Billingsley v. Stutler
| Decision Date | 29 November 1902 |
| Citation | 52 W.Va. 92 |
| Parties | Morgan Billingsley v. Wm. A. Stutler. |
| Court | West Virginia Supreme Court |
Unlawful Detainee! Summons.
The property as described in a deed of conveyance and which can he made certain by the sheriff in executing a writ of possession, is a sufficient description in a summons of unlawful entry and detainer. (p. 93).
2. Parol Evidence Misnomer.
Parol evidence to show that a deed absolute on its face was intended as a mortgage is not admissible in a suit at law. p. 94).
3. Unlawful Detainee Limitation Ejectment.
To sustain an action of unlawful entry and detainer, the plaintiff must show that his right of action accrued within three years from the commencement of his action, otherwise he will be remitted to his action of ejectment. (p. 95).
Error to Circuit Court, Marion County.
Action by Morgan Billingsley against William A. Stutler and others. Judgment for plaintiff, and defendants bring error.
Reversed.
C. H. Leeds, for plaintiffs in error.
F. T. Martin and U. N. Arnett, Jr., for defendant in error.
Dent, President:
This is an action of unlawful detainer instituted by Morgan Billingsley v. William Stutter and others, in the circuit court of Marion County, for the possession of a certain tract of land in the possession of the defendants. It resulted in a judgment in favor of the plaintiff. The defendants obtained a writ of error.
The first error assigned is, that the land is not sufficiently described in the summons. The description strictly follows that contained in the conveyance, and is therefore sufficient as held in the case of Simpkins v. White, et al., 43 W. Va. 126.
There is no doubt but the sheriff, with the aid of the plaintiff, could easily have ousted the defendants and given possession of the right land.
The second error assigned, is, that the court refused to sustain defendant's motion to strike out the plaintiff's evidence. This error was waived by the defendant proceeding with the introduction of other evidence after the motion was overruled. Trump v. Tidewater Coal and Coke Co., 46 W. Va. 238 (32 S. E. 1035); Core v. Railroad Co., 38 W. Va. 456 (18 S. E. 596).
The third assignment will be considered with the fifth, sixth, etc.
The fourth assignment is because the court refused to allow the defendant to show on cross-examination of plaintiff that the deed from the defendants to the plaintiff was intended to be a mortgage and not an absolute conveyance. If there is any case in which this would be proper, this would be one for the purpose not of overthrowing the deed but to show the character of defendants possession But the rule in this State is enforced in all its strictness, that, at law, no evidence will be received, to add, subtract from or in any manner to vary or qualify an executed deed either in its terms or legal import. Buena Vista Co. v. Billinger, 48 W. Va. 382 (37 S. E. 583); Knoivlton v. Campbell, Id. 294, (37 S. E. 581); Howell v. Better, 41 W. Ya. 610, (24 S. E. 646); 21 Am. & En. En. Law (2 Ed.) 1080; 20 Am. & En. En. Law (2 Ed.) 949.
The rule is modified in Pennsylvania and probably other states, but not in this State. 21 Am. & En. En. Law (2 Ed.) 1083.
The rule is otherwise in equity. 20 Am. & En. En. Law (2 Ed.) 950; Shank v. Groff, et al., 43 W. Ya. 337; McNeels Exrs. v. Huldridge, 34 W. Ya. 748, (12 S. E. 857); Gilchrist v. Berwick, 33 W. Ya. 168, (10 S. E. 371).
The third and fifth assignments of error together with the various others not argued by counsel, while relating to the evidence and instructions given, involve but a single question and this is, was this suit instituted within three years after the right to bring the same accrued. If this question is answered in the affirmative, the judgment must be affirmed, although the court may have permitted illegal evidence to go to the jury. If in the negative, the judgment must be reversed and a new trial awarded.
The necessary facts to determine this question are few and simple. On the 22d day of February, 1898, the defendants jointly with Yincent Stutler, now deceased, in consideration of certain indebtedness, executed to the plaintiff, an absolute conveyance for the property in controversy. This deed, which was accepted and introduced by the plaintiff, contains a recital that the land is now in possession of the grantors, meaning the present defendants and Yincent Stutler, deceased. There was no provision for the change of possession and while the execution of the deed, changes the right to, it does not change the actual possession. The grantors were joint owners of the property, and hence the possession of any one of them was the possession of all.
The property thus remained until the death of Vincent Stutler in August, 1899. On the 30th day of October, 1901, this suit was instituted by the plaintiff against the surviving grantors, being more than...
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