Heirs v. Ward

• Decision Date: 21 November 1905
• Citation: 58 W.Va. 366,52 S.E. 398
• Court: West Virginia Supreme Court
• Parties: LOGAN'S HEIRS. v. WARD et al.

52 S.E. 398

58 W.Va. 366

LOGAN'S HEIRS.

v.WARD et al.

Supreme Court of Appeals of West Virginia.

Nov. 21, 1905.

1. Ejectment—When Maintainable.

An owner of land in actual possession, who is entered upon by an adverse claimant, may, both by common law and chapter 90 of the Code of 1899, maintain ejectment against the intruder, and cannot sustain a bill in equity to remove cloud over his title.

2. Quieting Title—Removal of Cloud.

Equity will entertain a suit to remove cloud over the title to land by one in actual possession against an adverse claimant not in actual possession who sets up an adverse title.

3. Same— Title to Maintain.

A bill to remove cloud over the title to land cannot be maintained, unless the plaintiff has both title and actual possession. He cannot rely on weakness of the title of his adversary.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Quieting Title, §§ 8, 36.]

4. Same—Evidence.

When a patent or deed includes within the exterior bounds of the lands thereby conveyed lands which are excepted by such grant or deed from its operation, a plaintiff in equity, suing to remove cloud from his title, must show that the land he claims against the defendant is not the land so excepted.

5. Joint Tenancy — Adverse Possession — Presumption of Grant.

The law will not presume a grant of his undivided share from one joint tenant to another simply from mere silent possession by one for a long time.

8. Adverse Possession — Presumption of Grant.

A presumption of a grant from lapse of time with possession never arises where all the circumstances are consistent with the nonexistence of such grant.

Poffenbarger, J., dissenting.

(Syllabus by the Court.)

Appeal from Circuit Court, Randolph County.

Bill by James H. Logan against Wirt C. Ward and Elihu Hutton. Decree for defendants, and the heirs of said plaintiff appeal. Affirmed.

C. H. Scott and Mollohan, McClintic & Mathews, for appellants.

Baker & Strader, Harding & Harding, M. H. Dent, and Linn, Byrne & Cato, for appellees.

BRANNON, P. James H. Logan brought a chancery suit against Wirt C. Ward and Elihu Hutton to remove a cloud over Logan's title to land, and upon the hearing Logan's suit was dismissed, and his heirs appealed.

I state Logan's claim thus: By patent dated 13th February, 1798, the state of Virginia granted to William Bowyer, William Breckenridge, Hugh Paul, and Edward Bryan a tract of 50, 000 acres of land in Randolph county. William Logan obtained the conveyance of the Breckenridge and Paul shares in said tract, and was thus owner of half of it. James H. Logan claims that his father, William Logan, had deeds for the other interests in the tract, but does not show them. William Logan, by deed dated 15th May, 1851, conveyed to his sons, James H. and Joseph M. Logan, that portion of said tract, which is commonly called the "Breckenridge Survey, " west of Elk Water run to a certain line running N., 70° W.; and Joseph M. and James H. Logan afterwards, by deed, 1st August, 1899, made a division between them of said portion of the Breckenridge survey, whereby that part of it covering the land in dispute became the sole property of James H. Logan. Thus James H. Logan claims under the Breckenridge survey. It is the only title set up by his bill. The bill states that the Breckenridge tract was sold by the United States in 1815 for direct taxes, and was purchased by Jinks, and conveyed by him to See, who conveyed part of it, said to include the land in controversy in this case, to William Logan by deed dated 20th November, 1851. This seems to be the same part of said survey before conveyed by William Logan to James H. and Joseph M. Logan.

The grant from Virginia to Bowyer and others for the 50, 000 acres is what is called an "inclusive grant"; that is, lands are included within its bounds which were excepted from the operation of the patent. This patent excluded 13, 690 acres for prior claims. The deed from Jinks to See also excluded the same lands covered by prior claims which were excepted in the said patent, as also several thousand acres which Jinks had disposed of before he conveyed to William Logan. The deed of Jinks may be thus called an "inclusive deed." The deed from William Logan to James H. and Joseph M. Logan is a quitclaim deed. James H. Logan and Joseph M. Logan also obtained a grant from Virginia, dated 30th November, 1850, for 815 acres of land claimed to be within the bounds of the Breckenridge grant. James H. Logan and his father long before him had actual possession within the bounds of what he claims to be the Breckenridge survey, and he continued that possession at the date of the commencement of this suit Neither side had actual possession of the land in controversy in this case, but Logan claims constructive actual possession by reason of his possession inside of the Breckenridge survey. Logan asserts that the land claimed by the defendants is inside his part of the Breckenridge grant. The claim of the defendants is under a grant from the state of Virginia to J. M. Bennett and John S. Hoffman for 990 acres, dated 1st February, 1854, which came by conveyance to defendant Wirt C. Ward, with whom Elihu Hutton had an interest. The defendants also set up a claim under a grant of 105, 000 acres, known as the "Welsh Survey", which Hutton claims. The bill avers that under these grants to Bennett and Hoffman and Welsh the defendants Ward and Hutton set up a claim adverse to Logan, but averred no actual possession in them.

Counsel for Logan devotes effort to sustain equity jurisdiction in this case, seeming to doubt it because of the well-known rule that equity will not try title to land. It is true that this is practically an ejectment in equity, because it is only a battle between distinct and adversary titles; but the case falls under the head of equity jurisdiction to dispel cloud over title to land arising from adverse claim. There is some evidence in the case tending to show that the defendants were in possession of the disputed land, and if that were in fact so I do not think a suit in equity could be sustained, since by common law I think it is clear that where one man is in actual possession, and another enters upon him under adverse claim, the true owner may by common law, regardless of our ejectment statute, sustain ejectment. The intruder's entry is a disseisin or ouster, but only a partial one, to the extent of his inclosure; his adversary still retaining his former possession. Taylor v. Burnsides, 1 Grat. 165; Core v. Faupel, 24 W. Va. 246. The true owner, still remaining in possession, may treat his enemy's entry as an ouster and sue in ejectment. "The plaintiff, in possession of a portion of the premises, may bring ejectment for the remainder in the defendant's possession." 1 Am. & Eng. Ency. L (2d Ed.) 526; Tapscott v. Cobbs, 11 Grat. 172; Witten v. St. Clair, 27 W. Va. 771; Stuart v. Coalter, 4 Rand. 74, 15 Am. Dec. 731. Therefore, if in fact defendants were in possession when suit was begun, I think there could be no jurisdiction in equity, because, before our present ejectment statute ejectment would lie. Equity long ago assumed jurisdiction to remove cloud, but only in favor of one in possession, because he could not sue in ejectment; but where both are in possession he can sue by common law. Va. Coal & Iron Co. v. Kelly (Va.) 24 S. E. 1020. But the evidence shows that the defendants were not in possession actual when this suit began, and counsel for defendants do not base any stand on that theory. The bill states only hostile claim, not possession. The evidence shows that William Logan and his sons under him had possession many, many years before this suit, 75 or 80 years, and James H. Logan continued in possession actual. Some evidence goes to show that some years before the suit was brought a cabin, or rather a shanty, was built on the land in a trackless wilderness, and during one summer one Salisbury one night in the week slept in it; his actual residence with his family being elsewhere. There was no inclosure or cultivation. It was mere nominal transient possession of nights. It was no open, notorious, continuous occupation. It was not possession actual in the eye of the law. Hutchison, Land Titles, § 365; Anderson v. Harvey, 10 Grat. 386. Therefore there is jurisdiction in equity for this suit, and we pass to a consideration of its merits.

This is an ejectment in equity, because a contest between hostile titles, and in it we must apply the rule in ejectment that a plaintiff must recover upon the strength of his own title, no matter how weak his opponent's title may be. Those only who have a clear title connected with actual possession have a right to claim the interference of equity to dispel a cloud over their title. Mills v. Henry Oil Co., 57 W. Va. 255, 50 S. E. 157; Hitchcock v. Morrison, 47 W. Va. 206, 34 S. E. 993; Christian v. Vance, 41 W. Va. 754, 24 S. E. 596; Moore v. McNutt, 41 W. Va. 695, 24 S. E. 682; Hogg, Eq. Princip. 83; Helden v. Hellen (Md.) 31 Atl. 506, 45 Am. St. Rep. 371; Dewing v. Woods, 111 Fed. 575, 49 C. C. A. 443, and citations in Judge Goff's opinion. The plaintiff cannot recover unless he fixes on the ground his exterior boundaries by lines and corners. Coal Co. v. Howell, 36 W. Va. 490, 15 S. E. 214. The plaintiff cannot meet this requirement. He claims under the Breckenridge survey. He has not identified it He claims that the defendants' land lies within that survey. The defendants deny it. Not a corner or a line of that survey is proven. No man proves that he ever saw a corner or a line of it No reputation thereof is given. Marstiller's evidence is relied on by the plaintiff. He is a young man of only 42. He does not state that he ever saw what he knew to be an original corner or line to this old survey, made away back in 1798. He tested no corners or lines. It is proven that clearing and fire breaks have destroyed them, if ever they existed. Marstiller says he never made a...