Kuhn v. Chesapeake & O. Ry. Co.

Citation118 F.2d 400
Decision Date10 March 1941
Docket NumberNo. 4720.,4720.
PartiesKUHN et al. v. CHESAPEAKE & O. RY. CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Alfred D. Preston, of Beckley, W. Va., for appellants.

C. W. Strickling, of Huntington, W. Va. (Tom T. Baker, and Fitzpatrick, Brown & Davis, all of Huntington, W. Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment for plaintiff in an action of ejectment. The land in controversy consists of about 9 acres lying on Big Coal River in West Virginia and formerly constituting a small island between two branches of that river. It was part of a larger tract of land which formerly belonged to one Andrew Jarrell and which was divided in the year 1891, the portion on the left of the river, going down, being conveyed to the predecessor in title of plaintiff and the portion on the right to the predecessors in title of defendants. In the course of a flood in the year 1916 the right branch of the river was filled with earth and debris and little if any water has flowed in it since. Plaintiff contends that the dividing line followed this branch of the river and that plaintiff therefore owns the land in controversy. Defendants contend that the line followed the left branch of the river, and that the land in controversy accordingly belongs to them. They rely also on adverse possession. The court below submitted the case to the jury on both questions thus presented; and from verdict for plaintiff, the defendants have appealed.

Four questions are presented by the appeal: (1) whether verdict should have been directed for defendants; (2) whether the court erred in instructing the jury that the location of the division line depended on which was the main channel of the river in 1891; (3) whether the court erred in instructing the jury that they should disregard evidence as to adverse possession prior to a deed executed to Pearl Carter in 1926 and in excluding evidence of adverse possession prior thereto; and (4) whether the court erred in instructing the jury that a deed from L. B. Kuhn and D. M. Holstein to the defendant Pearlie Kuhn in 1927 was fraudulent.

The Motion for Directed Verdict.

As heretofore stated, the land in controversy was part of a large tract originally belonging to one Andrew Jarrell. In 1891, he conveyed the portion of the tract lying to the right of the river and containing 122 acres to Nancy M. Kuhn, mother of the defendant P. H. Kuhn, and on the same day conveyed the portion lying to the left to Cochran and Hull, the river forming the boundary between the tracts so conveyed, and the tract of Cochran and Hull, under whom plaintiff claims, being described as beginning "where said Nancy M. Kuhn's line strikes the river on the north-east side thereof". The branching of the river which is the principal basis of this controversy occurs near this point. The closing of the right branch of the river in 1916 left the island embracing the land here in controversy on the Kuhn side of the only remaining branch; and one of defendants' contentions on their motion for directed verdict is that the last deed under which plaintiff claims, which was executed in 1923 and which calls for the river as a boundary, must be construed with reference to the course of the river as of that date, and that, when so construed, it does not cover the land in controversy. They contend also that both this deed and the deed of Jarrell to Cochran and Hull are void for indefiniteness of description, if reference be not made to the maps to which they refer, and that reference may not be made to the maps because they were not attached to or recorded with the deeds.

We think that these contentions are wholly without merit. When reference is made to the maps referred to in the deeds, the description is sufficiently specific; and the rule is well settled in West Virginia, as it is elsewhere, that "a deed, for a description of the land, may refer to another deed or map, and the deed or map is considered as incorporated in the deed itself for description of the land." United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 33 S.E. 342; Warren v. Boggs, 90 W. Va. 329, 111 S.E. 331. The call for the river in the deed executed in 1923 must be construed with the other calls, which show that the intent was to convey to the river constituting the line of the property of the Kuhn heirs. There is consequently nothing in the contention that the deeds relied upon by plaintiff do not cover the locus in quo, if the boundary in the deeds from Jarrell to Nancy Kuhn and Cochran and Hull followed the right and not the left branch of the river, a question which was properly left to the jury.

Another contention of defendants on their motion for directed verdict is that plaintiff failed to show that the parties were claiming title from a common source, notwithstanding the showing that the land was originally owned by Jarrell, that plaintiff claimed under Jarrell through mesne conveyances and that defendant P. H. Kuhn deraigned title as devisee of his mother Nancy Kuhn through the deed executed by Jarrell to her. The basis of this contention is that in 1926 the defendants P. H. Kuhn and Pearlie Kuhn conveyed the locus in quo to one Pearl Carter, trustee; that in 1930 the land was sold for delinquent taxes due by Pearl Carter, as trustee, and was purchased by defendant Pearlie Kuhn; and that Pearlie Kuhn paid taxes on the land and was in adverse possession thereof under color of title for more than five years prior to the payment of taxes by Pearl Carter in 1937. This claim to adverse possession under color of title is based upon the following facts: In 1927, the defendant P. H. Kuhn, notwithstanding his conveyance to Pearl Carter in the preceding year, procured two strangers to the title, L. B. Kuhn and D. M. Holstein, to make a deed covering the locus in quo to his wife the defendant Pearlie Kuhn. Following this conveyance, the evidence shows that he continued in possession until the institution of suit in 1938, and the argument is that his possession must be attributed to his wife because of the execution of the deed to her by Kuhn and Holstein. We think that there is nothing in this contention. The possession shown was not by Pearlie Kuhn, but by P. H. Kuhn, and his possession was a mere continuance of the possession which he had already been exercising as devisee of his mother and was in no sense the possession of his wife under the void deed from Kuhn and Holstein. In addition to this, both he and his wife knew that these grantors had no title; and they cannot, therefore, rely upon the deed from them as color of title. State v. King, 77 W.Va. 37, 87 S.E. 170, L.R.A.1918E, 104; Saxton v. Hunt, 20 N.J.L. 487. It is perfectly obvious that the injection of this void deed, which everyone knew to be void, cannot change the nature of defendants' claim so as to cast upon plaintiff the burden of proving title from the state instead of superior title from the common source.

Still another contention on the motion for directed verdict is that defendants acquired title to the locus in quo by the payment of taxes and the adverse possession heretofore mentioned, under Constitution of West Virginia Art. XIII, sec. 3, which provides: "All title to lands in this State heretofore forfeited, * * * to the State of Virginia, or this State, or purchased by either of said States at sales made for the non-payment of taxes * * *, vested and remaining in this state, shall be, and is hereby transferred to, and vested in any person * * *, for so much thereof as such person has, or shall have had actual continuous possession of, under color or claim of title for ten years, and who * * * shall have paid the State taxes thereon for any five years during such possession; or if there be no such person, then to any person * * * for so much of said land as such person shall have had claim to and actual continuous possession of, under color of title for any five successive years after the year 1865, and have paid...

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