Billups v. Woolridge
| Decision Date | 20 March 1917 |
| Docket Number | 3073. |
| Citation | 91 S.E. 1082,80 W.Va. 13 |
| Parties | BILLUPS ET AL. v. WOOLRIDGE. |
| Court | West Virginia Supreme Court |
Submitted March 13, 1917.
Syllabus by the Court.
If the testimony of a witness be good in part and responsive, and another part bad and not responsive, objection thereto or a motion to strike out should not be general as to all, but limited to the objectionable part, otherwise the objection or motion should be overruled.
Where on the trial of the title to land the patent and deeds of plaintiffs call for corners or lines of a senior patent under which defendant claims, and only the junior patent is offered in evidence, and the line in controversy is a common line between the lands of the conflicting claimants, the defendant is not prejudiced by an instruction to the jury telling them that in endeavoring to locate the land described in the patent they shoud search for the footsteps of the surveyor in locating the survey upon which the patent was based.
Where on the trial of such action there was only slight variation in the testimony of the witnesses for the plaintiffs as to the exact point where a corner tree not found was in fact located, and the witnesses for defendant tended in some degree to locate the corner at a different place, an instruction to the jury along with other instructions submitting the fact to the jury, and which told them that if they believed the corner stood at the point designated by the plaintiffs' witness and others, was not subject to the objection that it impliedly told the jury that the one witness was corroborated by others as to the location of the corner.
Plaintiffs' instruction number eight in this case, on the subject of adverse possession, if amenable to the criticism of defendant, that it told the jury plaintiffs were owners of the land unless defendant had acquired title by adverse possession, and that it in effect told the jury that possession which is not hostile in its inception can never become so, as applied to the facts in this case, constituted harmless error not warranting reversal of the judgment.
Error to Circuit Court, McDowell County.
Ejectment by Sallie M. Billups and others against Grat Woolridge. Judgment for plaintiffs, and defendant brings error. Affirmed.
Litz & Harman and Joseph M. Crockett, all of Welch, for plaintiff in error.
Anderson Strother, Hughes & Curd, of Welch, for defendants in error.
In ejectment, of the land sued for, about seventy acres defendant entered a disclaimer to all except about 3.9 acres.
On the trial plaintiffs obtained a verdict and judgment for all the land sued for, and to that judgment defendant sued out in this court the present writ of error.
The material fact in controversy on the trial was the true location of one of the lines between the adjoining tracts. Plaintiffs claimed under a patent from the Commonwealth for 777 acres, dated July 1, 1856. It is conceded, and the evidence tends to show that defendant claims under a prior grant from the Commonwealth for a tract of 104 acres, although that patent was not introduced in evidence, the only title papers introduced by defendant being two recent deeds executed to him, one dated November 11 1907, from J. S. and Mary Brewster, describing by metes and bounds a tract of 104 acres, the other dated January 6, 1910, from Emily C. Myers, describing two tracts, the first calling for 33 1/2 acres, the second for 15 acres, neither of said deeds making any specific reference to the original patent for the 104 acres. The plaintiffs showed a perfect chain of title back to the patent for the tract of 777 acres, and each side offered evidence as to the location of the lines and corners called for, and also on the subject of adverse possession, with the result already indicated.
The land in controversy lies on Big Creek, and the call in the title papers of the plaintiffs for the line in controversy, running from the poplar on the side of a hill near said creek, is:
"Thence S. 40~ E. 79 poles crossing Big Creek three times to a large spruce pine and beech opposite the lower end of the Crockett Bottom."
This line with the two preceding lines of the 777 acre patent are described as being coincident with the lines of the 104 acre survey; and the two deeds introduced in evidence by the defendant describe the line in controversy in the same way, and as crossing Big Creek three times; so that there is no interlock, and the principal question submitted to the jury was the true location of this boundary line.
The points of error relied on relate to the admission and rejection of evidence, and to certain of the instructions requested by plaintiffs.
The first point is that the court, over defendant's objection, permitted T. R. Myers and W. H. Bowling to testify that John W. Marrs, then deceased, and under whom plaintiffs claimed, had told the witnesses that the property in controversy belonged to him. This objection was based on the rule of evidence affirmed in our cases of Corbleys v. Ripley, 22 W.Va. 154, 46 Am. Rep. 502, and High's Heirs v. Pancake, 42 W.Va. 602, 26 S.E. 536, and in certain Virginia cases, to the effect that the declaration of a deceased former owner as to the identity of a particular corner or boundary line of land owned by him, though otherwise admissible, are inadmissible, if at the time they were made the facts and circumstances and his situation show that he had an interest to make false representations respecting the same, and that a mere general statement or claim, without reference to corners or marked lines, that certain land was his land, or where the lines would run, or that he owned the land, are never admissible.
The law of these cases is not controverted; but it is contended that the point of objection is not well founded in the evidence. The question propounded by counsel to T. R. Myers was:
"Did your brother, Ballard Myers, ever make any statement to you about the location of that land with respect to his stable through there?"
Over objection, the witness answered:
That part of the answer relating to what Marrs is supposed to have told the witness is the part now objected to. It will be observed that the question did not call for this part of the answer; and the motion of the defendant to strike out was applied to the whole of the answer and not to the objectionable part of it, and which was entirely voluntary on the part of the witness. In such cases the rule is that if it is...
To continue reading
Request your trial