Marshall v. Jameson

• Court: Virginia Supreme Court
• Writing for the Court: PRENTIS
• Citation: Marshall v. Jameson, 145 Va. 605, 134 S.E. 573 (1926)
• Decision Date: 23 September 1926
• Parties: MARSHALL. v. JAMESON.

134 S.E. 573

MARSHALL.

v.JAMESON.

Supreme Court of Appeals of Virginia.

Sept 23, 1926.

Error to Circuit Court, Pulaski County.

Action of ejectment by L. C. Marshall against E. V. Jameson. Judgment for defendant, and plaintiff brings error. Reversed and rendered.

O. C. Brewer and R. L. Lindsay, both of Pulaski, for plaintiff in error.

H. C. Gilmer and John S. Draper, both of Pulaski, for defendant in error.

PRENTIS, P. This is an action of ejectment brought by Marshall, the plaintiff, against E. V. Jameson, in which there has been a verdict and judgment for the defendant

The plaintiff showed that one H. A. Jameson died in 1892 seized and possessed of a tract of land containing nearly 300 acres; that in a chancery suit brought for the purpose of settling his estate, 87.14 acres thereof, of which the boundaries were clearly defined, were assigned to his widow, Sarah E. Jameson, as dower, while the residue, containing 204.935 acres, together with a reversion in the 87.14 acres so assigned as dower, were sold under decrees in that suit. E. V. Jameson, a son of H. A. Jameson, and his mother, the widow, became the purchasers of the larger tract together with the reversion in the dower. The property was thereupon conveyed March 18, 1897, by a special commissioner, and on the same date E. V. Jameson, the defendant here, conveyed the larger tract to his half sister, Annie J. Simmerman, with general warranty describing it and the dower tract by metes and bounds in accordance with the commissioner's report, retaining his reversion in the dower tract upon which he then resided with his mother. He continued to manage the dower tract for her until her death. On January 2, 1919, Mrs. Simmerman, by deed with general warranty, conveyed the property (with certain exceptions which are immaterial here) to Kersey & Hall, in which the dower tract is again described by the same metes and bounds, and the plaintiff, L. C. Marshall, has since acquired the residue of the 204.935-acre tract by mesne conveyances. The widow, Sarah E. Jameson, held possession of the dower tract until her death, May 19, 1917, and thereupon the reversion therein passed to E. V. Jameson, the defendant.

In the commissioner's report which assigned the dower as severed from the residue of the tract, the area of the entire tract, with its metes and bounds, courses and distances, and of the dower also, are carefully stated. The courses and distances and the line here disputed are repeated in the deed of E. V. Jameson to his sister, Mrs. Simmerman, and accord with the description contained in the commissioner's report. By the record, then, the title of the plaintiff to the land in controversy is perfectly clear. The land in dispute here is a narrow strip containing 7.25 acres and the controversy arises because the defendant, Jameson, alleges that a certain old fence and not the line shown by the conveyances was made the true line between the dower and the residue of the tract, because agreed upon between his mother, himself, and his sister, Mrs. Simmerman, after his conveyance to Mrs. Simmerman, and he claims title to the land in controversy because of this understanding and claim of continuous possession.

It is not often that we find in actions of ejectment a title so clearly established by the record as is the plaintiff's title here. The particular line in controversy is repeatedly stated, originally in the report of the commissioners and thereafter in the several conveyances in this language, "thence leaving the creek N. 9° E. 1459.4 feet to a stake, " as constituting the eastern line of the dower tract and one of the boundaries of the larger tract.

To show a superior title and maintain the Issue on his part, the defendant introduced his sister, Mrs. Simmerman, who testified that at the time of her purchase there was an old fence, and that it was the line between herself and her brother, and that as long as she owned the land they both considered the old fence to be the line, that she never made claim to the land east of the old fence, and that E. V. Jameson had possession of the land east of the fence from the time she pur chased it until she sold it in January, 1919; that her vendees understood that they were buying to the old fence, which they denied. The defendant himself testified to the same effect—that the old fence was on the line and had been recognized as such by all the parties. It is perfectly apparent, however, that, although nearly parallel with the line, this old fence never was on the true line.

Under this state of facts, the trial court instructed the jury as to the chain of title of the plaintiff, and then, among other instructions, gave this, marked No. 2:

"The court further instructs the jury that if they shall believe from the evidence that E. V. Jameson sold said land to Mrs. Annie J. Simmerman by metes and bounds and that the said lands passed by a succession of conveyances to the plaintiff, that the plaintiff has the legal right to rely on the metes and bounds in said deed, and that E. V. Jameson cannot deny any of said metes and bounds contained in said deed."

It is seen from this instruction that the court correctly told the jury that E. V. Jameson could not claim against his own deed, and nevertheless at the same time gave for the defendant instructions A and B, which read thus:

"A. The court instructs the jury that while the plaintiff cannot deny the metes and bounds as set forth in the commissioners' report or deed, yet if they believe from the evidence that the fence in question was the line and so accepted by E. V. Jameson and Mrs. Simmerman, they should find for the defendant.

"B. The court instructs the jury that if they believe from the evidence that the fence in question was the line to the dower land that they should find for the defendant regardless of the description of the dower land in the commissioners' report."

These two instructions cannot be reconciled with that given for the plaintiff. The instruction given for the plaintiff, to the effect that Jameson was estopped from denying the metes and bounds so clearly specified in his own deed, is correct and fully supported by authority. When the court told the jury, in instructions A and B, given for the defendant, that notwithstanding the commissioners' report and his deed based thereon they might find that the old fence was the true dividing line, it permitted the defendant to contradict the very deed which the jury had been told that he could not contradict.

The instructions given for the plaintiff are well supported by these and many other cases:

In Reynolds v. Cook, 83 Va. 821, 3 S. E. 712, 5...