Fisher's Heirs v. Camp's Heirs
| Citation | 26 W.Va. 576 |
| Parties | FISHER'S HEIRS v. CAMP'S HEIRS. |
| Decision Date | 26 September 1885 |
| Court | West Virginia Supreme Court |
Submitted Jun. 24, 1885.
1. In a real action, if the defendant plead not guilty, they may afterwards abandon their defence and by leave of the court withdraw the plea of not guilty and put in a plea of disclaimor, or they may disclaim by a simple entry of record in the case all interest in or title to the land in controversy. But if only one of the defendants wishes to abandon the controversy, the court should not permit the withdrawal of the plea of not guilty, but the defendant desiring to abandon the controversy should be allowed to do so by such simple entry of disclaimer on the record-book; and there should be no judgment for costs subsequently incurred against him. (p. 580.)
2. When a new trial has not been asked in the court below by the plaintiff in error, the appellate court will review none of the opinions or rulings of the court below during the trial of the case before the jury, though such opinions and rulings be made a part of the record by formal bills of exceptions or otherwise. (p. 580.)
Green, Judge, furnishes the following statement of the case:
On May 18, 1847, George Fisher, Jr., instituted his writ of right in the superior court of law and chancery for Lewis county, then in Virginia, against James M. Camp, to recover a tract of 200 acres of land in said county. The demandant filed his account October 4, 1847, and the tenant then filed his plea, and the demandant filed his replication thereto, and thereupon the mise was joined between the parties. The tenant James M. Camp, having died, the action was on September 29 1849, revived against his heirs. And the demandant having afterward died, the action was on May 17, 1862, ordered by the court to proceed in the name of his heirs. On September 7, 1874, one of these heirs having died, the action was ordered to be proceeded with in the name of his heirs in lieu of their ancestor. Two of the seven heirs of tenant, James M Camp, the record states, on March 11, 1875, appeared and disclaimed any interest in the land in controversy. No formal disclaimer was filed by them, but a simple entry was made on the record, as above stated. Others of the heirs of the demandant having died, the action was revived in the names of the heirs in lieu on their deceased ancestors. A survey of the land was made by order of the court during the progress of the action.
On March 6, 1877, a jury was sworn to say the truth, whether James M. Camp's heirs have more right to hold the tenement, which George Fisher's heirs demand against them by their writ of right, or George Fisher's heirs have the more right to have it, as they demand, and a true verdict give according to the evidence. During the trial of the case by the jury, after the demandants had concluded their evidence, and the tenants had given some evidence before the jury on the mise joined, the tenants showed the fact, that certain of the demandants were infants, and thereupon they moved the court to arrest further proceedings in the action on that account, and thereupon the demandants moved the court to allow them to introduce George Fisher to the stand as next friend for these infants and to prosecute this action for them. As stated on the record, it not appearing to the court that any parties would be surprised or prejudiced by so doing, it was ordered that George Fisher be introduced into this actitn in the character of next friend to these infants. To this the tenants objected, but their objection was overruled. On March 8, 1877, the jury rendered their verdict finding that the demandants have more right to have the tenement, which they demand against the tenants, than the tenants have to hold the same, and assessing the demandant's damages at one cent. Thereupon it was considered by the court, that the demandants recover against the tenants their seizin of said tenement containing 200 acres, giving its boundaries, to hold to the said demandants and their heirs quit of said tenements and their heirs forever; and the court rendered judgment for the demandants for their one cent damages and their costs against the tenants for defendants; and a writ was granted them to have their seizin.
During the trial of the issue before the jury, the record shows, the tenants excepted to certain rulings and opinions of the court and took a bill of exceptions. This bill of exceptions shows, that the tenants offered in evidence certain deeds, whereby certain of the demandants after the institution of this action and since 1862 had conveyed their undivided interest in the 200 acres of land in controversy to certain others of the demandants. The demandants objected to these deeds being read to the jury as evidence in this action, and the court sustained their objection and refused to allow any of these deeds to be read to the jury. To this action of the court the tenants excepted, and formal bill of exceptions was taken and made a part of the record.
To this judgment of the circuit court of Lewis rendered March 8, 1877, the tenants, the heirs of James M. Camp, obtained a writ of error and supersedeas.
J. M. Bennett for plaintiffs in error.
John Brannon for defendants in error.
This will probably be the last, as it is the only, case of a writ of right, which has ever come before this Court. The writ of right has been abolished as a remedy in Virginia since July 1, 1850. (Code of Virginia of 1849, ch. 136, sec. 38; Code of Virginia, of 1860, p. 613.) And as a remedy the writ of right has never existed in West Virginia. (Code of West Va. ch. 91, sec. 38.) So that no writ of right can come before our Court, unless the action was brought prior to July 1, 1850, that is, unless the action has been pending more than thirty-five years. And despite the great delays, which sometimes occur in the prosecution of suits, it rarely happens that a suit is pending that length of time. This suit has however been pending more than thirty-eight years, there having been during all this time but little done in it except to continue it in the circuit court from term to term. The principal question discussed in this Court by counsel is, whether, if pending an action of a writ of right the demandant convey by deed the tenement, the subject of controversy, to a third party, he can in any case have a judgment in his favor against the tenant.
It is well settled, that as the law was, when this action was...
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