Laidley v. Land Co.

• Citation: 30 W.Va. 505
• Court: West Virginia Supreme Court
• Decision Date: 26 November 1887
• Parties: Laidley v. Land Co.

30 W.Va. 505

Laidley

v.Land Co.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1887.

Decided November 26, 1887.

1. Husband and Wife Conveyance to Wife Separate Estate.

Where, by deed, land was conveyed directly to a married woman, prior to the adoption of the Code of 1868 of this State, such eonveyanee did not ereate in her a separate estate. (p. 507.)

2. Husband and Wife Conveyance to Wife.

Under sueh conveyance, the husband became entitled to a freehold estate in the land, which would continue at least during the joint lives of the husband and wife, with remainder in fee in the wife. (p. 509.)

3. Ejectment Title to Support.

In actions of ejectment, where both the plaintiff and defendant derive title from the same third person, the rule is well settled that it is prima facie sufficient for the plain tiff to prove such common derivation of title, without proving that such third person had title to the land in controversy. (p. 509.)

4. Ejectment Evidence.

In such case, the plaintiff may introduce in evidence the title under which the defendant claims, without impairing his right to question the legal effect of such evidence. (p. 509.)

5. Certificate of Acknowledgment Married Woman.

The fourth point in the syllabus of the case of Blair v. Sayre, 29 VV. Va. 604, 2 S. E. Rep. 97, approved and reaffirmed. (p. 510-18.)

6. Certificate of Acknowledgment.

A certificate of the privy examination of a married woman in the following words, (omitting the descriptive portion,) and the wife," being examined by me [the justice] privily and apart from her husband, and having the deed aforesaid fully explained to her, she acknowledged that she had willingly signed, sealed and delivered the same, and wished not to retract it," held to be fatally defective, because it does not show that the wife both acknowledged the deed and declared that she had willingly executed the same. (p. 511-18.)

J. D. Laidley and J. H & J. F. Brown for plaintiff in error.

II. Ferguson and Simms & Enslow for defendant in error.

Snyder, Judge:

Writ of error to a judgment pronounced December 22, 1884, by the Circuit Court of Cabell county, in the case of John B. Laidley against the Central Land Company, a domestic corporation. The action is ejectment, and was commenced in April, 1882, to recover the possession of 240 acres of land in the city of Huntington, Cabell county, in which the plaintiff claims an estate in fee. There was a trial by jury on the issue of not guilty, and a verdict and judgment for the defendant, The plaintiff obtained this writ of error. Of the errors assigned by the plaintiff in error it is only necessary to notice the two following: First, that the court erred in admitting certain evidence offered by the defendant; and, second, that it erred in refusing to give the instruction asked for by the plaintiff. All the evidence introduced on the trial is certified in the record, from which these facts appear: By deed dated August 18, 1865, Rebecca J.Everett conveyed to Sarah H. G. Pennybacker, in fee, the land in controversy. Before and at the date of this deed, the said Sarah was the wife of John M. Pennybacker, and so continued to be until the death of the latter, which occurred May 5, 1881. After the death of her husband, the said Sarah, by deed dated January 26, 1882, conveyed said land in fee to the plaintiff. This constitutes the documentary evidence of the plaintiff's claim of title. The defendant's claim of title is as follows: A deed, dated February 25, 1870, duly signed and sealed by said John M. Pennybacker and Sarah, his wife, purporting to convey said 240 acres of land to C. P. Huntington, in fee, with covenants of general warranty of title; and a deed from said Huntington to the defendant, the Central Land Company, for said land, dated October 16, 1871. At the date of the deed from Pennybacker and wife to Huntington, the latter was placed in possession of said land, and when Huntington conveyed to the defendant he placed it in possession of the land, and the said Huntington and the defendant have had and held the exclusive, actual possession of the land, claiming it in fee under their respective deeds aforesaid. The defendant also claims some interest in this land by virtue of a certain deed from Albert Laidley and wife to Huntington, and by deed from Huntington to the defendant; but as to that interest, whatever it may be, there is no controversy in this Court, and therefore it will not be considered by us on this writ of error.

1. In July, 1872, Mrs. Pennybacker brought a suit in equity against her husband and others, in the Circuit Court of Cabell county, to have the purchase-money paid for the 240 acres of land now in dispute declared to be her separate estate. In her bill she alleges that said land had been paid for by her father, and conveyed to her by Rebecca J. Everett by the deed hereinbefore mentioned, dated August 18, 1865. She claims that she held said land as her separate estate, and is entitled to hold the proceeds arising from the said sale thereof to her own separate use, free from the control or debts of her husband. In this suit a decree was entered, granting substantially the relief prayed for by the bill. The record of this suit was offered in evidence in this case by the defendant, and the plaintiff objected; but the court overruled the objection, and allowed the said record to be read, and the plaintiff excepted. This action of the court is here assigned as error. The only purpose for which said record could be used in this action would be to show that the land now in controversy was the separate estate of Mrs. Pennybacker, and thus subject her, and those claiming under her, to the bar of the statute of limitations, regardless other coverture. Sections, ch. 104, Code. Whether or not Mrs. Pennybacker had a separate estate in the land could only be determined from the deed which conveyed to and vested in her the title to the land. This was the deed from R. J. Everett to her, which was already in evidence. This deed was made in 1865, before our statute (Code, ch. 66) authorizing the vesting of a legal estate in land in a married woman. The land was not conveyed to a trustee for the use of Mrs. Pennybacker, but to her directly. This conveyance, by the law then in force in this State, immediately upon its taking effect, vested in the husband of Mrs. Pennybacker at least an estate for the joint lives of the husband and wife, with a remainder in fee in the wife. Laughlin v. Fream, 14 W. Va. 322; Dejarnette v. Allen, 5 Grat. 499, 513; 1 Minor Inst, 311, 312. It is, therefore, very clear that this record was not relevant evidence in this case for any purpose, and consequently the court erred in admitting it,

2. The important question, and the one principally discussed and relied on by the plaintiff in error in this Court, is the ruling of the court on the instruction to the jury. The said instruction, which was requested by the plaintiff, is as follows: "The court instructs the jury that the deed executed by J. M. Pennybacker to C. P. Huntington, bearing date the twenty fifth day of February, 1870, offered in evidence by the plaintiff, and purporting to be also signed by S. H. G. Pennybacker, and purporting to be also acknowledged by Sarah H. G. Pennybacker, wife of the said John M. Pennybacker, is a good deed for the purpose of conveying the interest of John M. Pennybacker in the lands therein mentioned. And the court also instructs the jury that if they find from the evidence that the said Sarah 11. G. Pennybacker, at the time of the execution and acknowledgment of said deed, was the wife of the said John M. Pennybacker, then the said deed is not valid, so far as it purports to be her deed, and does not convey any interest she may have had in said land, and cannot operate against her or her grantees by way of estoppel." The court gave the first clause of said instruction; but, upon objection by the defendant, refused to give to the jury the second clause, including all that part following the words " therein mentioned." The defendant in error contends that because the plaintiff below put the deed in evidence to which the certificate of acknowledgement referred to in the instruction relates, he cannot question or impeach said certificate. I do not think there is anything in this contention. It is true, the plaintiff did offer this deed and certificate thereon in evidence, but when he did so he stated that he would thereafter ask the court to instruct the jury as to the legal effect of the deed. But I am not certain that it was at all necessary to accompany the introduction of the deed with such statement. It seems to me he would have been entitled to have the court pass upon the legal effect of the deed if he had offered it in evidence without any reservation. The facts before stated show that both the plaintiff and the defendant claim title to the land in controversy under the same derivation of title. They both claim under Mrs. Pennybacker as their common grantor. It is a well settled rule in actions of ejectment that, where both the plaintiff and defendant claim under the same third person, it is prima facie sufficient for the plaintiff to prove such common derivation of title, without proving that such third person had title. 2 Greenl. Ev., § 307; Harmon v. Hannah, 9 Graft. 146; Boiling v. Teel, 76 Va. 487; 2 Minor Inst. 869; iVewlin v. Osborne, 2 Jones (N. C.) 164; Worihamv. Cherry, 3 Head 468. It being thus proper for the plaintiff to prove a common source of title, it follows necessarily that he may introduce the title under which the defendant claims in order to show that he derived his title from the common source. Bedford v. Urquhart, 8 La. 239, 28 Amer. Dec, 137; Royston v. Wear, 3 Head 8. Both uj)on principle and authority, it seems to me that the plaintiff here had the right to introduce the deeds under which the defendant derived title, without in any manner impairing his right to...