Feder v. Hager

• Court: West Virginia Supreme Court
• Writing for the Court: ROBINSON, J.
• Citation: Feder v. Hager, 69 W. Va. 160, 71 S. E. 107 (W. Va. 1911)
• Decision Date: 18 April 1911
• Parties: FEDER v. HAGER et al.

71 S.E. 107

69 W.Va. 160

FEDER v. HAGER et al.

Supreme Court of Appeals of West Virginia.

April 18, 1911

Submitted January 19, 1910.

Syllabus by the Court.

A decree of sale, reciting that the land proceeded against and directed to be sold is "school land" or "waste and unappropriated land," is sufficient prima facie evidence of the state's title to meet the requirements of points 3 and 4 of the syllabus in this case on former writ of error. 64 W.Va. 452, 63 S.E. 285.

The whole of the record of proceedings for the sale of school lands, together with the deed made in pursuance thereof should be looked to for the purpose of identifying land thereby sold as land now in controversy.

Error to Circuit Court, Boone County.

Action by Julius C. Feder, as administrator, against John W. Hager and others. Judgment for defendants, and plaintiff brings error. Reversed, and judgment rendered.

Payne & Payne and Brown, Jackson & Knight, for plaintiff in error.

F. C Leftwich and W. R. Thompson, for defendants in error.

ROBINSON J.

An understanding of this unlawful entry and detainer case may be had by reference to the opinion on a former writ of error. 64 W.Va. 452, 63 S.E. 685. It will there be observed that the judgment was reversed and the case remanded for a new trial. Plaintiff had not fully traced his title to the state. He relied upon a deed from a commissioner of school lands, but did not sufficiently support that deed by the record of the proceedings in which it was authorized to be made. We held that "such parts of the record of the court proceedings upon which the deed is based as show forfeiture of the land or title thereto in the state are necessary as prima facie evidence that the deed carried the state's title," and that "the court proceedings introduced to support the deed are not evidence that the state had title which was thereby conveyed, if they contain no reference to such facts of title."

There has been another trial of the case-- one by the court in lieu of a jury. All the evidence on the former trial was again considered, by agreement of the parties. In addition plaintiff introduced a decree for the sale of school lands entered in the proceedings which were the basis of the deed through which he claims. This decree directs the sale of the land as school land--waste and unappropriated land. Plaintiff also proved that the title under which defendants claim to hold was forfeited at the time of the sale pursuant to this decree. Besides, plaintiff proved that he and those under whom he holds have regularly been charged with the taxes on the land and have paid the same. On defendants' part, the evidence on the new trial was practically the same as that on the former one. The court found for defendants and entered judgment in their favor. The right to possession which plaintiff claimed by the action was thereby denied him, and he has prosecuted the writ of error now under consideration.

We are well satisfied that the judgment is erroneous. Plaintiff proved good title to the land and upon it was entitled to possession as against defendants who claim possession under an inferior title. Plaintiff traced his title to the state. He showed a complete...