Jarrett v. Stevens.

• Decision Date: 09 April 1892
• Citation: 36 W.Va. 445
• Court: West Virginia Supreme Court
• Parties: Jarrett v. Stevens.

36 W.Va. 445

Jarrett

v.Stevens.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1892.

Decided April 9, 1892.

1. Ej ectment Declaration Pleading.

An allegation in a declaration in ejectment that the plaintiff "was possessed in fee" of the land is a sufficient allegation that that the plaintiff claims in fee.

2. Seal.

Commonwealth's grant without seal is invalid.

3. Adverse Possession Bar,

To tack different adverse possessions to make up the period of bar the persons holding such possessions must be connected by privity of title or claim.

4. Adverse Possession Bar.

Adversary possession must be continuous for the period prescribed as a bar.

5. Adverse Possession Bar,

Where there is no paper giving color of title defining the extent of adversary possession, but it is only under claim of title, the possession will be limited to inclosure, clearing, or actual im p movement.

6. Fo rfeiture Title.

A person claiming the title to land vested in the State under the second class specified in section 3, Art. XIIT, of the constitution need not have had possession.

7. Ej ectment Outstanding Title.

An outstanding title, which will defeat an action of ejectment n ust be one that is subsisting and superior at the commeneeu ent of the action.

8. Instructions.

It is the right of counsel to submit instructions, and have them passed on by the Court; but where they are submitted after the jury have retired, and the Court refuses to receive them, this C >urt will not reverse the trial-court, unless it affirmatively appear that it manifestly abused its large discretion in such a matter.

J. W..Davis and W. P. Backer for plaintiff in error cited Hutch. Land Tit. § 273; 24 W. Va. 238; Hutch. Land Tit. § 34,; Id. 368-380; Id. 384; Id. 365; 60 Mo. 420; 38 Tex. 591; 50 Mo. 549; 1 Stark. Ev. 215; 7 Cow. 239; 5 Mass. 334; 2 Caine 129; 12 S. E. Rep. 832.

J. W. Harris, for defendant in error cited 25 W. Va. 131; 13 S. E. Rep. 352; 15 East 292; 3 A. E. Marsh. 322; 17 Md. 49; 91 Am. Dec. 523; 2 Greenl. Ev. § 278; 1 Greenl. Ev. § 10c et seq.; 3 Waite Act. & Def. 109; 78 Va. 602 * 13 S. E. Rep. 33; Const. Art. XIII, s. 3.

Brannon, Judge:

In an action of ejectment in the Circuit Court of Greenbrier by Joseph Jarrett against Joseph Stevens, there was a judgment for plaintiff, and Stevens brought the case here.

The declaration alleges that the plaintiff "was possessed in fee" of the land in suit, and it is urged that it is bad in the fact that it does not state that he claimed title in fee, as the statu: e requires it to state "whether he claims in fee, or for his lie, or the life of another, or for years, specifying such lives, or the duration of the term."

The statute does not have for its object that the declaration shall state that he claims, for the plaintiff's suing shows an intent to claim; but the object is to show the duration of his estate, so as to show what judgment shall be given, and the effect of the recovery. Saying that the plaintiff was possessed in fee is equivalent, in effect, to an allegation that be was seised in fee, or that he owned or claimed in fee. Possession is one of the elements of title, and is prima facie evidence of title; and when possession and right unite the title is perfect a conjunction of right and possession.

Possession implies that it is held under title. 20 Vin. Abr. 278; 2 Bl. Comm. b. 3, p. 199. Steph. PI. p. 286, speaking of alleging title, lays down that it is often sufficient to allege a title of possession, and that, as to corporeal hereditaments, the form is, either to allege that the close was the "close of" the plaintiff, or that he was ''lawfully possessed of a certain close." Ejectment was a possessory action, and, though now the effect of its judgment is that of a real action, yet for this question we may still regard it possessory, in that it alleges a trespass against the possession, and seeks recovery of possession. This declaration alleges not merely that plaintiff was in possession, and that it was invaded by wrongful entry, but that he was possessed in fee, importing a title or claim in fee. The forms of precedents alleged that the plaintiff was possessed for the term specified. Rob. Forms, 171. Here the allegation is that he "was possessed in fee." Surely there can be no misunderstanding as to the extent of the plaintiff's claim as to duration of his estate. The form might be improved, under our statute, by making the allegation that plaintiff was possessed of and claims in fee certain land, but this form is one extensively used for years in this State, and J think is good.

Objection is made to the admission of a deed from Sarah Massey to P. L. Massey, and from said Massey to II. O. Middleton. As they were left in evidence only as color of title, and no evidence whatever was given touching color of title under them, they are immaterial. As color of title it would make no difference whether the recitals in the Sarah Massey deed are evidence or not. The question of authentication of the other deed might arise had any evidence of possession under it been given.

I notice next the defence made by Stevens, based on an alleged outstanding superior title preventing a recovery by the plaintiff. On the trial plaintiff first introduced a grant from Virginia to William R. Wood, dated August 1, 1857, for 1 wo hundred and sixty eight acres of land in Greenbrier county, and papers to connect himself with said grant; and thei the plaintiff also introduced a grant from Virginia to Joseph Massey, dated November 20, 1797, for six thousand acres, and papers to connect himself with that grant. Afterwards the defendant moved to exclude from the jury the Massey grant and all papers introduced by plaintiff* to connect himself with it as tending to show title in the plaintiff, and the court excluded the same but left said papers and grant in evidence as color of title.

It is upon this Massey grant that the defendant relied to show a superior outstanding title to defeat the plaintiff's recovery. The plaintiff contends that, as the Massey grant was only before thejury to show color of title, and as the defendant did not offer it himself to show outstanding title, it can not be considered for that purpose. As the defendant by his motion obtained the action of the court excluding: he Masse}7 grant, and it was left in the case as documentary evidence for one only purpose color of title and be did not ask its introduction, we are of opinion it was in evidence for such limited purpose, and that the defendant having excluded it is estopped from making such use of it.

B it, according to the copy of the grant, the grant was witl out the seal of the commonwealth. The act of May, 1779, in the form of grant, and by express enactment, required such seal. The grant is an act of great solemnity, and can only be issued as the law directs. While the common-weath's grant can not generally be collaterally attacked, yet, f it be void on its face, it may be. 2 Lomax, Dig. 388; Patterson v. Wynn, 11 Wheat. 380; Alexander v. Greenup, 1 M inf. 134; Bledsoe v. Wells, 4 Bibb, 329. In such case we have no need to bring in matters dehors the grant, but itsel: 'affords record evidence of the matter invalidating it.

Ir the Virginia Court of Appeals in Carter v. Edwards, 13 S. E. Rep. 352, it seems to be conceded that the want of a seal would invalidate a grant. A deed of an individual will not pass land without seal. Cromwell v. Tate, 7 Leigh. 301; Pratt v. Clemens, 4 W. Va. 443; 2 Minor, Inst. 651. I do not see why it is not indispensable in a commonwealth's grant. It is the highest evidence of its authority in the act, the sigaum or mark of the genuineness of its act, and of its finality, it is the sign of sovereignty.

In Doe v. Roe, 14 Ga. 252, though the decision was that there was evidence to show there once had been a, seal, it seems conceded that a seal is indispensable to a state grant of land. The court said: "It is the signature of the governor and the great seal which give it effect and validity."

In Hunter v. Williams, 1 Hawks. 221, the court said public lands could be granted only as the legislature authorized; that, as that required a grant to be authenticated by the governor, and countersigned by the secretary, and as the grant involved was not so countersigned, it was the same as if no mode had been adopted, and was held void. My own opinion is, the want of a seal invalidates a patent. If so, this grant would not show legal title outstanding.

Now, as to instructions refused defendant. They were based on the Massey grant, and propound legal propositions of outstanding superior title arising from it; and whether these instructions do or do not present the law correctly, as there was no basis for them in the evidence, for reasons above given, the defendant is not prejudiced by their refusal.

Next, as to instructions given on motion of plaintiff. The defendants relied upon adverse possession. Without detailing evidence, it is enough to say that Stevens sought to show that he himself had held possession of a six and a half acre field long enough to protect himself against the action, and also sought to connect or tack to his possession a former possession by Henry Forren; and there was evidence tending to show that Forren held under John I. Schermerhorn, while he derived title constituting his color of title from a judicial sale of land of /John F. Schermerhorn and Eliza L. Schermerhorn.

Plaintiff's instruction No. 1:

"If the jury believe that Henry Forren went into possession of the six and a half acres of land in controversy under one John I. Schermerhorn, and that the defendant afterwards took possession under claim or color of title derived from John F. Schermerhorn, and that there was no privity of estate between John I. and John F. Schermerhorn, then the possession of said Forren of said six and a half acres under Johr I. S. can avail the defendant nothing in his defence of adversary possession under...