Brunswick Land Corp. v. Perkinson

• Decision Date: 30 April 1926
• Citation: 146 Va. 695
• Parties: BRUNSWICK LAND CORPORATION v. C. H. PERKINSON, ET AL.
• Court: Virginia Supreme Court

Page 695

146 Va. 695

BRUNSWICK LAND CORPORATION v. C. H. PERKINSON, ET AL.

Supreme Court of Virginia, Richmond.

April 30, 1926.

1. BOUNDARIES — Proceeding Under Section 5490 of the Code of 1919 — Principles of Law Applicable the Same as in an Action of Ejectment. — Where in a proceeding under the statute (section 5490 of the Code of 1919) to establish a boundary line the title and right of possession of the coterminous owners is brought into dispute by the pleadings, the same principles of law are applicable as would be applicable to the same subject in an action of ejectment.

2. BOUNDARIES — Section 5490 of the Code of 1919 — Defendant not Claiming Title or Possession to Land Within Survey Set Forth in Plaintiff's Title Papers — Location of Survey on the Ground — Question for Jury — Case at Bar. — In the instant case, a proceeding under the statute (section 5490 of the Code of 1919) to ascertain a boundary line, plaintiff in his petition did not claim title to any certain location on the ground. It only claimed such land as was contained within the survey set forth in its title papers, and asked that the boundary line between defendant's and its own be located and laid out accordingly. On the other hand, defendant, in his grounds of defense, did not claim title to or possession of any part of the land within plaintiff's survey, nor deny that the survey gave the true boundary, or that it does not extend to any certain location on the ground, or set up any other boundary. Defendant merely denied that plaintiff had possession of or a valid legal title to any of the land claimed in its petition. Both defendant and plaintiff asked the court to appoint surveyors to establish the boundary line between the two tracts.

Held: That the only question presented for determination in the case was the proper location on the ground of the survey described in plaintiff's petition and muniments of title, which question is purely one of fact for the jury.

3. EJECTMENT — Plaintiff Tracing Title to Commonwealth or Common Grantor — Jury Warranted in Presuming a Grant. — The general rule is that a plaintiff in ejectment must recover on the strength of his own title, and, when he relies solely on his paper title, must trace it either from the Commonwealth or other common grantor, but he is not required to do this when he shows such a state of facts as will warrant the jury in presuming a grant.

4. EJECTMENT — Prior Peaceful Possession by Plaintiff — Prima Facie Evidence of Ownership. — The prior peaceful possession by a plaintiff in ejectment or those under whom he holds, claiming to be the owner in fee, if proved, is prima facie evidence of ownership and seisin and is sufficient to authorize recovery unless the defendant shows a better title in himself or another.

5. EJECTMENT — Outstanding Title — Present, Subsisting Legal Title. — An outstanding title, sufficient to defeat a recovery in an action of ejectment, must be a present, subsisting, and operative legal title, upon which the owner could recover if asserting it by action.

6. EJECTMENT — Plaintiff Tracing Title to Commonwealth or Common Grantor — Proof of Actual Possession — Grant from Some One who Held Possession. — In ejectment, when one proves a perfect chain of paper title from its original source, no proof of actual possession at all is required. In such event the presumption would be all sufficient, and the title would be a complete and perfect title, but when this is not done, a title prima facie is shown by a grant from some one who held possession, or by such grant and possession under it by the grantee. As against a mere technical objection by anyone who, at the time the objection is made, appears to be a mere stranger to the title, such a prima facie title would seem quite sufficient. If the objector has a better or stronger title than the prima facie title proved, then he must show it, and until he does the prima facie title prevails.

7. BOUNDARIES — Proceeding to Ascertain Boundaries — Title of Plaintiff — Tracing Title to Commonwealth or Common Grantor — Where one of Plaintiff's Predecessors Took Actual Possession of the Land — Case at Bar. — In the instant case, a proceeding to determine the boundary line between plaintiff and defendant under section 5490 of the Code of 1919, one of plaintiff's predecessors in title took actual possession of the land claimed by plaintiff in its petition and cut and removed the large timber thereon. Plaintiff and its predecessors held possession of the land for over fifty years under their muniments of title.

Held: That this vested in plaintiff such a prima facie title to the land as would entitle it to recover against the defendant in an action of ejectment, even though plaintiff had been out of possession at the time of the instituted of such action; and that it was not incumbent upon plaintiff under the circumstances to establish a perfect legal title to the land described in its petition by connecting it with a grant from the Commonwealth.

8. EJECTMENT — Distinguished from a Proceeding to Ascertain Boundary Lines Under Section 5490 of the Code of 1919 — Plaintiff in Possession. — An important distinction exists between a proceeding to establish a boundary line and an action of ejectment, in that an action of ejectment will not lie when the plaintiff is in possession, whereas a proceeding to establish a boundary line may be brought whether the plaintiff is in possession or not. They are, therefore, not co-extensive in that respect.

9. BOUNDARIES — Proceeding to Ascertain Boundary Lines Under Section 5490 of the Code of 1919 — Plaintiff's Title — Outstanding Title — Case at Bar. — In the instant case, a proceeding to determine the boundary line between plaintiff and defendant, defendant failed to show a present and subsisting outstanding title in himself or any other person to any of the land lying within the boundaries claimed by the plaintiff and established by the jury. He was in fact a mere stranger to the title.

Held: That a prima facie title shown by the plaintiff was all that could be required against defendant, a coterminous landowner, who has neither possession, nor has made any pretense of showing an outstanding title in himself or any other person to the land found by the jury to be embraced in the description given by plaintiff's deed.

10. BOUNDARIES — Proceeding to Ascertain Boundary Lines between Plaintiff and Defendant Under Section 5490 of the Code of 1919 — Defendant a Stranger to the Title — Burden of Proof — Case at Bar. — While in a proceeding to establish the boundary line between plaintiff and defendant the burden was upon the plaintiff to establish the boundary line between the two tracts to the satisfaction of the jury, the defendant, a mere stranger in title to the tract, according to the principles of ejectment, could call upon the plaintiff to prove a perfect chain of title in order to have its boundary line established, and had no right to have the verdict of the jury avoided because of its failure to establish such a title.

11. BOUNDARIES — Proceeding to Establish Boundaries Under Section 5490 of the Code of 1919 — Sufficiency of the Evidence to Establish True Location — Report of Surveyors Appointed by the Court — Discrepancy in Acreage — Case at Bar. — In the instant case under the evidence the jury were justified in finding that the true location of the boundary line between plaintiff and defendant was that established by a survey made by surveyors appointed by the court at the request of both parties, who had several conceded monuments to guide them in their work. The evidence adduced by the defendant in an attempt to prove that the boundary line fixed by the surveyors was not the true one and to set up a line of his own, was too uncertain and self-contradictory to constitute any substantial conflict with the evidence given by the surveyors, or to have been given serious consideration by the jury. The mere fact that the deed to plaintiff's predecessor described the tract as containing 600 acres, whereas the survey made under the direction of the court found it to contain 535 acres is not of itself sufficient to prove that the boundary established by the surveyors appointed by the court was incorrect.

12. BOUNDARIES — Proceeding Under Section 5490 of the Code of 1919 — Survey by Surveyors Appointed by the Court — Less Acreage than that Called for by Deed to Plaintiff's Predecessor — Verdict for Plaintiff — Case at Bar. — In the instant case, a proceeding to establish the boundary between defendant and plaintiff, the court at the request of both parties appointed surveyors to locate the line. The survey of the surveyors showed that there was less acreage in plaintiff's tract than that called for in the deed to plaintiff's predecessor; but the defendant was not prejudiced by this fact. The most that can be said of it is that it was a circumstance to be considered by the jury along with all the other evidence in the case, and the jury having found the line established by the surveyors to be the correct one, and there being sufficient evidence to support it, their verdict is conclusive.

13. BOUNDARIES — Acreage as Evidence of Location — Lines Located in Accordance with the Calls. — The acreage called for by the title papers, while a circumstance to be considered in identifying the land, is the least reliable of all the evidence of its true location. Where the boundary lines called for in the writings evidencing the title are located on the ground in accordance with such calls, those lines fix the location of the land, irrespective of the acreage called for in such writings.

14. Boundaries — Evidence — Invalid Deeds. — Though a deed may be invalid to pass the title it purports to convey, it is admissible in evidence as a link in plaintiff's chain of title, to show the bounds of the land claimed by him, and the extent of his possession.

15. BOUNDARIES — Proceeding to...