Marburt v. Jones

• Decision Date: 08 June 1911
• Citation: 112 Va. 389,71 S.E. 1124
• Parties: MARBURT et al. v. JONES et al.
• Court: Virginia Supreme Court

112 Va. 389

71 S.E. 1124

MARBURT et al.

v.JONES et al.

Supreme Court of Appeals of Virginia.

June 8, 1911.

Rehearing Denied September 14, 1911.

1. Mortgages (§ 372^*)—Agreements by Mortgagor—Effect—Title of Purchaser.

An agreement by a mortgagor, after giving the deed of trust, does not affect the rights of the trustee or his purchaser.

[Ed. Note.—For other cases, see Mortgages, Dec. Dig. § 372.*]

2. Adverse Possession (§ 46*)—Interruption.

P., being in possession under a deed from defendant, made an agreement verbally acknowledging plaintiffs ownership, without defendant's knowledge. Later P. mortgaged the land, and defendant purchased under the deed of trust. Held, that the parol agreement did not interrupt defendant's adverse possession.

[Ed. Note.—For other cases, see Adverse Possession, Dec Dig. § 46.*]

3. Trial (§ 296*)—Instructions—Cure of Error.

Omission from an instruction of holding under color of title as an element of adverse possession was cured by another instruction requiring that element.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713; Dec. Dig. § 296.*]

4. Ejectment (§ 93*)—Evidence—Sufficiency.

Evidence in ejectment held insufficient to warrant verdict for plaintiff.

[Ed. Note.—For other cases, see Ejectment, Dec. Dig. § 93.*]

5. Ejectment (§ 9*)—Rights to Recover.

Plaintiff in ejectment must recover, if at all, on the strength of his own title, and not on the weakness of defendant's.

[Ed. Note.—For other cases, see Ejectment, Cent. Dig. § 18; Dec. Dig. § 9.*]

Error to Circuit Court of City of Alexandria.

Ejectment by Anna T. Marbury and another against Bessie W. Jones. Judgment for defendant, and plaintiffs bring error. Affirmed.

The following is a plat of the property in controversy:

Francis L. Smith and Lewis H. Machen, for plaintiffs in error.

J. K. M. Norton, for defendants in error.

WHITTLE, J. This writ of error is to a Judgment for the defendant in error, Bessie W. Jones, who was the defendant In an action of ejectment brought by the plaintiffs in error, Anna T. Marbury and Eliza H. Mar-bury, to recover an estate for their joint lives and for the life of the survivor in a strip of land fronting 4 feet 11 inches on the north Bide of Prince street, in the city of Alexandria, and extending back between parallel lines perpendicular to the front line 94 feet

The square embracing the land in controversy and the respective holdings of the plaintiffs and defendant is bounded on three sides as follows: By Prince street on the south, by Royal street on the east, and by Pitt street on the west—and comprised (in the original plan of the city) two lots, each containing one-half of an acre. Lot No. 61 composed the eastern, and lot No. 111 the western, half of the square. The former lot "binds" 176 feet 7 inches on Royal street, on the east, with a frontage of 123 feet 5 inches on Prince street, on the south. Lot No. 111 is bounded by lot No. 61 on the east, and has an equal frontage, 123 feet 5 inches, on Prince street, the original location of the east line of Pitt street forming its western boundary, and was so recognized and described in conveyances of subdivisions of lot No. 111 made prior to the year 1800. Before that date a brick dwelling, known as the John Dundas house, stood on the northwest corner of lot No. 111, the western gable of which overlapped the eastern line of Pitt street, as then located, 8 feet 3 inches. Presumably for the purpose of leaving the John Dundas house undisturbed, the council of Alexandria, on February 5, 1800, passed an ordinance establishing a new location for Pitt street, the east side of which was on a line with the west gable of the Dundas house.

While this change in the location of Pitt street obviously did not affect the paper titles of property holders in that square, it practically resulted in adding 8 feet 3 inches to the lots adjoining Pitt street on the west.

For it is unquestionably the general rule, that the grantee of a city lot bounded by a street, subject to the right of way, owns to the center of the street (Schwalm v. Beards-ley, 106 Va. 407, 56 S. E. 135; Durbin v. Roanoke Building Co., 107 Va. 753, 60 S. E. 86); and, consequently, where the location of the street in front of such owner's lot is changed, for a distance not exceeding one-half the width of the street, the abandoned portion necessarily inures to his benefit.

The defendant, Bessie W. Jones, derived her title mediately through Joseph Wilson, who, In the year 1786, conveyed to Josiah Watson the southwestern portion of lot 111 (lot E) on map No. 3 (which is tiled as a part of this opinion) as follows: "A part of the lot described in the plan of the said town by number (111), the same being bounded as follows, viz.: Beginning at the corner of the said lot (111) binding upon Prince street and Pitt street, and running thence by Pitt street 94 feet; thence easterly, with a line parallelto Prince street, 49 feet; thence, southerly, with a line parallel to Pitt street, 94 feet, to Prince street; thence, with Prince street, to the beginning."

It will be observed that this deed antedated the change of location of Pitt street; and the description of lot E then given has been substantially followed from that time, through intermediate conveyances, down to and including the deed of July 2, 1882, from Caroline M. Mason to T. Marshall Jones, trustee of his wife, Bessie W. Jones, the defendant.

The plaintiffs' paper title embraces lots F, G, H, I, and a part of A, as shown on map 3. This property was formerly owned by the Bank of Potomac, and passed by successive conveyances to the Farmers' Bank of Virginia (the Alexandria Branch), and the First National Bank of Alexandria, Va. The buildings on this property were erected and used for many years for banking purposes, and the predecessors in title of the plaintiffs, 70 years or more before the institution of this suit, inclosed their property with massive brick walls, which are still intact. These walls, which separate lots F and I from lot E, are designated on map 3 by crossmarks.

It plainly appears from the evidence of the plaintiffs that, beginning at the southwest corner of lot 111, a line 49 feet east on Prince street will extend to the Marbury wall on the east, and that a line extended 94 feet north from the same point will reach the Marbury wall on the north. It is clear, therefore, that lot E, which is within the paper title of the defendant, includes the land in controversy. It is equally true that, unless the plaintiffs' line is to be extended westwardly upon the theory that their holdings have been enlarged by reason of the relocation of Pitt street (a pretension plainly without merit), their paper title does not embrace the land in dispute.

But the plaintiffs also insist that they have acquired the land by adverse possession under color of title. Upon that theory of the case they introduced evidence that the strip of land was an alleyway entered from Prince street through an archway, supported by brick pilasters, connected with the Marbury wall on the east and the wall of an old building on the west; that it was closed by a gate, secured by a lock, the key to which was in the possession of the bank people and subsequently of the plaintiffs; that the strip of ground was paved with bricks, and for many years had been used by the bank officers, and other occupants of the bank property, as a means of access to a toilet on their premises.

Let it be conceded that by this user the plaintiffs' predecessors in title acquired the strip of land by adverse possession; nevertheless, the testimony of the defendant (from...