Ketchum v. Spurlock.
| Citation | 34 W.Va. 597 |
| Court | Supreme Court of West Virginia |
| Decision Date | 24 January 1891 |
| Parties | Ketchum v. Spurlock. |
Where a person is in possession of land, claiming it under a writing conferring upon him a right thereto, such possession is regarded as adverse prima facie against all persons except his vendor, where such writing is an executory agreement, contemplating a future conveyance; and, if such writing is a deed conveying the legal estate, it is adverse also to the vendor.
Where such person is in possession claiming under such deed by occupation, cultivation and inclosure, his possession has prima facie the quality or character of exclusiveness requisite as one of the elements constituting adversary possession.
X. Construction of Agreement Punctuation.
Bad grammar or punctuation will not vitiate an instrument or overrule or control its meaning.
Brown Jackson for plaintiff in error, cited 2 Min. Inst. 506; 1 Loin. Dig. 795; 2 Rob. 269; 1 Gratt. 186, 190; 25 Gratt. 141; 24 W. Va, 238 p't 1, Syll.; 6 S. & E. 21; 18 W. Va. 598; 10 Gratt. 231; 25 W. Va. 757.
J. E. Chilton for defendants in error, cited 26 W. Va. 630; 27 W. Va. 468; 24 W. Va. 239; 1 Gratt, 195; 28 W. Va. 52-54; 28 W. Va. 820 p't 1, Syll,; Id. 824, 825; 8 Gratt. 12; 2 W. Va, 187; 19 W. Va. 323; 27 W. Va, 511.
This is a writ of error sued out by Melvin Spurlock to a judgment of the Circuit Court of Cabell county, rendered 23d February, 1888, in an action of ejectment brought by Alice Ketchum and others against Spurlock.
The assignment of error is that the court refused to set aside the verdict of the jury finding the land for the plaintiffs; and under this assignment the briefs of appellant's attorneys contend that the verdict should have been set aside First, because the plaintiffs failed to make out a prima facie case; second, because the defendant showed a better title.
Let us then, first, see whether the plaintiffs showed a case justifying their recovery -prima, facie. The plaintiffs showed no derivation of title from the State, but gave in evidence a deed dated August 11, 1866, from Richard Adkins to Samuel Adkins, conveying the tract of fifty acres of land in controversy, and proved that at the date of said deed, in 1866, "said Samuel Adkins took possession of the land mentioned and described in said deed, and set out in the declaration, under and by virtue of said deed, and held the same by occupation, cultivation and inclosure continuously from that date till his death, which occurred in 1880; that since the latter date the widow and heirs at law of the said Samuel Adkins, deceased, held the said land continuously by occupation, cultivation and inclosure till some time in 1884, when the said defendant took actual possession of about twenty five acres of the said land, and has ever since held and occupied the same; that the said Samuel Adkins caused the said land to be entered on the landbook of said county, and charged with taxes, and paid all taxes so charged thereon till his death; that since his death the said land was continued upon said land-books in the name of Samuel Adkins' heirs, the plaintiffs, since the death of Samuel Adkins, and paid the taxes charged thereon, and he in his lifetime paid the taxes to the time of his death."
Thus the plaintiffs relied, not on title derived from an original source, but on title arising from adversary possession under the statute of limitations under the color and claim of title created by said deed from Richard Adkins to Samuel Adkins. That adversary possession for the period fixed by the statute operates to create or transfer to the party in possession a title which will enable him either to defend his possession or recover possession against a title once the better title, is well settled. Taylor v. Burnsides, 1 Gratt, 165; Core v. Faupel, 24 W. Va. 242; iMv. jffaM, 27 W. Va. 480; 1 Lomax, Dig. tit, 24, § 16, p. 621; 3 Wait, Act. & Def. 19; Nowlin v. Reynolds, 25 Gratt. 137.
But the counsel for appellant contend that the facts proven as certified by the bill of exceptions from which I have above quoted, do not make out a case of adversary possession, because from them it does not appear that such possession was adverse or exclusive. I think the adverse character of the possession in a legal sense clearly appears. There is the deed from Richard Adkins to Samuel Adkins purporting to convey the legal title, and possession under it, and this imports a claim against the world, and, taken alone, makes it hostile against even Richard Adkins, the grantor; for while the possession of a vendee under an executory contract contemplating a future conveyance is not hostile or adverse to the vendor, yet, where the purchaser is in possession under a deed purporting to convey the land he is holding adversely to the world, including the vendor from whom his title and possession are derived. Core v. Faupd, 24 W. Va. 239; Nowlin v. Reynolds, 25 Gratt. 137; opinion in Clarke v. McClure, 10 Gratt. 305. How could the adverse character of the possession be proven? Not by a witness stating that the holding was adverse. That would be stating matter of opinion of the law. The facts being given, the law determines whether the possession is or is not adverse. When once we know that possession is held by a person under a claim of title in himself, and the possession is of the kind required by law, and there is nothing shown to deprive it of its hostile character, it is hostile and adverse, and, where the party is claiming under an instrument purporting to pass the legal title, it is adverse even to the grantor. Thus, so far as regards the character of possession, that is, whether it was adverse or not, it would be adverse against defendant, even if he derived title from Richard Adkins.
Next, was such possession exclusive? Why is it not exclusive? Here is a sole grantee in possession under his deed, in actual possession "by occupation, cultivation and inclosure," holding against the world in a legal point of view, or under a legal presumption, as I think I have shown, without any appearance of a community of interest or possession with another, without a syllable of evidence to suggest that anybody else participated in the possession of the tract until the entry of the defendant, and we are asked to say that it is not an exclusive possession. The law on such facts will say that it is exclusive prima facie. The case of Core v. Faupel, 24 W. Va. 238, cited by counsel for appellant, lays down the proposition that, "to constitute such possession as will bar the title of the legal owner of the lamb, it must be adverse, actual, visible, and exclusive, continuous, and under a claim or color of title;" and that, "if any one of these constituents is wanting, the possession will not effect a bar of the legal title." The only elements of this definition of adversary possession pointed out by appellant's counsel as wanting in the present case arc the elements of adverseness and exclusiveness; and we hold that these qualities are not absent from the possession in the present case, and that the possession in it fills the measure set up in the case of Core v. Faupel.
The next question is, do the plaintiffs connect themselves with Samuel Adkins's right and possession by showing that they are his heirs; for they sue as such? This depends largely upon the grammatical construction and punctuation of one of the clauses which I have quoted above from the certificate of facts. After stating that Samuel Adkins was charged with and paid taxes during his life, the clause in question states "that since his death the said land was continued upon said land-books in the name of Samuel Adkins's heirs, the plaintiffs, since the death of Samuel Adkins and paid the taxes charged thereon, and he in his lifetime paid the taxes to the time of his death." The appellant's counsel would place a semi-colon after the word "heirs," and make the word "plaintiffs" the nominative to the verb "paid," which would punctuate the plaintiff's out of this Court, for there would then be nothing to show that the plaintiffs are heirs of Adkins; while the other side would make the noun "plaintiffs" in the objective case, as a noun in apposition to the noun "heirs," and thus make the language assert that the plaintiffs are such heirs. The composition is bad; but the plain intention of the language is to declare that Samuel Adkins was charged with and paid taxes in his...
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Ketchtjm v. Spurlock
... ... Brown & Jackson, for plaintiff in error.J. E. Chilton, for defendants in error.Brannon, J. This is a writ of error sued out by Melvin Spurlock to a judgment of the circuit court of Cabell county, rendered 23d February, 1888, in an action of ejectment brought by Alice Ketchum and others against Spurlock. The assignment of error is that the court refused to set aside the verdict of the jury finding the land for the plaintiffs; and under this assignment the briefs of appellant's attorneys contend that the verdict should have been set asideFirst, because the plaintiffs ... ...