Mcclung v. Folks

• Decision Date: 20 November 1919
• Citation: 101 S.E. 345
• Parties: McCLUNG. v. FOLKS.
• Court: Virginia Supreme Court

101 S.E. 345

McCLUNG.

v.FOLKS.

Supreme Court of Appeals of Virginia.

Nov. 20, 1919.

Error to Circuit Court, Highland County.

Suit by Lewis McClung against C. C. Folks to enjoin the enforcement of a judgment. From a decree dismissing the bill after sustaining demurrer thereto, the plaintiff brings error. Affirmed.

Rudolph Bumgardner, of Staunton, and John M. Colaw, of Monterey, for plaintiff in error.

Timberlake & Nelson and Curry & Curry, all of Staunton, and Andrew L. Jones, of Monterey, for defendant in error.

KELLY, J. This is a sequel to the caveat case of McClung v. Folkes, decided by this court in November, 1917, reported in 122 Va. 48, 94 S. E. 156. The nature of the controversy and its history up to the date of that decision are tersely stated in the opinion delivered by Judge Burks, and we need not here repeat that statement in full; but the following extract therefrom will afford a helpful introduction to the present phase of the litigation. After referring to the mass of conflicting evidence in the case, Judge Burks said:

"While there was this great volume of evidence relating to the issue submitted to the jury, the parties finally narrowed the issue between them to a single point, and each of them staked the fate of the case on whether the corner of one of the tracts was at a point which we may call A, or at a point which we may call B. At the request of the plaintiff, and without objection from the defendant, the court instructed the jury that, if they believed the corner was at A, they should find for the plaintiff, and at the request of the defendant, without objection from the plaintiff, they were instructed that if they believed the corner was at B, they should find for the defendant. Other instructions were given at the instance of each of the parties without objection from the other. Under these circumstances, the jury found for the defendant, and we cannot disturb their verdict."

Shortly after the decision in this court was announced, McClung brought a suit in equity to enjoin the enforcement of the judgment against him in the caveat proceedings, and to obtain a new trial on the grounds of fraud and after-discovered evidence. The bill was filed at the first February rules, 1918, and at the next succeeding term of the court the defendant, Folks, appeared and demurred to the bill. In the meantime the plaintiff had taken and filed certain depositions. The circuit court, having heard the cause on the hill and exhibits and the demurrer thereto, and "the examination of witnesses, " sustained the demurrer and dismissed the bill. From that action this appeal was allowed.

The alleged newly discovered evidence, which related solely to the location of the pivotal corner, consisted of a certain survey made for one Thomas Dixon in the year 1793, and recorded in "Bath County Journal No. 1, p. 22." The materiality of this survey as evidence for the plaintiff is manifest. At the second trial of the law cause, in July, 1914, and again at the third trial in July, 1915, the defendant, Folks, sought to fix the corner in question at a point known in the record as Terry's gate, referred to in the former opinion in this case as point B. The evidence at both of these trials was such as that a finding by the jury either for or against this contention on the part of the defendant would not have been interfered with by the court.

The plaintiff's paper title, which was superior to the defendant's, ran back to a certain Bradshaw survey, and the location of the disputed corner determined the location of that survey and of the plaintiff's land. If the corner was at Terry's gate, the defendant prevailed; if it was not at Terry's gate, his theory failed and the plaintiff would probably have recovered a verdict. To maintain his contention, the defendant undertook to show that a certain marked white oak tree or stump at Terry's gate indicated the corner in question. There was no positive evidence to identify this stump as being the corner of the Bradshaw survey. Persuasive but not conclusive evidence was found in the fact that the Bradshaw survey called for white oak timber at that corner; that this tree was marked aa a corner; that a block there form was exhibited to the jury and the annulations appeared to carry the date of the marks (after accounting for the period subsequent to 1899, when it was said the tree was killed by lightning) back to the date of the Bradshaw survey, which was in 1791; and that according to the county surveyor, Beveridge, a principal witness for defendant, there was no other known survey of that period covering lands in that section of Highland county which might account for the marks on the white oak stump at that point.

There was material and strongly persuasive testimony in behalf of the plaintiff that the white oak at Terry's gate was not a corner of the Bradshaw survey, but there was no satisfactory explanation of the marks on the tree in the absence of evidence of any other survey of that period.

The plaintiff, always insisting that the true corner was not at Terry's gate, but at a point which would so locate the Bradshaw survey, under which he claimed, as to cover the land in controversy, apparently relied upon the theory that the marks on the white oak stump were probably marks of a "Tomahawk survey" or of some surveyor's work which had never been made the basis of a grant from the commonwealth. At any rate, the importance of showing that the marks were not made in the course of the Bradshaw survey was manifest and was fully understood.

The bill alleges that the Dixon survey was not only material but conclusive evidence in the plaintiff's behalf, and descends into particulars which present a most convincing argument in support of this allegation. The defendant, relying on the record of the former case, which was expressly made a part of the bill, earnestly contends that the new evidence was merely cumulative, and, further, that it could not produce a different result on another trial. We have no difficulty in holding that the evidence is not merely cumulative. Barsa v. Kator, 121 Va. 290, 298, 93 S. E. 613:' Johnson v. Commonwealth, 126 Va. —, 101 S. E. 341, decided at this term. Whether we would be warranted in saying that, conceding its very manifest materiality it "ought to produce" a different result, may be a debatable question, but it is one which, for reasons now to be stated, we need not decide.

The grounds upon which the demurrer was sustained are not disclosed by the record, but in the petition upon which this appeal was granted it is said that the judge of the circuit court delivered an oral opinion in which he took this position.

"That the date of the Bradshaw survey was known, and the annulations in the snag at Terry's gate showed that these marks were of a survey approximately the same date; that the very crux of plaintiff's contention was that these were the marks o£ some other survey; that the court must take judicial cognizance of the historical fact that Bath county was cut off of Augusta; that in fact the 'Dixon' survey was engrossed in the Surveyor's Book of Bath County; and, under these circumstances, the court must say, as a matter of law, that plaintiff's counsel ought to have discovered it, and failure to do so was such an omission as to debar plaintiff from any relief on the ground of after-discovered evidence."

We concur in this view of the case. It it true that the plaintiff had made a very diligent search of the records for all title papers of every description affecting the title of either the plaintiff or defendant, and had been very thorough in this investigation, carrying it back to the commonwealth. This investigation resulted in the discovery and production of a large number of old surveys. If the Dixon survey had been a title paper constituting a link in the chain of either the plaintiffs or defendant's title, then there would have been no obligation on the part of the plaintiff to make any unusual search, and an examination of the records in the clerk's office by means of reference to the indexes would have been a sufficient examination. This is the usual method of examining titles by careful and capable lawyers, and thus meets the test of reasonable care and diligence. But a stray survey like the Dixon survey could never have beeu found by the ordinary methods of search, and the very theory and contention of the plaintiff was such as to call his attention sharply to this fact. A diligent search of all the title papers invoved in the chain of either plaintiff or defendant had failed to disclose any other than the Bradshaw survey which could plausibly account for the corner at Terry's gate. The annulations on the tree at that point showed with reasonable certainty that this corner was marked at about the date of the Bradshaw survey, which was in 1791. Bath county was carved out of Augusta county by an act of the Legislature of December, 1790, effective in May, 1791. If there was a recorded survey, other than the Bradshaw survey, which could have been represented by themarks at Terry's gate, and which was never carried into grant, it would in all probability have been recorded among the records of Augusta county just before, or among the records of Bath county just after, the formation of the latter county. The usual method of examining title, as we have pointed out, would never have disclosed any "hidden" survey, as this one is called in the bill. The only way to find such a survey would be to turn the pages of the books in which the same would probably have been recorded. This not only would appear to have been a comparatively easy and brief task as an independent proposition, but it now actually appears as a matter of fact that the record which was found of the Dixon survey was on page 22 of Journal No. 1 in Bath county.

It is argued on behalf of the plaintiff that all this looks plain enough now, but that until the survey was actually discovered...