Johnston v. Griswold

• Decision Date: 23 February 1875
• Citation: 8 W.Va. 240
• Court: West Virginia Supreme Court
• Parties: Johnston v. Griswold and Rodgers.

8 W.Va. 240

Johnston

v.Griswold and Rodgers.

Supreme Court of Appeals of West Virginia.

February 23, 1875.

1. In an action of ejectment there is no error in a judgment sustaining a special plea to the effect that since the last continuance of

the cause that the plaintiff had conveyed by deed all his title to another party, his name being stated as evidence in support of the plea can be given under the general issue: And, moreover, the Code provides, chapter ninety, section thirteen, that a defendant in ejectment shall plead the general issue only, which shall be that he is not guilty of unlawfully withholding, &c.

2. The county court of Virginia, or its clerk, had no authority, in the

year 1824, to admit to record a power of attorney executed in Kentucky, where its execution was acknowledged before a notary public, and certified by him. And a copy of such paper, authenticated by the clerk, is not competent evidence in place of the original.

This was a supersedeas granted on the petition of the defendants below, to a judgment of the circuit court of Greenbrier county, rendered on the 27th day of November, 1873, in a suit then pending in said circuit court, between Andrew D. Johnston and others plaintiffs, and Simeon Griswold and Cornelius Rodgers defendants.

The other facts appear in the opinion of the Court.

The Hon. Homer A. Holt, judge of said circuit court, presided at the trial below.

Samuel Price, for the appellants.

Adam C. Snyder and Robert F. Dennis, for the appellees.

Paull, Judge:

In the year 1856, the plaintiffs brought their action of ejectment against the defendants, in the county of Greenbrier, to recover the possession of a tract of land containing about eighty-five acres. The defendants pleaded not guilty, and the plaintiffs replied generally. Subsequently the defendants filed a special plea, as far as the land in controversy is concerned, alleging that since the last continuance of this cause, to-wit, on the 4th day of February, 1871, the plaintiffs conveyed all their title in the premises in question to one James Jarrett, and this they are ready to verify, wherefore they pray judgment, &c. To this special plea the plaintiffs demurred, and the court sustained the demurrer. The parties went to trial upon the issue of not guilty, and the evidence being heard, the jury found for the plaintiffs the premises in the declaration mentioned, in severalty, in fee simple; described, &c. The defendants moved the court to set aside the verdict and grant a new trial, which motion was overruled by the court, and judgment entered for the plaintiffs.

During the progress of the trial the defendants took a bill of exceptions, from which it appears that the plaintiffs, to sustain the issue on their part, offered, first, a grant from the Commonwealth of Virginia to Henry Banks, dated the 12th day of May, 1798. The plaintiffs then offered in evidence, from one of the deed books of Greenbrier county, a writing entered in said deed book, among other writings therein, which book was one of a regular series of deed books, in which the deeds and other writings of said county are duly recorded, purporting to be the record of a power of attorney from said Banks to one William Prentiss, with the certificates thereto attached, and which is fully set forth in the bill of exceptions.

The defendants objected to said record as evidence, and moved to exclude the same from the jury, because it did not appear that it had been acknowledged in such a manner as to entitle it to recordation at the time it was recorded. The plaintiffs then gave evidence proving who were the clerks, principal deputy and assistant, byone of which said paper was recorded, and by another of which the words "examined and delivered to John Mays," on the margin of said record, was made, and that the latter was a careful and exact officer, and who, in the opinion of the witness, who knew him well, and his custom of transacting his official business, would not have made such marginal entry, without having himself carefully compared said record with the original, from which the record was made, and found that they corresponded in every word; that these parties were all long since dead; that diligent inquiry for the original, in the clerk's office of Greenbrier county, from which said record was taken, was made, and that it could not be found. And thereupon the court permitted...