Maxwell v. Cunningham

• Citation: 40 S.E. 499,50 W.Va. 298
• Parties: MAXWELL et al v. CUNNINGHAM et al.
• Decision Date: 30 November 1901
• Court: Supreme Court of West Virginia

40 S.E. 499
50 W.Va. 298

MAXWELL et al
v.
CUNNINGHAM et al.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1901.

EJECTMENT— INSTRUCTIONS — ADVERSE POSSESSION—EXTENT — COLOR OF TITLE — DISCLAIMER—TAXATION—CONTIGUOUS TRACTS-EVIDENCE.

1. When the jury in an action of ejectment has been instructed distinctly and fully upon the doctrine that the plaintiff must recover on the strength of his own title and cannot be aided by the weakness of the title of his adversary, it is unnecessary to again give such instruction in connection with an instruction asked by plaintiff expounding the law as to what is necessary to be shown by a defendant who relies on adverse possession of land under color or claim of title to defeat the legal title of the plaintiff.

2. One claiming title as against the legal owner is bound to show his color or claim of title, and that it covers the land or part of the land in controversy; that he entered under said color or claim of title upon the said land or some part of it; that his entry was hostile and adverse to the party having the legal title, and was actual, visible, exclusive, and unbroken under said color or claim of title for 10 years before the commencement of the action against him.

[40 S.E. 500]

3. One so holding adversely under claim of title for 10 years before the commencement of the action will be limited in his adverse holding to his actual inclosures, if under color of title the adverse holding will extend to the boundaries contained in the deed or writing constituting his color of title.

4. Or, when one has entered and held under another, before his possession can become adverse there must be an express disclaimer, or its equivalent, and the assertion of an adverse title, with notice to the owner.

5. An owner of several tracts of land lying contiguous to each other should have them entered and charged with taxes on the land book as a whole, and not in different parcels.

6. If the defendant in an action of ejectment relies upon setting up an outstanding title for the purpose of defeating the action, whether in the state by forfeiture or otherwise, he must affirmatively and clearly establish such title as an actual and subsisting and better title than the plaintiff's title, —such title as would enable the third party himself to maintain an action for the possession of the lands in controversy against both the plaintiff and defendant.

(Syllabus by the Court.)

Error to circuit court, Ritchie county; G. W. Farr, Judge.

Action by Leeman Maxwell and others against W. J. Cunningham and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Cyrus Hall, S. Robinson, P. W. Morris, and Homer Adams, for plaintiffs in error.

Edwin Maxwell and Millard Snider, for defendants in error.

McWHORTER, J. This is an action of ejectment for 400 acres of land in Ritchie county, instituted by Leeman Maxwell, Porter Maxwell, Lewis Maxwell, and W. Brent Maxwell in the circuit court of Ritchie county against W. J. Cunningham, W. A. Cunningham, W. R. Cunningham, B. F. Cunningham, and Peter Cunningham. At the May rules, 1897, the defendants appeared, demurred to the declaration, and pleaded not guilty. The plaintiffs joined in the demurrer and joined issue on the plea. On the 25th of June, 1897, an order of survey was made on motion of the plaintiffs, and on the 17th of February, 1898, the report of the surveyor, Clayton, made and filed in the cause, being incomplete, on motion of plaintiffs said report and plat were set aside, and the case recommitted to Surveyor Clayton to fully execute the order of survey theretofore made, and by agreement of parties the case was continued. On the 25th day of October, 1899, the plaintiffs appeared by their attorneys, and the defendants by their attorney, and entered the plea of not guilty, and put themselves upon the country, and the plaintiffs likewise. A jury was then duly impaneled and sworn. On the 26th of October the parties and the jury again appeared, and, after hearing further evidence, P. W. Morris, attorney for defendants, "announced that on yesterday he had inadvertently entered the plea of not guilty on behalf of W. J. Cunningham and W. A. Cunningham, and desired to withdraw the same, which plea of not guilty, entered on yesterday on behalf of said defendants W. J. Cunningham and W. A. Cunningham, is withdrawn, and after hearing further evidence the jury is adjourned over until to-morrow morning at nine o'clock." The next day the parties again appeared by their attorneys, and the defendants W. J. Cunningham and W. A. Cunningham by counsel moved the court to continue the cause as to them, which motion the court overruled, and said defendants, by C. A. Harrison, their counsel, pleaded not guilty, and the trial proceeded from day to day until the 1st day of November, 1899, when the jury returned a verdict for the plaintiffs for a certain part of the land described by them and for the defendant B. F. Cunningham a certain other part. The defendants moved the court to set aside the verdict, because contrary to the law and the evidence, and grant them a new trial, which motion the court overruled, and entered judgment upon the verdict. The defendants tendered several bills of exceptions to rulings of the court, numbered, respectively, 1 to 11, inclusive, which were filed and made part of the record. The defendant B. F. Cunningham obtained a writ of error and supersedeas to said judgment, assigning some 20 causes of error. The first assignment is that the court erred in overruling defendants' motion to set aside the verdict and grant a new trial; and, second, in entering up judgment on the verdict and refusing to grant a new trial; third, in giving to the jury plaintiffs' instruction No. 2; fourth and fifth, in giving plaintiffs' instruction No. 5; and sixth, seventh, and eighth, in giving plaintiffs' instructions 6, 8, and 1, respectively; the ninth, tenth, and eleventh assignments, that the court erred in refusing to give to the jury defendants' instructions 5, 7, and 8, respectively; the twelfth, that the court erred in permitting the trial of the case to go on one day without a plea of not guilty as to part of the defendants; thirteenth, in holding that the plaintiffs had sufficiently identified their land by their title papers, "when, as a matter of fact, their title papers did locate their land in another and different locality than that of the land in controversy"; fourteenth, that the court erred in not treating the injunction proceedings in regard to this land as an injunction perpetuated; fifteenth, in holding that, although the defendants had had the ownership and possession of said land, at least under color of title, from 1842 to that time, and although they had paid the taxes thereon, yet the plaintiffs could recover under the evidence in this case; sixteenth, in overruling demurrer to the declaration; seventeenth, in holding that payment of taxes on one tract of land is payment on another if it be coterminous; eighteenth, in holding that the onus or burden was on the defendants to show that the tract of 400 acres in controversy was not in

[40 S.E. 501]

some tract of land taxed to the plaintiffs in said assessment district in the same county, when the plaintiffs should have been compelled to show that said particular tract was on the land books of said county; nineteenth, in holding that said land was not forfeited for the nonentry and nonpayment of taxes thereon; twentieth, in holding that the plaintiffs could recover a part, and not all the land sued for. The instructions 2, 5, 6, 8, and 1 of plaintiffs, complained of, are as follows: "No. 2. The jury are further instructed that, if the adverse possession should be held as in the above instruction for 10 years before the commencement of the action, under claim of title, the person claiming adversely will be limited in his adverse holding to his actual inclosures; if under color of title, then the adverse holding will extend to the boundaries contained in the deed or writing that constitutes his color of title." "No. 5. The jury are further instructed that If a person has his land charged upon the land books in a large tract that covers all his smaller tracts, or any of his smaller tracts, it is not necessary for him to have it charged to him in the small tracts, and no forfeiture can accrue to those small tracts by reason of their not being so charged as small tracts if they are included in the large tracts. In other words, coterminous tracts of land belonging to the same person for the assessment and payment of taxes are the same as one tract. No. 0. The jury are further instructed that forfeitures are deemed odious in law, and will never be presumed, but must be strictly proved by the party relying on the same. And, before the defendants can have the benefit of the forfeiture claimed by them, or any of them, for a failure of the plaintiffs or those under whom they claim to have had the land in controversy placed upon the land books in Ritchie county and pay the taxes thereon for five successive years after the year 1809, the defendants must clearly prove that the said land or any part thereof in controversy has not been upon the land books for those years, neither in large tracts nor small ones." "No. 8. The jury are further instructed that the defendants, to make out a title by adverse possession, must show that such possession was adverse in its inception; and where the entry is under the title of the legal owner, the holder cannot controvert that title without an express disclaimer, or its equivalent, and the assertion of an adverse title with notice to the owner." "No. 1. The jury are instructed that the party who relies on adverse possession of land, under color or claim of title, to defeat the legal owner of the land, must show: (1) His color or claim of title, and that it covers the land, or a part of the land, in controversy; (2) that he entered under said claim or color of...