Miller v. Holt
| Decision Date | 18 November 1899 |
| Citation | 34 S.E. 956,47 W.Va. 7 |
| Parties | MILLER v. HOLT. |
| Court | West Virginia Supreme Court |
Submitted June 17, 1899
Syllabus by the Court.
1. Where the plaintiff in ejectment, in describing the land claimed by him in his declaration, sets forth the metes and bounds, and one of the calls is "thence N., 2 W., 490 poles, to a stake in a line of B. W.'s 750 acres," and said line, when ascertained, constitutes the division line between plaintiff's and defendant's land, the true location of which is the real controversy in the suit the jury, by its verdict, must find that true location, and a verdict and judgment thereon, which merely finds for the plaintiff the land as described in the declaration, does not determine the question raised by the pleadings.
2. Before the plaintiff can recover, he must identify the land claimed, so far as the exterior boundaries are concerned.
3. The call for the line of another tract of land, which is proved is more certain than, and shall be followed in preference of one for mere course and distance.
Error to circuit court, Ritchie county; T. P. Jacobs Judge.
Action by D. H. Miller against W. B. Holt. Judgment for plaintiff, and defendant brings error. Reversed.
B. F. Ayers and Brown, Jackson & Knight, for plaintiff in error.
W. N. Miller, for defendant in error.
This is an action of ejectment brought by D. H. Miller against W. B. Holt, in Ritchie county, for the recovery of three tracts of land, described in the declaration as tract No. 1, containing 430 acres; No. 2, 500 acres; No. 3, 500 acres; in all, 1,430 acres,--being part of a 2,000 acre tract patented to James Newport and others, trustees of Isaac Sidman, by patent dated April 18, 1786, then in Harrison county, beginning at a beech and pointers in an original corner of said 2,000 acres and No. 6; running thence N., 88 E., 400 poles, crossing the waters of Little Leading creek, to an ironwood and pointers in another original corner of said 2,000 acre tract; thence N., 2 W., 490 poles, to a stake in a line of Benjamin Webb's 750 acres; then, with his line and a line of Dennis Dye's 150 acres, N., 71 W., 380 poles, to a white oak, said Dye's corner; thence, with two of his lines, N. 155 poles, to a white oak; thence S., 88 W., 45 poles, to a stake in another line of said 2,000 acres; and thence, with said line, S., 2 E., 760 poles, to the beginning,--excepting from the above boundary 400 acre conveyed to R. E. Taylor and B. F. Prince by the clerk of the county court by deed bearing date August 25, 1881, recorded in Deed Book No. 22, pp. 131-133, of the land records of Ritchie county, containing 1,030 acres. The defendant demurred to the declaration at rules, but did not insist upon it in argument. The plea of not guilty was interposed, and issue joined thereon. The case was submitted to a jury. The defendant demurred to the plaintiff's evidence. The jury found a conditional verdict for the plaintiff, if the law be for the plaintiff; that he recover from the defendant the possession of the land in his declaration specified, and that he is entitled to the same in fee simple; and also found the excepted boundary of the 400-acre tract conveyed to Taylor and Prince by the clerk of the county court, as aforesaid, giving the bounds and description thereof by reference to the plat returned under the order of survey, but, if the law be for the defendant, then they found for him. There was a joinder in the demurrer, and subsequently the court found the law to be with the plaintiff upon the demurrer to the evidence, and entered judgment for the plaintiff on the conditional verdict, and from this judgment the defendant obtained this writ of error.
The first assignment of error relied on by the defendant relates to the action of the court in permitting the deed from Peter Van Winkle to William Henry Titus, of July 6, 1846, to be read in evidence over the objection of the defendant. This deed purports in the body of it to have been executed by Van Winkle, commissioner of delinquent and forfeited lands, and the signature should correspond with the rest of the deed, but is simply signed, "P. G. Van Winkle," without any addition or description. Now, it appears that the record of the chancery proceedings authorizing Van Winkle, as commissioner, to advertise and sell Isaac Sidman's survey No. 7, containing 1,430 acres, describing it as part of 2,000 acres patented to James Newport and others, attorneys in fact and trustees of Sidman, giving the metes and bounds of said 1,430 acres, was offered in connection with said deed of Van Winkle; that on the face of the deed he recites his proceedings in reference to the sale of said land under the decree to William Henry Titus, and concludes the deed as follows: ;" and two justices certify that he acknowledged it as commissioner of delinquent and forfeited lands for Ritchie county. In the circumstances, we can but regard this deed as executed as commissioner, and not his individual deed.
The plaintiff next offered in evidence a deed from said Titus to John D. Clute, dated October 22, 1846; a deed from said Clute to Jacob F. Merrett, dated February 18, 1865; and a deed from said Merrett to the New York & Hughes River Oil Company.
As to the deed from Clute to Merrett, it is claimed there should have been a seal attached, as required by sections 14 and 15 of chapter 51 of the Code of 1868. In the certificate of acknowledgment to this deed, John Adriance, who took the acknowledgment, recites that he is a commissioner appointed by the governor of West Virginia for the state of New York and concludes the certificate, "Given under my hand and seal of office," and signs it, "John Adriance, West Virginia, Commissioner," and the word "Seal" is written to the left; and in the certificate from Merrett to the New York & Hughes River Oil Company John Adriance took the acknowledgment, reciting the same, but certifies it under his hand and seal as notary public. The circuit court committed no error in overruling the objections to the admission of these deeds, as in the first we would presume the proper seal was affixed, and in the latter the certificate is good whether in taking it the officer acted as commissioner or notary public, and the same...
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