Matthews v. W. T. Freeman Co., Inc.

Decision Date06 September 1950
Docket NumberNo. 3630,3630
CourtVirginia Supreme Court

Carlton E. Holladay, for the appellants.

Freeman & Cole, for the appellee.


SPRATLEY, J., delivered the opinion of the court.

On March 3, 1947, W. T. Freeman Company, Inc., sometimes hereinafter referred to as the complainant or corporation, instituted this suit against Lawrence L. Matthews and Frank M. Remorenko to establish its title to two lots of land in the town of Stony Creek, Sussex county, Virginia, and to remove a cloud cast upon the title by having cancelled a deed to the two lots, dated September 10, 1946, from B. O. Clements, unmarried, B. S. Clements and Blanche A. Clements, his wife, to Remorenko and Matthews. The bill alleged that the complainant had acquired title by adverse possession to the property by actual, exclusive, open, continuous, uninterrupted, hostile and notorious possession thereof for more than twenty years, accompanied by a bona fide claim of ownership; that it had erected on one of the lots a valuable warehouse, and had caused a railroad spur track to be placed thereon for its use in connection with its merchandising business; that prior to 1925, it had used a warehouse and spur track located on the second lot; that in 1925 the latter warehouse was destroyed by fire, and since that time it had used the said lots and spur tracks continuously for unloading coal and merchandise; and that subsequent to September 10, 1946, the defendants asserted title to the above lots and demanded possession thereof.

Remorenko and Matthews answered, denying generally the allegations of the bill of complaint. They averred that they relied upon the record title conveyed to them by the deed of September 10, 1946. They further set forth that Remorenko had conveyed his interest in the lots to Martin Max Tereschanko. Remorenko was thereupon dismissed as a party defendant, and Tereschanko was named in his stead.

Evidence was taken in the form of depositions and exhibits, and on consideration thereof the trial court entered a decree on April 25, 1949, holding that the complainant had not established a title by adverse possession to Lot No. 4, as shown on a plat filed in the proceedings as exhibit 'A'; but that it had established a title by adverse possession to Lot No. 1 on said plat, during the lifetime of Dr. Bernard S. Clements but not thereafter.

On May 12, 1949, the court ordered that each party should bear its own costs.

The defendants assign error to so much of the decrees as held that complainant had established any title to Lot No. 1, and assessed any costs against them. They contend that the possession and use of Lot No. 1 by the complainant was permissive. In addition, they argue that the failure of the complainant to list the lost for taxation and pay taxes on them barred its claim of adverse possession.

The corporation, on the other hand, assigns cross-error to the action of the trial court in refusing to hold that it had established a fee simple title by adverse possession to both lots, and in ordering it to pay a portion of the costs of the suit. It contends that the only possible permissive use of the land involved applies only to Lot No. 4.

A review of the history of the disputed property is required in order properly to get the facts in mind. Exhibit 'A' is a plat made by a civil engineer in September, 1947, of a half-acre of land, almost a right-angled parallelogram in shape, subdivided into four lots. The half-acre is bounded on the north by Flat-Foot Road, on the east by the right of way of the main line of the Atlantic Coast Line Railroad Company, and on the south by lands of that railroad. Lot No. 1 lies in the northeast corner of the one-half acre tract. It is bounded on the north by Flat-Foot Road, upon which it fronts 70 feet; on the east by the right of way of the main line of the railroad company, upon which it fronts 36 feet; on the south by Lot No. 2; and on the west by Lot No. 3, which separates it and Lot No. 2, a distance of 40 feet from Lot No. 4. Lot No. 3 fronts on Flat-Foot Road 40 feet and runs back therefrom between parallel lines about 66 feet. Lot No. 4 is in the northwest corner of the tract, and fronts on Flat-Foot Road 300 feet. A railroad spur track runs diagonally across the eastern portion of Lot No. 4, and another spur track runs across the western portion of Lots Nos. 1 and 2 and the eastern portion of Lot No. 3.

The records in the Clerk's Office of the County of Sussex show that B. F. Winfield conveyed the one-half acre of land to William S. Overton in 1874. In 1883 Overton conveyed to Eliza A. Dunnavant a part of the half-acre on the plat. This conveyance is shown as Lot No. 2. In 1887 Overton conveyed to Emma J. Magee another part identified on the plat as Lot No. 3.

In 1895, Alice Peebles Cobb, who later married Dr. Bernard S. Clements, was allotted what are now shown as Lots 1 and 4 on the plat, by a decree of partition in a chancery suit between the heirs of William S. Overton.

Mrs. Alice Peebles Cobb Clements died in West Virginia, in May, 1909, leaving surviving her husband, Dr. Bernard S. Clements, and a son, Bernard O. Clements, born three days before her death. By her last will and testament dated December 31, 1908, prior to the birth of her son, she devised the lots in dispute to her husband. The will was probated in July, 1909, in Mercer county, West Virginia, and an authenticated copy admitted to probate in the Clerk's Office of the County of Sussex, Virginia, on August 27, 1909.

At the time of the death of Mrs. Clements in 1909, the common law right of curtesy was in effect in Virginia. Consequently, the real estate in question, notwithstanding the provisions of her will, descended to her son, Bernard O. Clements, subject to the common law right of curtesy of her husband, Dr. Bernard S. Clements, therein. *

On September 10, 1946, Bernard O. Clements, Dr. Bernard S. Clements, and Blanche A. Clements, the latter's wife, conveyed the two lots in dispute to Frank M. Remorenko and Lawrence L. Matthews, by deed duly recorded in Sussex county on September 18, 1946. Remorenko conveyed his interest therein to Martin Max Tereschanko by deed dated February 26, 1947, duly recorded.

On September 19, 1946, Matthews and Remorenko notified W. T. Freeman Company, Inc., in writing, that they had purchased the disputed land with all improvements, and would like to have a conference concerning the removal or disposition of the warehouse on Lot No. 1. Again, on October 3, 1946, they gave the corporation a ten days notice to remove the warehouse from the property. Thereafter, in March, 1947, W. T. Freeman Company, Inc., instituted his proceeding.

Philip Freeman, secretary and treasurer of the corporation, a firm engaged in the general merchandise business, testified that for more than twenty years his corporation had been in the actual, exclusive, open, continuous, uninterrupted and notorious possession of both lots, and that its possession had been accompanied by a bona fide claim of fee simple ownership, hostile and opposed to the claims of all other persons. Four witnesses said they had observed the use and possession of the disputed premises by the corporation for its business purposes for many years, and throught it was the owner of the land.

Philip Freeman said that on January 3, 1917, his father, W. T. Freeman, the president of the corporation, came to the desk where he was employed as cashier of the corporation, and instructed him to issue a check to B. M. Hardy in the sum of $340 for the purchase of the property involved from Dr. Clements; that he wrote the check, gave it to Hardy, who told him that the deed would be forthcoming in a day or two; that Hardy said he needed the money as he had already paid Dr. Clements; and that not very long afterwards he, Philip Freeman, went into the Navy and did not know what happened about the deed. He thought that Hardy was the agent of Dr. Clements in the handling of the latter's real estate at Stony Creek. He did not know that there was such a person as B. O. Clements, the son of Dr. Clements, or that he had any interest in the land.

Freeman produced a ledger sheet of his corporation entitled 'Real Estate,' on which were numerous entries, in different colors of ink and in pencil, relating to land, personal property, and wages. One entry was as follows: 'January 3, 1917, B. M. Hardy, $340,' in green ink. Immediately above the name of Hardy is the word 'Warehouse,' also in green ink. Freeman said that the word 'Warehouse' was in the handwriting of his father, and the remainder of the entry in his own handwriting. There was another entry listing a charge for a warehouse under the general date of 1912. The lower portion of the ledger sheet contains a running account of a customer, debtor or creditor of the corporation.

No check or other voucher relating to the purchase of the disputed land could be produced and no deed or contract for its sale could be found. Freeman admitted that the disputed lots had never been listed or assessed for taxation in the name of his corporation. The corporation had been assessed for taxation on two buildings owned by it, but not on the land occupied by them, and Freeman thought that one of the buildings was the warehouse on Lot No. 1 and the other a smaller warehouse located elsewhere.

It appears that subsequent to 1917 the corporation erected a warehouse on Lot No. 4. After this building was destroyed by fire in 1925, the corporation erected the present warehouse on Lot No. 1. Lot No. 1 had been used previously for the storage of wire fence, staves, and other heavy articles in the open. A spur track on the western portion of Lot No. 1 and the eastern portion of Lots 2 and 3 was constructed by the corporation after 1917. Another spur track running across L...

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