Bowman v. Dewing 1

• Decision Date: 07 December 1901
• Court: West Virginia Supreme Court
• Parties: BOWMAN v. DEWING et al.1

40 S.E. 576

50 W.Va. 445

BOWMAN

v.DEWING et al.¹

Supreme Court of Appeals of West Virginia.

Dec. 7, 1901.

DEMURRER TO EVIDENCE—REAL. ESTATE-SALE—FORFEITED TITLE—PAYMENT OF TAXES.

1. On demurrer to evidence the rule in this state, as in Virginia, is to certify and consider the whole evidence as though on motion to set aside a verdict in favor of the demurree.

2. A sale made in 1843 of a tract of land under a forfeited title, which does not include or cover such land, is void; and a deed made by virtue thereof is also void, and can vest no title in the purchaser and those claiming under him, except such title as may be in the state at the date of such deed.

3. Section 3, Acts 1841-42, vests any forfeited title to a tract of land in any person having just title and claim to such land, legal or equitable, claimed, held, or derived from or under any grant of the commonwealth bearing date previous to the 1st day of January, 1843, who shall have discharged all taxes duly assessed and charged against him upon such lands, and all taxes that ought to have been assessed or charged thereon from the time that he acquired title thereto, whether legal or equitable.

(Syllabus by the Court.)

Error to circuit court, Randolph county; Jno. Homer Holt, Judge.

Action by W. W. Bowman against Dewing & Sons. From a judgment for defendants, plaintiff brings error. Affirmed.

L. D. & J. F. Strader and W. B. Maxwell, for plaintiff in error.

E. D. Talbott and W. T. Ice, for defendants in error.

DENT, J. W. W. Bowman complains of a judgment of the circuit court of Randolph county rendered against him in an action of ejectment the 2d day of February, 1898, in favor of Dewing & Sons, on a demurrer by him to the evidence. This case was here once before. 37 W. Va. 117, 16 S. E. 440. Since then two trials have been had, both resulting in favor of the defendants. Defendants questioned the right of the plaintiff to compel them to join in his demurrer to the evidence, but, as the court's ruling was in their favor, they have now no complaint on this score, unless this court be of the opinion the demurrer was improperly determined. According to the holdings of the courts of other states, a demurrer to evidence in a case of this character, where the affirmative of the issue is with the plaintiff, would be improper; it being held that a party on whom rests the burden of the issue cannot successfully demur to the evidence, as his own evidence cannot be considered on demurrer. 6 Enc. Pl. & Prac. 440; Goodman v. Ford, 23 Miss. 592; Stiles v. Inman, 55 Miss. 469; Fritz v. Clark, 80 Ind. 591; Standley v. Insurance Co., 95 Ind. 254; Lyons v. Railroad Co., 101 Ind. 420; Pickel v. Isgrigg (C. C.) 6 Fed. 676. Such, however, has not been the practice in this state. The rule has been that either party may demur and that all the evidence must be certified and considered by the court giving the demurree the full benefit of all just inferences, and disregarding the demurrant's evidence wherein it conflicts with that of the demurree. It is true, this court held in the case of Bennett v. Perkins, 47 W. Va. 425, 35 S. E. 8 (second point in syllabus), that "either party has a right to demur to the evidence, but the demurrer is only applicable to the evidence of the party holding the affirmative of the issue." This is a departure in some degree from the former holdings of this court and is a rule that applies where only the evidence of the demurree is considered. In this state it has been long held that the demurrer should set out the whole evidence on both sides for the consideration of the court In most other states none but the evidence demurred to is set out or considered. So that the plaintiff can never safely demur to the defendant's evidence unless the defendant admits the plaintiff's case, and pleads in bar or avoidance thereof. In 6 Enc. Pl. & Prac. 444, it is said, under ''Title of Exception to the General Rule, " that: "In two states, where the practice of inserting all the evidence on both sides into the demurrer obtains, the rule is not quite so broad. The defendant [demurrant] is considered to have waived all his evidence which is contradictory to that of the other party, all evidence the credit 'of which is impeached, and all inferences from his evidence which do not necessarily flow from it." The two states which are an exception to the rule that "the demurrer is only applicable to the evidence of the party holding the affirmative of the issue" are Virginia and West Virginia. Green v. Judith, 5 Rand. 1; Muhleman v. Insurance Co., 6 W. Va. 508; Gunn v. Railroad Co., 42 W. Va. 676, 26 S. E. 546, 36 L. R. A. 575; Shaver v. Edgell, 48 W. Va. —, 37 S. E. 664; Mapel v. John, 42 W. Va. 30, 24 S. E. 608, 32 L. R. A. 800, 57 Am. St. Rep. 839; Talbott v. Railway Co., 42 W. Va. 560, 26 S. E. 311; Teel v. Railroad Co. (W. Va.) 38 S. E. 518. If the rule stated in Bennett v. Perkins, cited, is to be adopted in this state, the plaintiff, having the affirmative of the issue in an ejectment case, cannot demur to the defendant's evidence without waiving all his own evidence, and thus virtually allow the case to be decided against him; for he must recover on the strength of his own title, and without evidence he has no title. The proper rule on demurrer to evidence in this state appears to be that the court should consider the evidence on both sides as though the demurrer was a motion to set aside the verdict of a jury in favor of the demurree, and, if the court would not set aside such verdict on consideration of the whole evidence, it should overrule the demurrer and enter judgment for the demurree. Lewis v. Railway Co., 47 W. Va. 656, 35 S. E. 908, 81 Am. St. Rep. 816. In the present case the plaintiff, considering his title established by in-disputable evidence, demurred to the defendants' evidence as showing no sufficient defense to the suit This was not because the defendants had the affirmative of the issue, but plaintiff, having the affirmative, claimed he had fully established it, and that defendant's evidence was wholly insufficient to overcome the same. It is necessary, therefore, to examine the whole evidence, as on a motion to set aside the verdict of the jury, and say therefrom whether plaintiff is entitled to recover.

The land sued for is a tract of 1, 195 acres lying on the east side of the Shaver's Fork of Cheat river, in Randolph county. The plaintiff derives his title from a deed made by David Goff, commissioner, to Ely Butcher, dated the 24th day of February, 1844, conveying a tract of 1, 000 acres, supposed to be covered or included in a grant of 100, 000 acres forfeited in the name of William Ely. It turned out, however, in proof, and was admitted, that the land in controversy was not covered by the Ely grant, and was not forfeited therewith. The plaintiff attempted to cure this defect by showing that a grant of 100, 000 acres to Wm. Bower and Wm. Breckenridge in the year 1796, which included the tract in controversy, was not on the assessors' books from 1829 to 1840, Inclusive. The object of this was to show the same was forfeited to the state, and by virtue of the deed from Goff, commissioner, and section 2, Acts 1842, was vested in the plaintiff. The defendants show, in response to this evidence, that their title is derived through a grant to Richard Smith, dated 10th November, 1795. for 31.000 acres, covering the land in controversy, which...