Central Nat. Bank v. Florence, 731029
| Decision Date | 20 January 1975 |
| Docket Number | No. 731029,731029 |
| Citation | 215 Va. 463,211 S.E.2d 564 |
| Court | Virginia Supreme Court |
| Parties | CENTRAL NATIONAL BANK et al. v. Lelia FLORENCE et al. Record |
Fred J. Bernhardt, Jr., Henry M. Taylor, Jr., Richmond (Florance, Gordon & Brown, Richmond, on brief), for plaintiffs in error.
Charles O. Boyles, Richmond (Cary A. Ralston, Mizell, Gayle & Boyles, Richmond, on brief), for defendants in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
In 1936, William M. Taylor died seized and possessed of a certain lot fronting forty feet on the south side of Cheatham Street in the City of Richmond. The appellees, heirs at law of Taylor, brought this action as plaintiffs under Code § 8--836 et seq. (Repl.Vol.1957), against appellants and Willie Atkinson and Elizabeth Atkinson, his wife, as defendants, to establish the eastern and western boundary lines of that lot.
In the amended motion for judgment the coterminous landowners were alleged to be the Atkinsons on the west and appellants Charlie J. Jackson and Alease S. Jackson, his wife, on the east. A jury trial was held. At the conclusion of the plaintiffs' evidence the trial court struck the evidence as to the Atkinsons and entered an order on December 5, 1972, establishing the plaintiffs' western boundary line as the Atkinsons' eastern line, based on the Atkinsons' claim of adverse possession under color of title. This order, to which no cross-error was assigned, is now final as to the parties.
At the conclusion of the plaintiffs' evidence and again at the conclusion of all the evidence, the trial court overruled appellants' motions to strike the evidence as to them. The jury returned a verdict establishing plaintiffs' eastern line and the Jacksons' western line in such manner as to bisect the Jacksons' house and lot and to award the Taylor heirs a lot fronting fifty feet on the south side of Cheatham Street, ten feet more than were claimed in their amended motion for judgment. The trial court, holding that the jury had been improperly instructed, set aside the verdict in order to prevent a 'perversion of justice' and entered the judgment order appealed from that established the common boundary line between the Taylor heirs and the Jacksons ten feet west of the line fixed by the jury, but in a location that still extended through the Jacksons' house and lot. The judgment order also awarded plaintiffs a writ of possession and ordered the Jacksons and the trustees under their deeds of trust to remove all encroachments within sixty days.
The lands in controversy were portions of a tract of approximately three acres in Chesterfield County, now in the City of Richmond, conveyed to Artemus Henderson and George Johnson by deed dated July 17, 1911, of J. H. Blackwell and wife, recorded in the Clerk's Office of the Circuit Court of Chesterfield County. The tract was therein described as being bounded on the west by the Atlantic Coast Line Railway (now Seaboard Coastline Railway) right-of-way, on the north by lands of Branch Cheatham's estate, on the south by Brander's Bridge Road (later Swineford Road and now Terminal Avenue), and on the east by the acre of land 'reserved by Robert Brown.'
Henderson and Johnson subdivided the tract and sold off lots. By deed of July 19, 1915, recorded August 5, 1915, they conveyed to John W. Brinser four lots designated as four, five, fourteen and fifteen, 'on a map by said Henderson and Johnson.' Lots four and five were described as fronting on the northern line of Swineford Road 80 feet commencing 145 feet 'from the intersection of a fifteen-foot road laid off at right angles from Swineford Road and running to the land formerly Branch Cheatham' and running back between parallel lines 163 feet, more or less, to a 12-foot alley. Lots fourteen and fifteen were described as lying immediately in the rear of lots four and five and commencing 145 feet 'from the intersection of the western line of the fifteen-foot road laid off by Henderson and Johnson where it intersects the road laid off along estate of Branch Cheatham,' fronting on the southern line of said road along the line of Branch Cheatham's estate 80 feet toward the Atlantic Coast Line Railway, and running back between parallel lines 163 feet, more or less, to the 12-foot alley.
By deed of August 20, 1915, recorded October 1915, Henderson and Johnson conveyed to William M. Taylor a lot therein described as follows:
'ALL of that certain lot of land in the County of Chesterfield near the City of Richmond and fronting forty feet on a fifteen foot road laid off out of the estate of the late Branch Cheatham parallel to the road commonly called Swineford Road leading from Turnpike to the Atlantic Coast Line Railroad, and commencing on said road one hundred and five feet from the intersection of a fifteen foot road laid off and at right angles to the road first mentioned and leading from Swineford Road to the road called Cheatham Road aforesaid, and fronting on the aforesaid road laid off out of the estate of Branch Cheatham forty (40) feet toward the Atlantic Coast Line Railroad, and running back between parallel lines one hundred and sixty three feet, more or less, to an alley twelve feet wide and is designated as lot number sixteen on the map of lots laid off by said Henderson and Johnson out of the parcel of land conveyed to said Henderson and Johnson by James H. Blackwell and wife July 17, 1911, Deed Book 125, p. 112, and to which reference is made for further description of said lot.'
Taylor constructed on his lot a dwelling known as No. 2704 Cheatham Street which was condemned by the City of Richmond in 1963.
All deeds from Henderson and Johnson conveyed lots described by lot numbers on the map of Henderson and Johnson lots and by reference to the fifteen-foot private road laid off between Swineford Road and the road along the Cheatham estate, now known as Cheatham Street. No plat of the lots was recorded, however, until 1925 when Arabella Robinson and husband conveyed to Paul W. Brinser lot three on an attached plat of Henderson and Johnson lots, lot three having been conveyed to Arabella Robinson in 1913 by deed recorded several years later. The plat is reproduced herein.
By deed dated July 18, 1917, Henderson and Johnson divided their eight remaining unsold lots as shown on the map made by Henderson and Johnson. Johnson acquired lots seven, eight, twelve and thirteen, and Henderson acquired lots one, two, seventeen and eighteen. Lots one and two were described as fronting together 105 feet on Swineford Road, and lots seventeen and eighteen as fronting together 105 feet on Cheatham Road, thus increasing the lot sizes by incorporating the 25-foot strip shown on the map. Thereafter, lot seventeen was described as fronting 52.50 feet on Cheatham Road, and it was so conveyed in 1965 to the Jacksons, with a plat attached showing a new dwelling constructed thereon and designated as No. 2702 Cheatham Street.
In 1948 the Atkinsons acquired title to No. 2706 Cheatham Street by deed from the estate of J. W. Brinser, deceased, which described the property as beginning 215.70 feet east of the Atlantic Coast Line Railroad, fronting 39.55 feet on Cheatham Street as widened, and being a part of lots fifteen and sixteen on the map of Henderson and Johnson lots, although J. W. Brinser had never acquired by deed any interest in lot sixteen. The eastern line of the Atkinson lot, as established by the trial court, conformed to the 1948 deed description and gave the Atkinsons the western 15.25 feet of lot sixteen.
The objection of the Taylor heirs to introduction into evidence of the Henderson and Johnson map, because the map was not in their chain of title and was not recorded until ten years after recordation of the Taylor deed, was overruled by the trial court. It is apparent that if the fifteen-foot road from which calls were made in the Taylor deed, and other deeds, was located as shown on the Henderson and Johnson map, all lots, including Taylor's, would conform correctly to those shown on the map. The Taylor heirs assert that Taylor followed the description set forth in his deed and that his eastern line correctly begins 105 feet west of the western line of the trace of an old fifteen-foot road, and thus extends through the Jacksons' house and lot. However, the record and plats therein indicate that the road from which Taylor apparently measured was approximately twelve feet to the east of the road described in the deed.
Although the Taylor heirs, in their amended motion for judgment, also claimed title by adverse possession, they adduced no evidence to support this theory and elected to rely solely on the description in their deed, as explained by the testimony of several witnesses.
George M. Stephens, Jr., a certified land surveyor, introduced into evidence a plat which he had prepared showing the properties in question. He had not made a survey but, as requested by plaintiffs' counsel, had started his measurements from the western line of the trace of an old road, which his plat showed to be approximately twenty-seven feet east of the eastern line of the property at No. 2700 Cheatham Street (lot eighteen). Stephens testified that by measuring from this point the Jackson house would extend over the western line of its lot by about eighteen feet and there would be a ten-foot wide strip between the western line of the Taylor lot and the eastern line of the Atkinson lot. He conceded that the trace of old road may not be the one shown on the Henderson and Johnson plat, and that it does not meet the description contained in the Taylor deed because it is not perpendicular to Cheatham Street.
Stephens...
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