Clements v. Kyles

• Decision Date: 29 August 1856
• Citation: 54 Va. 468
• Parties: CLEMENTS v. KYLES.
• Court: Virginia Supreme Court

54 Va. 468

CLEMENTS v. KYLES.

Supreme Court of Appeals of Virginia.

August 29, 1856

1. In a case of caveat the caveator should state in his caveat the grounds on which he claims to have the better right to the land in controversy. And if this is not done the caveatee may either move the court to dismiss the caveat, or to require the caveator to file a specification of the alleged better right on which his claim is founded. But after the jury is sworn to ascertain the facts, it is then too late to object to the form of the caveat.

2. In a case of caveat the caveator claims under a patent issued to W in 1756, which does not refer to any survey. In order to show that the patent was founded on a survey, the caveator offers in evidence a copy from the books of the surveyor of Augusta county, of a certificate of a survey and plat made for W dated in November 1749. The certificate itself does not contain the calls for course and distance or other marks, but these are given on the plat, and they agreed with the grant in its general and locative calls. It is competent evidence for the purpose for which it is offered.

3. To prove the boundaries of W's patent the caveators offer the deposition of a witness who had purchased a part of the land included in that patent from a party claiming under it but not any part of the land claimed by the caveators. The witness then had a controversy with a third person in which it was important to him to establish the boundaries of said patent. The deposition had been taken in a caveat between the ancestor of the caveators and the same caveatees, in relation to the same land, in which the said caveator had suffered a nonsuit. HELD:

1. He is a competent witness.

2. The deposition is competent testimony.

3. The statement of a person living on the land at the time, made many years before the trial, at which time he was dead pointing out to the witness two of the corners called for in W's patent, is not competent evidence; he not having been the surveyor or chain carrier at the making of the survey, or owner of that or adjoining lands calling for the same boundaries, or having any motive or interest to enquire and ascertain the facts.

4. Surveys made many years after W's survey, and by a different surveyor, are not competent evidence as to the boundaries of W's survey.

5. Three or four corners of a large survey are ascertained; but between these ascertained corners, the patent calls for several lines and courses. In fixing the boundaries of the land, the lines calling for these ascertained corners must be run thereto, though this may require a variation of both course and distance; but where a corner is called for which is not found, the course and distance called for in the patent must govern; and an average allowance of variation in each course and line called for between the ascertained corners is not to be made.

6. The land in controversy lying in the western part of a large survey, it is error to instruct the jury that if they are satisfied that certain specified corners of the survey are established, and the courses of the patent between these corners are correctly laid down upon the plat of the survey made in the cause, it is all that is necessary for them to ascertain in this suit; as it is in that portion of said patent that the survey of the caveatees lies, as appears by the plat, and it is only to that portion of said land that they have set up title.

7. The will of W having been made in 1746, before the survey or patent to him, the land embraced in said patent did not pass by his will to Mrs. W, but descended to his heir at law.

8. A case in which the cause was sent back to the court below to have a more perfect finding of the facts upon which the rights of the parties depend.

In April 1849 William Kyle and others, devisees of James Kyle deceased, filed with the register of the land office a caveat to prevent the issue of a patent to Orville Anderson and Franklin Clements for a tract of land of one thousand acres in the county of Carroll. The only ground stated in the caveat on which they opposed the issue of the patent is that they claimed to hold the land by an older and better title.

The caveatees without making an objection to the manner in which the caveators had set out the grounds of their objection to the issue of the patent, went to trial; and the jury found the facts on which the caveators rested their title. These are stated by Judge LEE in his opinion. The caveators claimed the legal title to the land in controversy under a patent issued to James Wood on the 16th of August 1756. This patent gave the location and boundaries of the land, but did not refer to any survey on which it was founded: And the caveatees having stated that they should, from the facts and circumstances which would appear in evidence, insist that no actual survey of the land granted to James Wood had ever been made, the caveators offered in evidence the copy from the surveyor's books of Augusta county of a certificate of a survey made for James Wood, and of the plat of the survey. These, in the location and boundaries, agreed with the patent, and it bore date the 20th of November 1749. The certificate of the present surveyor of Augusta county followed the copy of the original certificate of survey, and was followed by the plat. The caveatees objected to the evidence; but the court overruled the objection; and the caveatees excepted.

In the progress of the cause the caveators offered in evidence the deposition of William Kenny, which related to the boundaries of Wood's patent. He had purchased a part of the land included in that patent from a party claiming under it, but not any part of the land claimed by the caveators. He was interested to establish the boundaries of the patent; and then had a controversy with a third person in which the establishment of these boundaries was important to him. This deposition had been taken in a caveat case between James Kyle, under whom the present caveators claimed, and the same caveatees, in relation to the same land, in which the caveator suffered a nonsuit. The caveatees objected to the evidence because it was not taken in the same cause, and on the ground that the witness was interested, and thus incompetent. They also objected to the answers given to the second, thirteenth, fifteenth and sixteenth questions. But the court overruled the first and second objections, and the objection to the answer to the second question, and sustained it as to the others. Whereupon the caveatees again excepted.

The second question and the answer to it are as follows:

" Are you acquainted with any of the corners and lines of the said survey?" (the Wood survey said to have been granted to James Wood.)

Answer. " When we moved here" (witness had said he had been living on the Wood survey forty-five years) " or some time thereafter John Cock" (who had left the country for Kentucky between forty and fifty years since, then a middle aged man, and it had been reported for a number of years that he was dead,) " who was then living on the same land took me and my father to the dug corner, and then to the burnt corner, and told us they were both corners to Wood's land."

After the caveators had introduced in evidence the patent to Wood under which they claim, and the report and plat of the surveyor, made in the cause; and had also introduced evidence tending to prove that certain lines on the plat were the true boundaries called for in the patent; and that most of the original corner and line trees of said land had been destroyed some years previous to the survey of the caveatees to prevent the identification of the corners and lines of the land embraced in the patent, offered in evidence, as tending to establish the true boundaries of said land, a patent dated the 30th of August 1796, to Nathaniel Frisbie, for two thousand two hundred acres lying in the county of Grayson. This patent called for streams called for in Wood's patent, and one of its corners was called for as on the side of a hill near Wood's line. They also offered in evidence, for the same purpose, a patent bearing date the 21st of June 1813, to Churchill Jones, for two hundred acres of land in the county of Grayson. The caveatees objected to the introduction of this evidence; but the court overruled the objection; and they again excepted.

After the jury had retired to consider of their verdict, they returned into court and enquired what it would be proper for them to do if they should be of opinion that three or four corners of the survey were established? In reply to this question the court said, it could only say, that if they should be satisfied that particular corners of the survey of twenty-eight hundred acres made for James Wood and patented to him, were established by the evidence, that the lines must be so run as to go to said corners, although to run them thereto might require a variation in the course and distance: That in making said variation there ought to be a fair allowance made in each line and course if necessary.

The court further instructed the jury by reference to the plat made in the cause by the surveyor, that if they should be satisfied from the evidence that certain specified corners were established as corners of the twenty-eight hundred acre survey, and that the surveyor had laid down the courses of Wood's patent therefor in his plat between these specified corners as designated by certain lines, correctly it was all that was necessary for them to ascertain in this suit; as it was in that portion of said patent that the survey of the caveatees lay, as appeared by the plat, and it was only to that portion of said land that the caveatees had set up title. And that it was not...