, and his deed to Ayers and Garrison specifically refers to and conveys, with the lot, the building thereon. The evidence shows that the dwelling house is entirely on the thirty foot strip, described by metes and bounds, while the encroachments are a side porch and an outhouse of some kind. The evidence as to the old fence was that it constituted no encroachment and therefore is not to be considered. The deed from Ayers and wife to Garrison conveys the lot and building. But when Garrison and wife conveyed to the defendant, Annie E. Smith, then for the first time buildings are referred to and conveyed. The other buildings evidently were erected after Ayers and wife sold to Garrison.

It would have been a very powerful circumstance tending to show the intention of the grantor and the falsity of the particular description, if evidence had been adduced showing that a certain dwelling house,' for instance, or other building had been conveyed to Ayers and Garrison by Scultatus and it had been further shown that this dwelling house was at the time of the conveyance located on the ten foot strip now here in controversy.

We are asked to infer that such was the case in the face of a total absence of evidence. which must have been easily available if it existed.

The record is meagre, painfully so, but as it stands here we can see no error in the trial court’s judgment.

It seems hardly necessary to add to what has been ■shown above as indicative of the grantor’s intention. ■A great deal might have been shown in this case, which was not shown, and we might indulge in conjecture, and conceive a situation which is working an extreme hardship upon the defendant. For instance, a particular dwelling house might have been conveyed, and it m'ght have been located on the ten foot strip, and the grantor might have been present when Ayers and Garrison located their lot and acquiesced in and agreed to the location, or he may have become acquainted with the location they made afterwards includ ng the ten foot strip and acquiesced in it; but the record shows none of these things, and so we must look to the deed and the situation of the parties, at the time of the execution of the deed, as revealed by the record, to ascertain their intention.

From all the foregoing it clearly appears, we think, that the preponderance of the evidence, as disclosed by the record, is with the plaintiff. We have weighed the defendant’s claim of title to the land in dispute in the balance and it has been found wanting. No error is shown in the judgment of the trial court to the prejudice of the defendant.

In reference to the error of the trial court in rendering judgment for lot 21, and the ten foot strip in controversy, there being sufficient in the record before this court to enable it to render a proper judgment (Albert v. Holt, 137 Va. 5, 119 S. E. 120), the judgment will be amended so as to exclude lot 21 from recovery by the plaintiff and to include the ten foot lot in controversy, and as amended will be affirmed.

Affirmed.