Creekmur v. Creekmur

• Decision Date: 14 April 1881
• Citation: 75 Va. 430
• Parties: CREEKMUR v. CREEKMUR AND ALS.
• Court: Virginia Supreme Court

75 Va. 430

CREEKMUR v. CREEKMUR AND ALS.

Supreme Court of Appeals of Virginia.

April 14, 1881

1. The difference between the effect of a demurrer to evidence and a motion for a new trial founded upon a certificate of the evidence is, that in the former case the demurrant is considered as admitting the truth of his adversary's evidence, and all just inferences to be drawn therefrom by a jury, and as waiving all his evidence, which conflicts with that of his adversary, and all inferences from his evidence which do not necessarily result therefrom; whilst in the latter case, the exceptor waives all of his oral testimony, and must succeed, if at all, by showing that the verdict of the jury is erroneous, upon the testimony of the successful party.

2. In 1826 P conveyed to his brother E a tract of land for a nominal consideration, and a few days thereafter E conveyed the same tract to J, a son of P, then eight or ten years old living with his father on the said land, for a like consideration. When J arrived at the age of eighteen he was put to the trade of a cabinet maker by his father, and when he arrived at maturity, between 1840 and 1843, married, and afterwards lived separate from his father. P, the father resided on the land at the time of the conveyance to E continued to reside on it, claiming it as his, and exercising complete and notorious dominion over it (once in 1843 against the protest of J, who was denied this right and ordered off the land), until the death of P in 1873. In 1853 P conveyed to his son J another tract of land, with which J said he was satisfied, and that he no longer claimed the first-named tract. J lived and died on the tract last conveyed to him. On the death of P, in 1873, he devised to his son P, Jr., a son by his second marriage, the first named tract. In an action of ejectment, brought after the death of P and J by the heirs of J against P, Jr., to recover said first conveyed tract--HELD:

1. P, and those claiming under him, having held continual, adversary and notorious possession of the land under claim of title, with the knowledge and acquiescence of J, for a period beyond the statutory bar, the heirs of J cannot now recover it from P, Jr., the devisee of P.

2. Although a party may enter into possession in privity with the true owner, he may, without first surrendering the premises, dissever such relation, and claim by adverse title.

3. Where possession is originally taken and held under the true owner, a clear, positive and continued disclaimer and disavowal of that title, and the assertion of an adverse one, must be brought home to the true owner before any foundation can be laid for the operation of the statute of limitations; and this was done in this case.

4. Adversary possession must be actual, exclusive, open and notorious, accompanied by a bona fide claim of title against that of all other persons, and it must be continued for the period of the statutory bar.

5. A mere naked possession, without a claim of right, no matter how long, never ripens into a good title, but is regarded as being held for the benefit of the true owners.

6. Quæ re: What is color of title?

7. The effect of color of title is to fix the eharacter of the occupant's possession, and define its extent and limits. As a general rule, the possession of one who has a colorable title, is coextensive with the boundaries of the instrument under which he claims, in the absence of any actual possession by the true owner; whereas the possession of one entering and holding under a mere claim of title is confined to the land in his actual occupation.

This was an action of ejectment brought in the circuit court of Norfolk county, Va., by Margaret M. Creekmur and Almira Creekmur, infants under the age of twenty-one years, suing by Edwin H. Creekmur, their next friend, and the said Edwin H. in his own right, against Peter E. Creekmur, to recover the possession of a certain tract of land in said county. The facts of the case are sufficiently stated in the opinion of Staples, J. On the trial in the court below, after all the evidence was adduced on both sides, the plaintiffs demurred to the defendant's evidence, in which the defendant was required to join, and the court sustained the demurrer to the evidence, and entered judgment for the plaintiffs for the premises sued for, from which judgment the defendant obtained a writ of supersedeas to this court.

D. J. Godwin, for the appellant.

Ellis & Thom, for the appellees.

STAPLES J.

The decisions of this court have established a wide distinction between the effect of a demurrer to evidence and a motion for a new trial, founded upon a certificate of the evidence. In the latter case, the exceptor waves all his own testimony, which is merely oral, and must succeed, if at all, by showing that the verdict of the jury is erroneous upon the testimony of the successful party. Upon a demurrer to the evidence, the demurrant is considered as admitting the truth of his adversary's evidence, and all just inferences which might properly be drawn therefrom by a jury. He is also considered as waiving all his own evidence which conflicts with that of his adversary, and all inferences from such evidence which do not necessarily result therefrom. Richmond and Danville Railroad Company v. Anderson's Adm'r, 31 Gratt. 812; 4 Minor's Ins., part 1st, 749. It is obvious that a demurrer to evidence is often a very hazardous proceeding, resulting in a decision different from that which might have been arrived at by a jury. In the case before us the plaintiffs, having demurred to the evidence of the defendant, must submit to the operation and effect of the rule just established.

Applying this rule in the present instance, it appears that, in the year 1826, Peter Creekmur conveyed the land in controversy to his brother Ephraim Creekmur for the alleged consideration of five hundred dollars, the receipt of which was acknowledged in the deed.

It would seem, however, that this sale was purely a fictitious one, probably to evade the payment of debts. This conclusion is much strengthened by the fact that Ephraim Creekmur, the grantee, a few days afterwards, conveyed the land to Joseph Creekmur, a son of Peter Creekmur, at the nominal price of ten dollars. This Joseph Creekmur was at the time a lad of eight or ten years of age, living with his father on the land in controversy. At the age of eighteen he was put to the trade of a cabinet-maker; between 1840 and 1843 he attained his majority, and, as may be fairly inferred from the evidence, he was then married and settled, living thereafter separate and apart from his father.

His descendants are the plaintiffs in this suit. Peter Creekmur resided upon the land in controversy at the time of the conveyance to his son, and continued to reside upon it down to the day of his death in 1873. During all this time, a period of nearly fifty years, he claimed to be the owner of the land in fee, and he exercised over it acts of dominion and ownership, open, notorious and adverse to all the world. In the language of one of the witnesses, fully sustained by the others, " he enclosed the land with a fence, ditched and otherwise improved the same, built barns and other out-houses, kept in repair the older ones, and continued up to the period of his death annually to improve and cultivate the land." Joseph Creekmur was fully apprized of the claim of title on the part of his father. He not only acquiesced in it, but recognized it, and acted upon it, for as far back as 1847; he leased from his father a part of the land and paid rent for it, and on various occasions he bought timber growing upon it, for his business as cabinet-maker, and paid for it. In 1843, about the time and after he attained his majority, he made an effort to have some ditching done upon the land. His right to do so was denied by Peter Creekmur, who told him the land was his property, and not that of the son; that he intended to control it during his life, and to dispose of it as he pleased at his death. He said to his son, " You know it is my land, and not yours," and closed the interview by indignantly ordering the son from the premises. It does not appear that the latter ever afterwards called in question the title of his father, or attempted in any manner to disturb or interfere with his peaceable or exclusive possession. In 1853, Peter Creekmur conveyed to Joseph Creekmur another tract of land, known as the " Balune tract," about equal in value to the land in controversy, and the latter then declared that his father had done more for him than for any of his other children, and that he no longer claimed the land in controversy. Joseph Creekmur lived and died upon the land thus conveyed to him, never asserting any claim to the land in controversy. It was left to the descendants, after the death of the father and grandfather, to bring this action. There is no doubt that Peter Creekmur honestly believed that the land justly belonged to him. He acted upon this belief for forty-seven years; and upon his death, in 1873, he devised it to Peter Creekmur, a son by a second marriage, who is the defendant in this suit. This is the case made by the defendant's witnesses. I do not deem it at all necessary to enter into an examination of the testimony adduced by the plaintiffs. That testimony does not in the least detract from the weight this court is required to give to the defendant's evidence. But if the testimony of the plaintiffs' witnesses is to be regarded as in conflict with that of the defendant's witnesses, it must be disregarded upon the well-settled principles applicable to demurrers to evidence.

The facts proved--facts incontrovertible--show an actual continued, adversary possession of the land...