Mitchell et al v. Carder.

• Decision Date: 17 March 1883
• Citation: 21 W.Va. 277
• Parties: Mitchell et al v. Carder.
• Court: West Virginia Supreme Court

21 W.Va. 277

Mitchell et al

v.Carder.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1883

Decided March 17, 1883.

1. A party, who is in possession of lands under claim of title, makes it his as against the world except as to the true owner, and it remains his as against all persons entering without his consent, unless he abandons the land; and he may recover the possession of the land by a writ of unlawful entry and detainer, even of the true owner, who has entered upon the same without the occupant's consent and without his abandonment of such land, (p. 283.)

2. Iffsuch person in possession of such land leaves it with the intention of returning and taking possession of it at a future time, he does not abandon such land, even though no one be upon the land for a considerable length of time. An abandonment takes place, only when one in possession leaves with an intention of not again resuming possession; for abandonment is a question of intention; and mere lapse of time does not constitute abandonment, though it is proper to be considered in ascertaining the intention of a party, who has left land, which he has been occupying. (p. 285.)

3. So too the promptness or delay of a former occupant in instituting suit or demanding possession of one, who has entered on the land, is proper evidence to be considered in ascertaining such intention of the first occupant; and indeed a wide range should be allowed, for it is generally only from all the surrounding facts. and circumstances, that the intention of an occupant of land can be ascertained, when he has left its possession. (p. 288.)

4. But if such an occupant of land having no valid title has in point of fact so abandoned the possession of land with no intent of resuming it, then any one may take possession and hold it against him, even though he promptly institute proceedings to recover such possession; but the burden of proving clearly such abandonment rests on the one who asserts it. (p. 290.)

Writ of error to a judgment of the circuit court of the county of Jackson, rendered on the 12th day of March, 1881, in an action of unlawful detainer in said court then pending, wherein A. B. Mitchell and J. W. Mitchell were plaintiffs, and Z. P. Carder was defendant, allowed upon the petition of said Carder.

Hon. Robert F. Fleming, judge ot the sixth judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

At the September term, 1864, of the circuit court of Jackson county, one James M. Reynolds obtained a judgment against the defendant, Z. P. Carder, for two hundred and twenty-five dollars and interest and cost, which was duly docketed and immediately thereafter a subpoena in chancery was issued in a suit brought in said circuit court to enforce this judgment out of the defendant's lands.

On October 1, 1865, this subpoena was returned by the sheriff; the return being, that the defendant was not found in his bailiwick. On January 19, 1866, the plaintiff in this chancery suit filed his affidavit, that the defendant, Z. P. Carder was a non-resident of the State of West Virginia; and at the March rules 1866, the plaintiff, Reynolds, filed his bill asking to charge the two tracts of land, the subject of controversy in this cause, with the payment of this judgment improperly described as having been rendered in 1866, but otherwise described as corresponding with said judgment, as the property of the defendant, Z. P. Carder.

On September 19, 1866, a decree was rendered in this cause, which recited, that order of publication had been duly executed against the defendant, Z. P? Carder, and that the bill was taken for confessed against him, and thereupon the court, Hon. George Loomis presiding, rendered a personal decree for two hundred and twenty-five dollars, the amount of said judgment and for eighteen dollars and one cent the costs of the suit at law and also for the costs of this chancery suit; and further decreed, that unless this was paid in thirty days W. W. Flesher, as commissioner, should sell said lands of the defendant, Z. P. Carder, or so much thereof as was necessary for cash in hand, after advertising the time and place of sale for twenty days, at the front door of the court house of Jackson county. No bond was required to be given by the special commissioner.

On February 4, 1867, W. W. Flesher, the special commissioner, sold said lands of the defendant, Z. P. Carder, for three hundred and fifteen dollars and eighty-seven cents which was just the amount decreed against Z. P. Carder. This report of the sale was confirmed by the court and a deed ordered to be made to the purchaser, Wm. T. Greer, and the decree further directed the commissioner to convey said land to said Wm. T. Greer, with covenant of general warranty on behalf of Z. P. Carder. On February 18, 1868, such a deed with such warranty was executed pursuant to said decree. On the 20th day of September, 1874, Z. P. Carder, filed a petition for a rehearing ot said cause alleging, that there were palpable errors in the decrees and proceedings above mentioned, and J. W. English was selected as the special judge to try the cause, and Z. P. Carder filed his answer in said cause. It denies, that any such judgment as was stated in the bill was ever rendered against them, but admits that a similar judgment was rendered in 1864, though there was no personal service on him in said common law suit; but in it he was proceeded against only as a non-resident by order of publication. He did not appear in this common law suit nor did any attachment issue against him, and the judgment was therefore a mere nullity and was afterwards, at the March term 1875 of said circuit court, set aside, reversed and annulled; and he claims that this pretended judgment was no lien on his lands.

On the 4th of September, 1879, a final decree was rendered in said cause, and the decree rendered in this cause directing a sale of the land of Z. P. Carder, as well as the decree confirming the sale and directing a deed to he made to W. T. Greer, the purchaser, were set aside, annulled and held for naught, and the plaintiffs bill was dismissed and the defendant was decreed his cost against the plaintiff. Z. P Carder owmed said lands by a conveyance of it to him in 1854, and he was in possession of it for several years prior to this sale by the special commissioner in 1867. After this deed to Greer had been made he conveyed this land to one Kent, who lived upon it for about ten years, and in the spring of 1880 he re-conveyed this land to Greer, who took possession of it and on the 10th day of April, 1880, he leased this land to the plaintiffs A. B. and J. W. Mitchell for one year from March 1, 1880. The rent was ten dollars and the lessees agreed to take possession of and hold the same for this term and to surrender the possession at the end of said term. Before, however, the conveyance was made by Kent to Greer, the defendant, Z. P. Carder, had, in 1879, instituted an action of ejectment against Kent for this land, which was still pending. When this lease was made in April, 1880, one of the plaintiffs, J. W. Mitchell, took possession of this land and sowed on it some oats and flax, and his brother A. B. Mitchell, the other plaintiff, also occupied the premises. He was unmarried, but had a bed in the house situated on this land and some housekeeping articles and ate there, and when he left the house temporarily he fastened it up leaving these articles there. In April or May of 1880, this house which had been so occupied by A. B. Mitchell was burned down. How it happened to be burned does not appear, but when it was burned it was not occupied, as A. B. Mitchell who had occupied it had moved to his home not on this land and bad taken with him his bed, which he had in this house. After the burning of the house, the plaintiffs had for a time some cattle upon the place and went to it frequently; but they were all taken out by about October first. A. B. Mitchell took out his cattle first, but the mare and colt of J. W. Mitchell, remained on the place till about October 1, 1880, and there were some hogs of the plaintiffs still remaining on the place when the defendant, Z. P. Carder, entered on and took possession of the place on November 2, 1880.

But from a time as far back as April 1, 1880, the outside fencing of the said land was down in two or three places and the inside fencing was open, so that stock could pass from one field to another and the stock of the country were in the fields running at large, and the land had all the appearance from and after August 1, 1880, of abandoned property. It was used as commons and was not apparently under the control or in the possession of any person. A. B. Mitchell had gone back to bis home elsewhere than on this land, but how far from it the record does not show though he does not appear alter August, 1880, to have exercised any control over this land, and whatever control was exercised over it after that time was exercised over it by J. W. Mitchell. In October, 1880, he went to live at a place some fifteen miles from this land, and before that during the summer and fall, he was travelling about with a machine for shaving staves, in which business he was engaged, having given up farming. He says he was at the kitchen or smoke-house on this land on Sunday morning just before the defendant, Z. P. Carder, took possesion of it. This kitchen or smoke-house was near the dwelling-house, which had been burned and was still standing. He says, that he nailed up the door of this smokehouse and left it nailed up, and this is the only act of control over this land, which he appears to have exercised for some months; he does not state why he nailed it up and there appears to have been no apparent reeson for his so doing, as this smoke-house had nothing in it.

When the defendant, Z. P Carder, took possession of this land on November 2, 1880, there was...