Brunswick Land Corp. v. Perkinson Et Ux

• Decision Date: 30 April 1926
• Citation: 132 S.E. 853
• Parties: BRUNSWICK LAND CORPORATION. v. PERKINSON et ux.
• Court: Virginia Supreme Court

132 S.E. 853

BRUNSWICK LAND CORPORATION.

v.PERKINSON et ux.

Special Court of Appeals of Virginia.

April 30, 1926.

Error to Circuit Court, Brunswick County.

Petition by the Brunswick Land Corporation against C. H. Perkinson and wife for the establishment of a boundary. Verdict was rendered for plaintiff, which was, on motion, set aside and annulled, and final judgment entered for defendants, and plaintiff brings error. Reversed and remanded with directions.

Nat. Turnbull, of Lawrenceville, Irby Turn-bull, of Boydton, and L. J. Hammack, of Lawrenceville, for plaintiff in error.

Buford & Raney, of Lawrenceville, for defendants in error.

CHINN, J. On June 6, 1922, Brunswick Land Corporation filed its petition in the court below against C. H. Perkinson and Irene M. Perkinson, his wife, asking that the true boundary line between the coterminous lands of the respective parties be ascertained and established by the court pursuant to the provisions of section 5490 of the Code.

The petition alleges that petitioner is the owner in fee simple of a tract of land containing 511% acres, acquired by deed from W. T. Harding and wife, dated March 19, 1919, being the same tract of land which was conveyed to one Hiram Bingham by deed from Thos. W. Goodrich, commissioner, dated December 22, 1S70, and designated and described by the metes and bounds, courses and distances of a survey set forth in said deed. The petition sets out the intermediate conveyances relied on to make up the chain of title between Bingham and Harding, and also the descriptive survey of the land as contained in the said deed from Goodrich, commissioner, to Bingham.

The petition also alleges that the defendant C. H. Perkinson is the owner of a tract of land, acquired by deed from W. W. Doyle andwife on April 5, 1919, which adjoins the above-described land of petitioner on the western side thereof, and that a dispute had arisen between said Perkinson and petitioner as to the correct boundary line between their respective tracts. In the written grounds of defense filed by defendants in answer to the petition, Mrs. Perkinson disclaimed any interest, except a contingent right of dower in such land as her husband may own; the other grounds of defense being stated as follows:

"(2) The defendant C. H. Perkinson says that he denies that the plaintiff has ever had possession of the land claimed by it in said petition, and he further denies that the plaintiff has any valid legal title to the land claimed by it in said petition.

"(3) The said C. H. Perkinson further says that he is not guilty of having entered upon, or of unlawfully withholding from the plaintiff, any of the land mentioned in said petition to which the said plaintiff has any valid legal title."

On June 29, 1922, the court entered the following order:

"This day came the plaintiff, Brunswick Land Corporation, as well as the defendants, C. H. Perkinson and Irene M. Perkinson, his wife, by counsel, and jointly moved the court to order a survey of the tracts of land in dispute in these proceedings in order to establish the true boundary lines in accordance with the deeds set out in the petition and the grounds of defense.

"On consideration whereof the court, being advised from the pleadings filed in this case and from the joint motion of the plaintiff and defendants in this case that a survey of said disputed boundary line is necessary, doth adjudge and order that W. T. Drummond and W. C. Rives, surveyors, do forthwith go upon the said tracts of land and establish the true boundary line between the Bingham tract of land owned by the plaintiff, Brunswick Land Corporation, which was conveyed to the said Brunswick Land Corporation by deed of W. T. Harding and wife dated March 19, 1919, and of record in the clerk's office of Brunswick county, Va., in Deed Book 71 at page 293 as set out in the petition in this case, and that portion of the Spencer tract now owned by the defendant C. H. Perkinson, which was conveyed to the said C. H. Perkinson by deed of W. W. Doyle and wife dated April 5, 1919, and of record in the clerk's office of Brunswick county, Va., in Deed Book 71 at page 339, and that the said surveyors do cause a map of said tracts of land in dispute to be made, showing the true boundary lines, and report to this court at the next term thereof, together with the maps."

On September 5, 1922, the surveyors appointed by the court returned the following report:

"Agreeably to an order issued at your June, 1922, term in the suit of the Brunswick Land Corporation, Plaintiff, v. C. H. Perkinson and Irene M. Perkinson, his Wife, Defendants:

"We, the undersigned surveyors, appointed under said order, have gone upon the property and established the line mentioned and described in said order, and herewith return a plat showing the said fine and the property known as the Bingham tract and owned by the Brunswick Land Corporation, also that portion of the Spencer tract adjoining the said Bingham tract, and owned by the said C. H. Perkinson and Irene M. Perkinson, same to be attached hereto and made a part of this report as ordered by your honor in said proceedings.

"Respectfully submitted, and signed by us this 2d day of September, 1922.

"W. T. Drummond,

"W. C. Rives, Surveyors."

At a subsequent term of the court a jury was impanelled to try the case, who returned the following verdict:

"We, the jury, agree that the correct lines of the Bingham tract is the lines established by W. T. Drummond and W. C. Rives, Surveyors, as shown by map dated August, 1922."

The defendant Perkinson thereupon moved the court to set aside the verdict and enter judgment in his favor upon the following grounds:

"(1) For errors in the admission and exclusion of evidence.

"(2) For errors in instructions given the jury by the court ex mero motu, and at the request of the plaintiff, and in refusing and amending instructions requested by the plaintiff.

"(3) Because the verdict is contrary to the law and the evidence, and is without evidence to support it.

"(4) That said verdict is not responsive to the issue, has no legal significance, and cannot be made the basis of a judgment."

Upon this motion the court "set aside and annulled" the verdict of the jury, and, "being of the opinion that there is sufficient evidence before the court to enable it to decide the case upon the merits, " entered final judgment for the defendant Perkinson.

The Brunswick Land Corporation is now here complaining of this action on the part of the trial court.

The parties will hereinafter be referred to according to their respective positions in the court below.

It appears that at the trial of the case the plaintiff only undertook to trace its title to the land claimed in the petition back to the deed of December 22, 1870, from Thos. W. Goodrich, commissioner, to Hiram Bingham, and it is contended by the defendant that the court was justified in setting aside the verdict and entering judgment in his favor for the reason that the law requires the plaintiff in a proceeding of this sort to prove a complete chain of title to a grant from the commonwealth, or to a common source, as in an action of ejectment.

It seems to be now well settled that, when, in a proceeding under the statute 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. Bradshaw v. Booth, 105 S. E. 555, 129 Va. 19; Griggs v. Brown, 102 S. E. 212, 126 Va. 556; Christian v. Bulbeck, 90 S. E. 661, 120 Va. 74. It therefore remains to be seen to what extent, if any, the rules applying to the recovery of land in an action of ejectment apply to and control the case now under consideration.

The evidence in this case shows that the tract of land mentioned and described in plaintiff's petition consists entirely of timber land, no part of which had been improved or actually occupied by the plaintiff or any of its predecessors in title, but the evidence is undisputed that from the time of the said conveyance to Hiram Bingham until this controversy arose the owners in title to this land, which was commonly known as the Bingham tract, paid the taxes on the same, claimed it as their own, cut timber from it from time to time, at will, and that the land was recognized without dispute from any source as belonging to the record owners thereof. During this period the Bingham tract changed hands a number of times, being bought and sold chiefly on account of its timber rights, and one of plaintiff's predecessors in title, Peart, Nields & McCormick, who owned and held said land tract from 1896 until 1914, look actual possession of the same to the extent of cutting and removing therefrom all the original growth of timber then standing thereon. After plaintiff acquired the property from Harding and wife in the year 1919, it exercised ownership over it by claiming the same under its recorded deed, going upon it from time to time for the purpose of examining the timber or showing it to prospective purchasers, paying the taxes, and performing such other acts as are usually incident to the ownership of unoccupied timber land. After receiving a deed for the property, plaintiff also blazed the boundary line it claimed between this tract and defendant's. The land owned by the defendant, which is timber land of the same general description as plaintiff's Bingham tract, and coterminous with the western boundary thereof, was acquired by defendant by the aforesaid deed from W. W. Doyle and wife, dated April 5. 1919, and is designated in said deed, and also generally known, as a part of the D. W. Spencer farm. Defendant traced his title to this land back to 1835, when it was conveyed, as a part of a larger tract, to D. W. Spencer by deed from Richard K. Eldridge and wife. So far as disclosed, no survey was ever made of the Spencer land now owned by the...