Eagle Land Co. v. Ferreix.

• Decision Date: 02 December 1924
• Docket Number: No. 5106.,5106.
• Court: West Virginia Supreme Court
• Parties: Eagle Land Company v. Winifred Ferreix et al.

97 W.Va. 608

Eagle Land Company

v.Winifred Ferreix et al.

No. 5106.

Supreme Court of Appeals of West Virginia.

Submitted November 11, 1924.

Decided December 2, 1924.

1. Quieting Title Owner in Possession May Maintain Suit to Remove as Cloud Deed or Claim Covering Any Part Not in Possession of Adverse Claimant.

One with title to and possession of land may maintain a suit in equity to remove as a cloud any deed or claim covering his land or any part of it not in possession of the adverse claimant. (p. 611.)

(Quieting Title, 32 Cyc. p. 1341).

2. Adverse Possession Occasional Intermittent Acts of Trespass Held Not Such Adverse Possession as Vests Title

When defendant relies on color of title and possession under it, and his possession has amounted to occasional acts of trespass, and was intermittent, and not continuous and adverse for the requisite period of time, he has not shown such adverse possession of the land as the law requires in such cases to give him good title. (p. 613.)

(Adverse Possession, 2 C. J. § T)

Note: Parenthetical references by Editors C..1. Cyc. Not part of syllabi.

Appeal from Circuit Court, Raleigh County.

Suit by the Eagle Land Company against Winifred Ferrell and another. From a decree for defendants, plaintiff appeals.

Reversed and rendered.

Brown, Jackson & Knight, for appellants.

H. A. Dunn and A. P. Farley, for appellees.

Miller, Judge:

The avowed object of the bill was to remove as a cloud on plaintiff's title to a tract of 14 acres and 38 poles of land on Clear Fork of Coal River, in Raleigh County, the claim of the defendant Ferrell. to five acres, described in the report of the surveyor Wilson, who executed the order of survey filed in the cause, as follows: "Beginning at a stake on a cliff, on north side of Clear Fork, thence S. 30° 15' E. 240.7 feet to a spruce pine on bank of Clear Fork, a corner to the tract of land conveyed to Sylvester Ferrell by Douglas B. Gordon, and others, March 22, 1901, thence with a line of said Gordon tract S. 76° 35' E. 1327.9 feet to an old fording place in Clear Fork; thence leaving the said Gordon tract 67° 35' E. 209 feet to a large poplar stump on south side of Clear Creek, a corner to Thomas Levisay and Rutter and Etting Tracts. Thence N. 75° 01' 1662 feet to the beginning."

This tract was undoubtedly a part of the plaintiff's tract, originally of 2, 700 acres known as the Galigo tract or survey, which adjoins on the south a tract of ten acres reserved in the deed from Douglas and Basil Gordon to Ackerman and Voegle, trustees, and others, of April 4, 1900, through whom plaintiff acquired title to the larger tract. And the bill alleges, and the record shows, that the ten acres so reserved was, on March 22, 1901, sold and conveyed by the Gordons to Sylvester Ferrell; and the fact that the larger and the smaller tract so reserved and conveyed adjoin each other can not be controverted; and the deed to said Ferrell so identifies the said ten acre tract. It describes it as bounded by a straight line running from the pine near Clear Fork to Coal River; thence S. 77 1/4 E. 76 poles to the pond of the creek above Ferrell's house; thence with the meanders of the Clear Fork of Coal River, and as being within the Galigo survey, and the same land on which Ferrell then resided.

After so acquiring the ten acres, Sylvester Ferrell, the defendant and his wife joining therein, by deed of October 9, 1916, conveyed the ten acres and a small tract of one and onehalf acres some distance from the first tract, also a part of the original Galigo survey, to John L. Dickinson, who, on October 16, 1916, conveyed both tracts to the Eagle Land Company, the plaintiff. So that by these deeds the plaintiff acquired title to the several tracts referred to, all located within the boundary of the original Galigo survey.

The bill alleges that prior to the date of his deed to said Dickinson for the two small tracts, namely, on September 7, 1916, Sylvester Ferrell had executed an option to him, and of which the said Winifred Ferrell, the co-grantee in his deed, had notice.

And the bill alleges, and the evidence we think shows, that on. or about the date of the deed to Dickinson the said Sylvester and Winifred Ferrell entered into a conspiracy to defraud the Eagle Land Company of the tract of 14 acres and 38 poles adjoining on the north the said ten acre tract, which tract along with the ten acre tract to the south of it was held by said Sylvester Ferrell under lease, originally from Dickinson and later from plaintiff; that in furtherance of said scheme Sylvester Ferrell, on October 9, 1916, the date of his deed to Dickinson, executed to his son, Winifred, a deed for said 14 acres and 38 poles, who on December 3, 1917, reconveyed the same to Sylvester, his father, and who, on April 12, 1919, reconveyed it to said Winifred, the defendant; and they are the three deeds so exchanged between father and son that the bill seeks to remove as clouds on plaintiff's title to the land described. The defendant denies knowledge of the option of his father to Dickinson, which for description refers to adjoining lands and calls for 20 acres, more or less, but the bill alleges, and the proof shows clearly, that the option covers the land in controversy, or a greater part of it.

The real defense to the bill relates solely to the five acres, which by description is for the most part wholly within the 14 acres and 38 poles. No part of these five acres, according to the description, is within the boundary of the ten acres, but practically all of it, except small triangular pieces at the western and eastern ends thereof, is within the boundary of the 14 acres and 38 poles. The defendant claims the part of the five acres within the boundary of the tract described in the three deeds beclouding plaintiff's title; and his claim to this is based on color of title and his alleged adverse possession, alleged by him to have extended over a period of twenty-eight years, and payment of taxes thereon for ten years or more prior to the institution of the present suit.

The decree below adjudged the plaintiff not entitled to the relief prayed for, and dismissed his bill without reservations; and the plaintiff has appealed. As the answer disclaims all the land covered by the three deeds except the five acres, the plaintiff was certainly entitled to a decree removing those deeds as clouds on the residue of the 14 acres and 38 poles. The plaintiff showed possession of the land by tenants, at least that portion of the 14 acres and 38 poles not including the five acres claimed by defendant. In Bonafede v. Feed & Storage Co., 81...