Hughes and Murphy v. Mount.

• Decision Date: 08 December 1883
• Citation: 23 W.Va. 130
• Parties: Hughes and Murphy v. Mount.
• Court: West Virginia Supreme Court

23 W.Va. 130

Hughes and Murphy

v.Mount.

Supreme Court of Appeals of West Virginia.

Submitted June 26, 1883

Decided December 8, 1883.

1. In a warrant of unlawful entry and detainer issued by a justice to recover the possession of land, if it appear to the justice by the answer of the defendant, or upon the trial of the defendant, or upon the trial of the warrant, that the title to the land in controversy will come or is properly in question between the parties, and the relation of landlord and tenant does not exist between them, the justice has no jurisdiction to try the merits of the cause and it is his duty to dismiss the warrant at the plaintiff's costs, (p. 134.)

2. If in such a case the justice has so dismissed such warrant, and an appeal be taken from his judgment to the circuit court, and the same state of facts appear to the satisfaction of such court either by the defendant's answer or upon the trial of such warrant upon such appeal, it is the duty of such court to dismiss the said warrant for want of such jurisdiction without prejudice to the plaintiff's right to institute any other action at law or suit in equity, which maybe necessary or proper to determine his right to the land in the warrant mentioned. (p. 138.)

3. A case wherein it was held that the title to the land in controversy between the parties would properly come in question on the trial of a warrant of unlawful entry and detainer. (p. 138.)

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

This case is a warrant of unlawful entry and detainer, brought before a justice of Wood county on June 11, 1880, by Thomas Hughes and Thos. Murphy, plaintiffs in error, against Martha I. Mount, then and still the wife of B. F. Mount, residing with him, to recover from her, the possession of a tract of land containing two hundred acres, to which the plaintiffs claim title under a deed dated March 81, 1879, from Walter Sands, special commissioner in the chancery cause of John 11. Davis, administrator of R. P. Davis, deceased, against B. F. Mount, Cyrus Hall and Elihu Davis, conveying to them as purchasers under the decrees m said cause "all the right, title and, interest of the said, B. F. Mount" in the said two hundred acres of land. What that interest of B. V. Mount was, does not appear. On May 10, 1879, the plaintiffs leased the said land to said B. F. Mount until March 1, 1880, who held over after the expiration of his his lease, and the plaintiffs on March 11, 1880, brought their warrant of unlawful entry (end detainer against him, before a justice, to recover from him the possession of said premises. It does not directly appear whether there was a judgment in favor of plaintiffs upon said warrant or not, but it does appear, that on March 26, 1880, the justice issued in favor of the plaintiffs a writ of possession against B. F. Mount, directed to any constable of said county, to place the plaintiffs in possession of said premises. This writ went into the hands of one Mehen, a constable of said county, on Mar oh 26, 1880, at 7} o'clock p. m., and was executed on March 29, 1880, at 5h o'clock p. m. (The premises were fourteen miles distant from Parkersburg.) Or. the next morning, finding the dwelling house on said premises locked up, and no person in the actual occupancy thereof, the defendant Martha I. Mount broke open and took possession of the house, and to oust her of her possession thereof, the plaintiffs brought against her their warrant ot unlawful entry and detainer.

On the calling of the ease (against) the defendant (Martha I. Mount) appeared before the justice and filed her answer to the plaintiffs' warrant duly verified, alleging that on the trial of said warrant the title to said land would come in question; setting out and asserting her title thereto, and showing how the same would come in question, which affidavit was as follows:

"State of West Virginia, Wood County, ss.:

"Thomas Hughes and Thomas Murphy v. Martha I. Mount." Action of unlawful detainer before John W. Mitchell, Esq., justice of the peace, Parkersburg district, in said county.

"Answer of Martha I. Mount to complaint of the plaintiffs in said action:

"The defendant Martha I. Mount denies that she unlawfully withholds from the plaintiffs the real estate mentioned in the summons in said action. She admits that she is in possession of one hundred and sixty-two acres of said land, but denies that 4he plaintiffs are owners thereof, and says further that one hundred and sixty-two acres of the land belongs to her; that she has full legal title to the same; that she is in possession under and relying upon her title; that she has legal title and an estate in fee simple in said one hundred and sixty-two acres of land; that her title is paramount and superior to any claim of title set up by plaintiffs; that plaintiffs got nothing under their purchase from Walter S. Sands, commissioner, mentioned in said summons, as to the one hundred and sixty-two acres; that defendant's title is superior to and exclusive of the title derived through said commissioner; that the defendant never was and is not now a tenant of the plaintiffs; that the defendant and those under whom she claims have been in possession of said property for over ten years; that the defendant's right to retain possession of the land has not expired; that the defendant owns the same in foe simple. And the defendant says further that the title to the said real property will come in question in said action, and she now sets forth the following facts showing that such title will come in question on the trial thereof on May 3d, 1879:

"Benjamin Mount and wife made to said Martha I. Mount a deed, and J. T. Mount and wife made, on May 14th, 1878, a certain other deed unto said Martha I. Mount, and the said two deeds taken together embrace, cover and include the land in the summons mentioned, and that the land embraced in said deeds is directly derived from John Husteacl and one Wilbur by deed executed about the1 year 1865 to Ezekiel Mount, and by said Ezekiel Mount to said Benjamin Mount and J. T. Mount, respectively; that the defendant's said superior title includes and covers all the laud in said summons mentioned except thirty-eight acres, to which defendant makes no claim, of which she is not in possession and as to which she disclaims all right, title and Interest, the said thirty-eight acres being property belonging, as she is informed, to one Michael Rose.

"The defendant says further that at the time of the oommencment of said action she was and now is the wife of B. E. Mount, and that she is living with him, and at the time of said commencement was living with him on said one bun- dred and sixty-two acres of land, and that the said one hundred and sixty-two acres belonged to said Martha I. Mount in her own right as her sole and separate property and estate.

"Martha I. Mount."

In reply to this the plaintiffs filed the following affidavit of the plaintiff', Hughes, in these words:

"Thomas Hughes, one of the plaintiffs, being duly sworn, says that the facts as stated in the affidavit of Martha I. Mount, defendant to this suit, are not true as he is informed and believes; and therefore denies the same, each and every one of the allegations therein made.

"Affiant further says that the title to said real estate cannot and will not come in question on the trial of this cause.

" Thomas Hughes.

" Subscribed and sworn to before me this 26th day of June, 1880.

"J. W. Mitchell,, /. P."

The case was tried by the justice, on the 26th of June, and on the 28th of June, 1880, he rendered judgment dismissing said warrant, at the plaintiffs' costs. From this judgment the plaintiffs obtained an appeal to the county court of said county, which on the 21st of December, 1881, was tried before a jury in the circuit court of said county, which under the instructions of the court, returned in favor ot the defendant a verdict of "not guilty." The plaintiffs thereupon moved the court to set aside the verdict and grant them a new trial, which motion the court overruled, and the plaintiffs excepted because of the instructions given to the jury, and because the court overruled their said motion for a new trial, and the court certified the substance of the facts proved upon the trial, and rendered judgment upon the verdict of dismissing the plaintiffs, the jury affirming the judgment of the justice ami dismissed the plaintiffs' appeal with costs to the defendant in that court and before the justice.

From this judgment of the circuit court a writ of error was allowed by this Court.

Walter S. Sands for plaintiffs in error.

Van Winkle Ambler for defendant in error:

1. The plaintiffs having at no time had lawful possession as against Mrs. Mount, could not maintain an action of unlawful detainer against her before a justice. Kincheloc v. Traeewell, 11 Graft. 587; Olinger v. Shepard, 12 Graft. 476; Corbitt v. Nutt, 18 Graft. 648; Power v. Tazwells, 25 Graft. 548; Tavener v. Mnerick, 9 Graft. 220.

2. The jurisdiction of the circuit court, on the appeal, was denied through that of the justice. The justice had no jurisdiction under our Code, because:

(a). Mrs. Mount had held possession for more than two years, before action brought.

(6). The title to real property was in question. 2 Kelley's Stat, ch. 110 sec. 60.

8. Our statute relating to married women, docs not abrogate the common law doctrine of marital union. The wife is not sui juris. Unless Mrs. Mount held under title, she could not be sued in this action, while living with her husband, on the premises withheld. Radford v....