Garrett v. Ramsey et al.

• Decision Date: 09 July 1885
• Citation: 26 W.Va. 345
• Parties: Garrett v. Ramsey et al.
• Court: West Virginia Supreme Court

26 W.Va. 345

Garrett

v.Ramsey et al.

Supreme Court of Appeals of West Virginia.

Submitted June 9, 1885.

Decided July 9, 1885.

1. The practice of inserting in a demurrer to evidence the evidence

on both sides is proper, (p. 349.)

2. In such case the demurrant must be considered as admitting all

that can reasonably be inferred by a jury from the evidence given by the other party, and as waiving all the evidence on his own part, which contradicts that offered by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it. (p. 349.)

3. The evidence on a demurrer to the evidence should be interpreted

most benignly in favor of the demurree; so that he may have all the benefit, which might have resulted from the decision of the case by a jury, the proper forum, from which the decision has been withdrawn by the demurrant. (p. 349.)

4. Uninterrupted, honest and adverse possession for ten years in

this State gives a right to recover land in an action of ejectment against the strongest proof of title, which independently of such continued adverse possession would be the better title, (pp. 364-5,)

5. Where there are conflicting grants or deeds to lands causing an

interlock, and the elder grantee or owner is in the actual possession of a part of his land outside of the interlock, and the junior grantee of adverse claimant is in the actual possession of a part of the interlock claiming the whole to the extent of his boundaries, such possession of the former outside of the interlock will not limit the possession of the latter to his mere enclosure, but he will be held to be in the adverse possession of all the land in the interlock. Green, Judge, dissenting on this last point. (p. 350.)

Green, Judge, furnishes the following statement of the case:

At April rules 1874 Hugh Garrett filed his declaration in ejectment in the circuit court of Harrison against John W. Ramsey and George F. Bussell claiming in fee a tract of land set out by metes and bounds lying in said county and containing 140 acres, from which he had been ejected by the defendants, laying his damages at $1,000.00. On May 25, 1874, the defendants pleaded not guilty; and an order of survey was made and the case tried by a jury. On June 16, 1875, the jury found a verdict for the plaintiff for a part of the land named in the declaration, the boundaries of the part so found being set out in the verdict. They found that the plaintiff was entitled to a fee in this part of the land found for him, and that the defendants were in possession of this part so found claiming title to it, when this action was commenced. On the motion ot the defendants this verdict was set aside, and a new trial was awarded. On the second trial the jury found on December 15, 1875, for the plaintiff two separate parts of the land named in the declaration, these two parts being severally described in the verdict by metes and bounds. The verdict further found, that the plaintiff has an estate in fee simple in these parts of this land found for him. The defendants again moved the court for a new trial; and the court again set aside the verdict and granted a new trial upon their paying the costs incurred by the plaintiff. It is stated in the record, that the plaintiff took a bill of exceptions; but none appears in the record before us.

On May 23, 1881, a jury was again sworn to try the issue in this case,.and the plaintiff and defendants introduced their evidence; and when it was all in, the defendants filed their demurrer to the evidence of the plaintiff, and the plaintiff joined in the demurrer, and thereupon the jury being required to find for the plaintiff part of the land in the declaration mentioned and to assess the damages which the plaintiff had sustained, if judgment should be given for the plaintiff on this evidence, found for the plaintiff, subject to the opinion of the court upon the demurrer to the evidence, a certain part of the land in the declaration mentioned described in the verdict by metes and bounds. They further found for the plaintiff an estate in fee simple in this part of said land and one cent damages against the defendants; but if the law arising upon the demurrer to the evidence should be for the defendants, they found for the defendants. The fact proven by the demurrer to the evidence, if construed as the law requires it to be on a demurrer to the evidence, was that the plaintiff failed to trace his title to the land in controversy by a regular chain of title to the State of Virginia, but did trace it by a regular chain of title to James Warren, who on November 30, 1836, conveyed a tract of 140 acres covering the land in controversy to George A. Sommerville, whose title, the evidence showed, was held by the plaintiff.

The defendants claimed the land in controversy by a regular chain of titles to the State of Virginia and to a patent granted on October 20, 1786, for 500 acres of land to William Barkley, a portion of this 500 acre tract covering the land in controversy, and to it, the evidence showed, the defendants had the best title, they connecting their claim with the grant from the State of Virginia dated October 20, 1786. The tract of 140 acres named in the declaration, to which the plaintiff had a claim, so far as it covered the land in the controversy, was claimed by the plaintiff by a regular chain of title from the deed made by James Warren to George A. Sommerville on November 30, 1836. But it was proven that James Warren had no title to that portion of this land, which is in controversy in this suit. But this tract of 140 acres was by a mistake so surveyed, when Warren conveyed to Sommerville in 1836, that the lines in the deed also covered the disputed land, which was therefore an interlock between the tract of 140 acres claimed by the plaintiff and the portion of the tract of 500 acres claimed by the defendants. And the paper title of the defendants was better than that of the plaintiff, defendants' title coming from the grant; of the State of Virginia made in 1786, while the plaintiff's title originated in the conveyance made in 1836, the grantor in the deed made in 1836 having no title in fact to this 140 acres, so far as it covered the land in controversy, but a perfectly good title except to that portion covered by the land in controversy.

The plaintiff's claim on this demurrer to evidence is based solely on the evidence in relation to the possession in fact by him of a portion of this interlock for more than ten years prior to the institution of this suit. There was no controversy as to this claim; but the land really in controversy was that portion of the interlock, which was in the boundary of the plaintiff's tract of 140 acres, but which was not in his actual possession, but which he claimed was in his constructive possession, because he was in the actual possession of two small parcels of the interlock, the evidence showing that he had been in the actual possession of two small enclosures one containing eight acres and fifteen poles and the other three fourths of an acre. The facts appearing from this demurrer to evidence with reference to the possession were as follows: The defendants and those under whom they claim had actual possession of a considerable portion of that part of the tract of 500 acres patented by the State of Virginia in 1786, to which they had a good title, and they had held possession of a portion of this land for more than fifty-three years prior to 1876; but no part of this land so in their actual possession was within the interlock or was any part of the land in controversy, though they claim, that the whole land in controversy was all this time in their constructive possession, as the boundaries of their tract covered the whole land in controversy. They did not take actual possession of any portion of the land in controversy within the interlock till 1870, about four years before the institution of this suit, when they opened a coal mine on it.

The evidence in reference to the possession of the plaintiff construed as it must be on a demurrer to evidence by the defendants would establish the following facts: Those under whom the plaintiff claim this tract of 140 acres first took possession of a small part of it, some fifty acres outside ot this interlock, in 1847, a small portion of which may have been within the interlock. He took possession of about three fourths of an acre inside the interlock in 1853 and cultivated it for some two years and has since then always claimed and used it as a part of his land. In 1856 the plaintiff had about eight acres more on the interlock cleared and enclosed and cultivated it in crops for three years and then put it in pasture for some eleven years, when he again cultivated it in corn and the next year in wheat and then had it in pasture. So that taking the evidence more favorably for the plaintiff, he must be regarded as in continuous actual possession of this eight acres of land within the interlock from 1856 to 1874, when this suit was brought by him, based on this possession.

These being all the facts proven, the court on the demurrer to evidence of the defendants on September 22, 1881, rendered the following judgment:

"This day came again the parties, by their attorneys, and the court having maturely considered the demurrer to the evidence joined at the last term of this court, it seems to the court the matter now in evidence to the jury is not sufficient in law to maintain the issue on the part of the plaintiff. Therefore it is considered by the court that the plaintiff take nothing by his suit, but for his false clamor be in mercy, &c and that the defendants go thereof without day and recover against the plaintiff their costs by them about their defence expended."

On the petition of the plaintiff a writ of error and supersedeas was granted him to this judgment.

John Basset for plaintiff in error. Edwin Maxwell ...