Jennings v. Marston

• Decision Date: 14 June 1917
• Citation: 92 S.E. 821
• Parties: JENNINGS. v. MARSTON.
• Court: Virginia Supreme Court

(121 Va. 79)

92 S.E. 821

JENNINGS.

v.MARSTON.

Supreme Court of Appeals of Virginia.

June 14, 1917.

Error to Circuit Court of City of Williamsburg and of James City.

Action by Ann E. Marston against A. W. Jennings. Judgment for plaintiff and defendant brings error. Reversed and rendered.

S. O. Bland, of Newport News, and Henley, Hall & Hall, of Williamsburg, for plaintiff in error.

Frank Armistead and B. D. Peachy, Jr., both of Williamsburg, for defendant in error.

KELLY, J. This is an action of ejectment brought by Ann E. Marston against A. W Jennings.' We will hereinafter designate these parties, respectively, as plaintiff and defendant, in accordance with their positions in the circuit court. There was a judgment below for the plaintiff upon a demurrer, which she interposed to the evidence, and thereupon the defendant brought the case here upon a writ of error.

No effort was made by the plaintiff to trace title to the commonwealth, and the first question presented for our decision is whether the title under which she claims is shown to have been derived, as she contends, from a source common with that of the defendant.

The tract of land described in the declaration is known as the "Badkins Tract, " and its southern boundary, as called for in all of the deeds in evidence describing the same, is the "Cranston Mill Pond." This pond or dam has been down for a number of years, and the stream which formerly flowed into and made it now runs through the land once constituting its bed. The land in actual dispute lies between the middle thread of the stream and what was formerly the edge of the pond on the side next to the Badkins tract. (The plaintiff's ultimate contention, denied by the defendant, is that the deeds under which she claims and which call for the pond as a boundary carry her title to the center of the stream.)

The plaintiff's documentary title, so far as shown, is as follows: (1) Deed of trust (to secure a debt), dated January 20, 1886, from A. H. and Charles Cranston (alleged common grantors) to H. B. Ratcliff, trustee; (2) deed, dated October 6, 1890 (consummating a foreclosure and sale under the trust deed), from H. B. Ratcliff, trustee, to D. W. Marston; (3) deed, dated June 1, 1914, from the heirs at law of D. W. Marston, deceased, to Ann E. Marston, the plaintiff. Each of these deeds convey the Badkins tract, and, as stated, describe it as bounded on the south by the mill pond.

Having traced her own title as above, the plaintiff then introduced two deeds in the defendant's chain of title which, with their, recitals and certain oral and undisputed evidence, show that the defendant's title was derived from Charles Cranston in his own right and as the survivor of his brother, A. H. Cranston. These two deeds, so far as they are material in this connection, were as follows: (1) deed, dated January 15, 1913, from Charles Cranston and wife to the Cambridge Manufacturing company for "a certain water grist mill formerly known and called Bush's mill * * * and the mill pond which, by estimation, is ninety acres of land, be the same more or less, covered with water, and about thirty-five acres of land, be the same more or less, being a portion of the hundred acres belonging to said mill property." The deed contains no further description of the 90-acre tract, but describes the 35 acres by metes and bounds; (2) deed, dated April 28, 1914, from Cambridge Manufacturing Company to A. W. Jennings, the defendant in this case. This deed conveyed the 99 acres and the 35 acres by substantially the same description as above; and each of the two deeds warranted the title generally as to the latter, and specially as to the former tract. It is under the conveyance of the 90 acres that the defendant claims title to the land in controversy.

It will thus be seen that the title of the plaintiff and defendant, respectively, is each derived from the same grantors, Charles and A. 11. Cranston; but at this point the question arises, whether conveyances from the same grantor of separate tracts of land, although they be adjoining tracts, necessarily constitute, in contemplation of law, a common source of title. It is contended by the plaintiff that the terms, "common grantor" and "common source of title, " are synonymous, and may always be used interchangeably. We do not think this can be maintained as a proposition universally and necessarily true. In most cases the facts are such that the two terms do mean the same...