Low. v. Settle.
| Decision Date | 28 June 1889 |
| Citation | 32 W.Va. 600 |
| Parties | Low. v. Settle.(Snyder, President, Absent.) |
| Court | West Virginia Supreme Court |
In ejectment, when both parties claim to derive title from the same third person, the rule is well settled, that it is. prima facie sufficient for plaintiff to prove such common derivation of title without proving, that such third person had title to the land in controversy.
A plaintiff in ejectment against one in actual possession must recover on the strength of his own title, not on the weakness of his adversary's.
A deed conveying a tract of land by boundary, but excluding a tract of fifty acres theretofore sold to another other than the grantee in such deed, does not pass to such grantee legal title to said fifty acres, even though no deed for said fifty acres had been made to such other person, who purchased it.
J. W.-Davis for plaintiff in error.
J. A. Preston for defendant in error.
This cause has been before this Court heretofore, and the report of the decision then made is in 22 W. Va. 387, where many of its facts may be learned. It was in ejectment brought February 7, 1881, by Low against Settle in the Circuit Court of Fayette county. When the cause was. remanded from this Court, a second jury-trial was had in that court. Both parties claimed under Sarah Stuart. In September, 1837, Seth Huse purchased from Sarah Stuart by written agreement out of a large tract fifty acres described simply as "fifty acres of land on New river, including the upper improvement, that John Scott has in possession." Huse sold Settle this fifty acres in 1845 by writing providing, that, when the purchase-money should be paid, Huse should convey or cause it to be conveyed to Settle. The agreement between Huse and Stuart was a mere executory agreement not under seal, and provided, that Huse might take in more land at fifty cents per acre.
By Sarah Stuart's will she devised lands, of which she died seised, to her children and by a codicil empowered Samuel Price, her executor, "to convey any lands, that may be sold at the time of my death." These children had parties to divide this land between them, and they made a plat of the division, on which was marked, "Share E lot No. 5, 5, 083 J acres, assigned to Agnes Peyton;" and on this plat within the boundaries of "Share E," appears a figure, bounding on New river, and on it the words and figures, "Harrison Settle, fifty acres."
On the 12th of August, 1859, these children of Sarah Stu-"art entered into a deed executing such partition conveying the lots to one another, whereby lot E aforesaid was conveyed to Agnes Peyton under the language; "The tract or parcel of land designated in the report aforesaid as share E, lot No. 5, of the Loop lands, containing, exclusive of lands sold, 5, 083J acres, and bounded as follows:" inserting boundaries, which, as appears from said plat and the calls of the deed, follow the river and include this fifty acre Harrison Settle land.
By deed dated 22d April, 1874, Agnes Peyton and her trustees conveyed this lot 5 to Low reciting, that by re-survey it contained 6, 375 3/4 acres, "and, excluding 1, 575 13-160 acres surveyed out, contains 4, 792 107-160 acres;" and then giving boundaries, including the Settle tract. This deed to Low contained also the following languags: "The lands included within the boundary aforesaid, which are surveyed out and excluded from the quantity sold and hereby conveyed, are the following, to wit: * * * And Harrison Settle fifty acres, among other parcels."
In 1874 Settle employed a surveyor to survey the fifty acres, in order to obtain calls to get a dead for it, and the surveyor made a plat and delivered it to Settle, who took it to Price to obtain a deed. He was present at the survey and specifically directed how the lines should be run. He was told by the surveyor, that, as he wished it run, the improvement and his house would be left out, but he insisted upon so running it. Settle as a witness denied this. Samuel Price, executor of Sarah Stuart, made Settle a deed by the calls of said survey for said fifty acres, which is dated April 3, 1874, but was not delivered to Settle until March 5, 1878, and recorded March 28, 1878. Settle claims that his land lies on New river, as represented by said figure on the plat of partition between the Stuart children, while plaintiff claims, it should be limited to the Price deed; and between the bounds of the Price deed and New river there would be about fifteen acres, which is the land in controversy, and includes the Scott improvement. We have not the aid of the plat filed in the action of ejectment made under order therein. The plaintiff disclaimed any land within the deed from Price to Settle, and Settle disclaimed any land not within the limits the figure marked, "Harrison Settle fifty acres," on said partition plat. Defendant Settle as a witness stated, that he had been in his possession of the land in controversy ever since 1845, when he entered upon it under his purchase from Huse, and that Huse had been in possession from the date of his contract with Sarah Stuart in 1837 down to the time, when he delivered possession to Settle in 1845; that the land in controversy is part of the land purchased by him of Huse and so held by him in possession and is covered by the Scott improvement. Settle signed the following writing on the back of the agreement between Huse and him, by which he purchased the land: "Rec'd of Harlow Huse, Samuel Price's executor's, deed for the within described land, this 5th March, 1878."
On the trial the court gave four instructions asked by plaintiff, to which the defendant excepted, and refused two asked by defendant, to which he also excepted. The jury returned a verdict for the land in the declaration specified in favor of plaintiff' except the fifty acres described in the Price deed, which they found for defendant. Defendant moved for a new trial, which the court refused, and he excepted to this refusal, and judgment was rendered on the verdict, and Settle obtained this writ of error.
There were certain title papers given in evidence by plaintiff in the line of title prior to the ownership of Sarah Stuart, to which defendant objected as ineffectual to pass legal title, and which the court told the jury were effectual to do so. But, as both parties claim under Sarah Stuart, the plaintiff need not have traced his title further back than to her, to show that she had title, Laidley v. Land Co., 30 W. Va. 505, (4 S. E, Rep. 705), and we do not deem it necessary to decide the points raised by the first and second...
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