Carter v. Jones, 11084

• Court: Supreme Court of West Virginia
• Citation: 112 S.E.2d 705,145 W.Va. 98
• Decision Date: 05 May 1960
• Docket Number: No. 11084,11084
• Parties: Harold E. CARTER and Vera A. Carter v. S. G. JONES and Eva A. Jones.

Page 705

112 S.E.2d 705 145 W.Va. 98 Harold E. CARTER and Vera A. Carter
v.
S. G. JONES and Eva A. Jones. No. 11084. Supreme Court of Appeals of West Virginia. Submitted Jan. 20, 1960.
Decided Feb. 23, 1960.
Rehearing Denied March 8, 1960.
Petition for Decision Refused May 5, 1960.

Page 706

Syllabus by the Court

1. It is not reversible error for a trial court to refuse to accept a verdict, or to direct the jury to return to the jury room and [145 W.Va. 99] consider further of their verdict, after the return of a verdict based on a condition which renders it of such doubtful meaning that a proper judgment can not be rendered thereon.

2. Evidence introduced at the trial of an action at law but not made part of the record by bill of exceptions, or certificate in lieu thereof, will not be considered by an appellate court.

3. Where only part of the evidence submitted to a jury, on an issue properly before the jury, is made part of the record of the case, an appellate court will consider the finding of the jury as to such issue fully supported by the evidence.

4. A grantor in a deed conveying real estate, with covenant of general warranty, may establish by proper proof, a subsequent ouster of the grantee of the land conveyed, and the acquisition of title thereto by adverse possession.

Horace S. Meldahl, Charleston, for plaintiffs in error.

Wm. T. Brotherton, Jr., J. Howard Hundley, Charleston, for defendants in error.

GIVEN, Judge.

This proceeding, instituted in the Court of Common Pleas of Kanawha County, was prosecuted for the purpose of having determined the true boundary line dividing the property of plaintiffs, Harold E. Carter and Vera A. Carter, husband and wife, and the property of defendants, S. G. Jones and Eva A. Jones. A verdict was returned in favor of defendants and the trial court, having overruled a motion to set aside the verdict, entered judgment, in accordance with the verdict, for defendants. The Circuit Court of Kanawha County, on writ of error, affirmed the action of the trial court.

[145 W.Va. 100] Prior to August 31, 1942, Dayton Rhodes acquired title to certain lots situated in Block A of Hollywood Manor, a subdivision in Kanawha County, including lots 4, 5, 6 and 7. On that date he and his wife executed a deed conveying to plaintiffs lot 7 and the northerly half of lot 6, and other property. The northerly half of lot 6 is described in the deed as 'that portion or half of said Lot Number 6 adjacent to Lot Number 7 and fronting 25.27 feet on Tyler Boulevard and extending back therefrom between parallel lines, and running with the line of said Lot Number Seven, a distance of 114.7 feet to Lot Number Twenty'.

Out of the property so acquired by Dayton Rhodes, he and his wife, on September 22, 1948, conveyed to defendants, by metes and bounds, all of lots 4 and 5, and 'all of the southerly 25.28 feet of Lot No. 6 of said Block A of said subdivision, being the part of said Lot No. 6 which adjoins Lot No. 5'. The line dividing the northerly part of lot 6 from the southerly part thereof, attempted to be fixed by the two deeds, is the line here in dispute. There appears to be no material difference in the effect of the deeds as to the location of that line. Its true location on the ground, however, is in controversy.

Page 707

The present proceeding was instituted August 17, 1957. Sometime in the latter part of 1946, Carters, the owners of the northerly part of lot 6, and Rhodes, predecessor in title of defendants, the owner of the southerly part of lot 6, decided to erect a fence along or near the line between their properties. For such purpose Rhodes and Harold E. Carter, using an ordinary tape line, measuring from what they believed to be an established monument in the survey, to a point in the front line of lot No. 6, located a line for the purpose of erecting the fence between their properties, and, almost immediately, commenced the erection of a wire fence along the line so located, which fence was completed soon thereafter, both parties helping with the erection thereof, and which fence was [145 W.Va. 101] maintained by the parties until about the time of the institution of this proceeding. The evidence before us is in conflict as to whether the fence was erected on the line as fixed by the deeds.

The grantors and the grantees in the deed of August 31, 1942, testified to the effect that it was not the intention of the parties to erect a fence exactly on the division line, and that there was no intention to claim any land beyond the true location of the center line of Lot 6, as established by the deeds. The evidence before us, however, indicates strongly that the parties intended to erect the fence on the true line, that a substantial fence was erected and maintained between the properties, on the line as located by them, and that substantial improvements were made by each of the owners on their respective properties, near or touching the fence so maintained, and that the parties, respectively, exercised full and complete possession and control of their respective properties, to the fence, until about the time of the institution of this proceeding. It may be noticed that defendants obtained their deed less than ten years prior to the institution of this proceeding, but that the time between the erection of the fence by Carters and Rhodes, Rhodes being the predecessor in title of defendants, and the institution of the proceeding, was more than ten years.

After the jury had considered of their verdict, they returned in open court with a verdict in the following language: 'We, the jury, find for the plaintiffs, Harold E. Carter and Vera A. Carter,...