Lucas v. Hensley.

Decision Date06 November 1917
Citation81 W.Va. 239
CourtWest Virginia Supreme Court
PartiesGeorge T. Lucas v. Robert Hensley et al.

1. Lost Instruments Lost Deed Title Evidence.

To establish title to land under an. alleged lost deed, on parol testimony, proof that it existed, and of its contents, must be clear and conclusive. (p. 240).

2. Same.

A case in which, by the application of the foregoing rule, the evidence is held to be insufficient to establish title to the land in controversy in the plaintiff under «an alleged lost deed. (p. 242).

Error to Circuit Court, Cabell County. Ejectment by George T. Lucas against Robert Hensley and others. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Vinson & Thompson, for plaintiff in error.

Maynard F. Stiles and Frank Lively, for defendant in error.

Ritz, Judge:

Defendants complain of the judgment of the circuit court of Cabell county in an action of ejectment by which the plaintiff recovered a tract of land containing something more than seven hundred acres, situate in Logan county, West Virginia. It is admitted that this tract of land is a part of a large tract owned by John Dempsey in his lifetime, and that the defendant United States Coal & Oil Company is the owner of this Dempsey land, unless Dempsey before his death conveyed away the parcel involved in this suit. The plaintiff claims under a deed executed to him by William Lucas and wife, dated the 25th day of November, 1911, and under a conveyance alleged to have been made by John Dempsey in the year 1864 to William Lucas, which conveyance it is alleged was destroyed without having been recorded. The defendants insist that the evidence introduced to establish this conveyance is not sufficient for that purpose. It is conceded that unless this conveyance is established the plaintiff must fail. Many exceptions were taken to the admissibility of evidence, and to the competency of witnesses introduced during the trial of the case, but in passing upon the sufficiency of the testimony offered to establish this conveyance we will treat all of the evidence introduced as competent.

In considering the evidence introduced upon this subject we must not lose sight of the principles of law which govern in cases where it is sought to substitute for a deed parol evidence of its prior existence. The spirt of our law is that title to land shall pass only by deed or will, and where it is sought to set up title under a lost deed, the evidence of the execution of such deed, of the contents thereof, and of its delivery, must be clear and convincing, approaching in dignity the conclusiveness of a written instrument. This rule has been laid down and adhered to by this Court and the Supreme Court of Appeals of Virginia without exception, and we think it is a rule based upon sound considerations of public policy. The opportunities for the perpetration of fraud in establishing titles by proof of lost instruments would be so great unless the rule was thus strictly enforced that uncertainty of land tenures would result, and the mischief thus produced would be very much greater than any injustice which may follow, from the application of such a rigid rule. In the case of Telluric Co. v. Bramer, 76 W. Va. 185, it was sought to establish title to the oil and gas in a tract of land by proof of a lost deed. In that case one of the grantors in the deed, the other being dead, testified to the execution of the deed; that it had been signed and acknowledged by himself and his co-grantor; that it conveyed a onehalf interest in the oil and gas in a particular tract of land. In addition to this, certain memoranda made by the grantee at the time of the transaction were introduced showing that he had made such a purchase as that indicated by the oral testimony of the grantor. It was held, however, that the evidence was insufficient to establish a lost deed. The evidence of the grantor upon which reliance was had was given twenty years after the purported execution of the paper.

He was a very old man, past the age of ninety years, and the court held that his evidence was insufficient to establish a lost paper rising to the dignity of a muniment of title. In the case of Board v. Callihan, 33 W. Va. 209, it was sought to recover upon a lost bond. It will be observed that the paper sought to be established in that case by parol evidence did not require in its execution the formality and certainty of a deed; it did not pass title to land, but was simply evidence of an obligation on the part of the one executing it to the payee. In that case three witnesses testified as to the existence of the bond sued on. The first testified that he saw the bond two years after the purported date of its execution; that he read it carefully at that time; that it provided for the payment of fifteen hundred dollars with interest from its date; that it bound the heirs and executors of the obligor; and that it was payable to the plaintiff. This witness was eighty years old at the time he gave this testimony, and it was shown that he was not familiar with obligations of this kind, and did not recollect ever having seen any other obligation of the same kind. It will be observed that this witness did not testify that he had seen the obligor sign the bond. The testimony of the second witness was substantially the same as that of the first. He saw the bond two years after the purported date of its execution, and he gives its contents substantially as given by the first witness. The third witness, however, was present at the time of the execution of the bond; he saw it delivered by the obligor to the obligee; he read it at that time; tells what was in it, and specifically gives its provisions. It was shown that all of these witnesseswere more or less interested in establishing this obligation; that a long time had elapsed; and because of these facts, aswell as because of the strict rule enforced in establishing: lost writings by parol evidence, it was held that the bond was not established, and no recovery was allowed. Other decisions passing upon this question and laying down the rule as above stated are: Barley v. Byrd, 95 Va. 316; Carter v. Wood, 103 Va. 68; Smith v. Lurty, 108 Va. 799; Johnson v. McCoy, 112 Va. 580; McLin v. Richmond, 114 Va. 244; Thomas v. Kibble, 2 Va. Dec. 321, 24 S. E. 241; Dunnavanl v. Dunnavant, (Va.) 91 S. E. 138'.

In this case there is but one witness who claims to have seen Dempsey execute this deed. This is the mother of the plaintiff. At the time she testified she was eighty-four years of age. She states that she could neither read nor write. Her evidence is in effect that about the year 1860 she married William Lucas; that before she was married Dempsey told tier that William Lucas was his natural son, and that he was going to make provision for him out of his estate; that when they were married they moved into a little cabin upon the tract of land in controversy and remained there for a few years; that during.the Civil war her husband was away part of the time, and during that time they removed from this cabin; that after her husband returned from the war in 1864 they were moving back from Peck's Mills, where the family had stayed, and being overtaken by a storm stopped at the residence of a man by the name of Fillinger; that her child was ill and they sent for Doctor Hugh Bryant to attend the sick child; that while they were there John Dempsey, the owner of the land came in; that in the course of the conversation he asked Lucas why he did not go back on the farm to reside; that it was his, and that he ought to go back and take care of it; that Lucas replied that he did not care to go back there under the uncertain...

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  • Sandy M. v. Donald M.
    • United States
    • West Virginia Supreme Court
    • October 26, 2023
    ...and importance of a muniment of title, the evidence of its former existence, loss, and contents must be clear, strong, and conclusive."). In Lucas, the Court reiterated its prior holdings in new syllabus point: "To establish title to land under an alleged lost deed, on parol testimony, proo......

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