Mitchell v. Baratta
| Decision Date | 14 May 1867 |
| Parties | MITCHELL, & c., v. BARATTA & als. MITCHELL, & c., v. RIVIERA & als. |
| Court | Virginia Supreme Court |
1. If a tenant is sued in ejectment for the land so held by him his landlord is entitled under the act, Code, ch. 135, § 5 to be made a party defendant to defend the action.
2. Parties agree to dispense with a trial by jury and refer the whole matter of law and fact to the judgment of the court under the act, Code, ch. 162, § 9, p. 629; and all the evidence is stated on the record; though no exception is taken to the judgment of the court.
HELD:
1. It sufficiently appearing that the evidence was intended to be a part of the record, it will be so considered, though there was no exception.
2. In such a case the evidence and not the facts proved should be stated.
3. The opinion of the judge who decided the case, should not be reversed, unless it is plainly erroneous, especially if the evidence or a part of it be cral; and more especially if it be conflicting.
3. If the plaintiff in ejectment would have been entitled at the time the Code of 1849 went into effect and at the time of the institution of his suit, to recover in a writ of right, he is entitled to recover in the present action of ejectment, under the provisions of the Code, ch. 135, §§ 2 and 38 and ch. 149 § 19.
4. A case of comparison of titles, in ejectment.
These cases were actions of ejectment in the Circuit court of the city of Richmond, brought in 1854, by Richard D. Mitchell and Adolph D. Williams, one against Angelo Baratta, and the other against Nicholas Riviera, to recover two adjoining lots of ground fronting on the south side of Franklin street in the city of Richmond. The facts are the same in both cases, and they were tried together in the Circuit court, and heard together in this court. In June, 1855, the heirs of Henry Clarke applied to the court to be admitted as parties defendants in the actions; and in support of their motion exhibited a deed of lease from Henry Clarke to Nicholas Riviera for the ground embraced in both actions. This deed bore date the 14th day of January, 1852, and leased the ground to Riviera for eight years form the date. Baratta held under Riviera. The plaintiffs opposed the motion, on the ground that Henry Clarke only claimed title to the property as one of two trustees in a deed to secure the payment of certain debts therein mentioned; which deed bore date as far back as June 10th, 1819; and that the plaintiffs had made an agreement with Baratta and Riviera, that upon the plaintiffs establishing their right to the lots in controversy by a judgment or decree of any competent tribunal, then that Baratta and Riviera should occupy the same for five years. But the court admitted the parties as defendants.
At the may term 1856, there was a trial of the causes, when the jury found a verdict for the defendants, which was set aside by the court; and in November, 1857, there was another trial when the jury could not agree, and were discharged. On the 24th of January, 1861, the following judgment was rendered. Came the parties by their attorneys, and waived their right to have a jury for the trial of the causes, and agreed that the whole matter of law and fact may be heard and determined and judgment given by the court; and the matters arising upon the pleadings, the statement of evidence and the deeds, plat, books and writings therein mentioned, agreed by the counsel for the respective parties and by them submitted to the judgment of the court, being maturely weighed, it seems to the court here, that the defendants have a valid defense, sufficient in law to bar the plaintiffs from having or maintaining their present action against the defendants. Therefore it is considered by the court, & c.: judgment with costs.
There was no exception to the opinion and judgment of the court, but the case agreed sets out the whole testimony of both parties, including deeds, wills, plats, and various other papers, and the oral testimony of witnesses introduced by both parties; and it was agreed that Henning's Statutes and certain maps might be read and examined in the appellate court, without being copied into the record.
The plaintiffs, in support of the issues on their part, produced in evidence a patent to William Byrd, dated April 20th 1687, by which there was granted to him nine hundred and fifty-six acres of land on the James river in the county of Henrico, the boundaries of which are described as beginning at the mouth of Shockoe creek, and running down the river, & c. The next to the last line strikes Shockoe creek at a point designated; and the last line is as follows: " Thence down the said creek according to the meanderings thereof three hundred and sixty-one poles to the place it began." And they then traced their title by regular conveyances from William Byrd to themselves. One of these conveyances was dated the 28th of August, 1818, and conveyed the ground in controversy in this case, and there were subsequently several conveyances which conveyed the ground definitely, and described it as bounded on the west by Shockoe creek and land claimed by William Lownes.
The defendants introduced a deed, dated the 22d of November, 1808, from Nathaniel Anderson to James Lownes, by which Anderson conveyed to James Lownes all that parcel of land in the city of Richmond called the Falling Garden, " bounded on the east by Shockoe creek," and containing by estimation five acres; also a deed, dated August 1st, 1815, from James Lownes to William and Caleb Lownes, by which it was recited that by the conveyance from Byrd's trustees to James M. Doswell and the intermediate conveyances to James Lownes, the Falling Garden was described as bounded on the east by Shockoe creek, and that in the course of time and events, the channel of said creek was changed, so that a large space of ground formerly lying on the west margin of the creek is now situated on the eastern margin thereof; and the ground lying between the present boundary and what was claimed to be the former boundary of the creek, belonging to the Falling Garden, was conveyed to William and Caleb Lownes. These parties proceeded to divide the ground between them, and execute deeds to each other; that of William to Caleb Lownes, bearing date the 7th of March, 1817, conveying to Caleb the lot of ground in controversy in these suits. On the 10th of June, 1819, Caleb Lownes conveyed the said lot to Reuben Burton and Henry Clarke, to secure certain debts therein specified. It is under this deed that the defendants claim.
The disputed questions of fact in the cause were, 1st, As to the true locality of Shockoe creek. There is no doubt that the creek had changed its bed, and probably more than once. It seems to be pretty certain that in 1801 or 1802 the creek ran east of the lots in controversy; and it is equally clear that in 1808, when Anderson made his deed to James Lownes, the creek ran west of these lots, and has continued ever since to do so. 2d, If the true locality of the creek could not be ascertained, then the question was, which of the parties had had possession. The evidence on these questions is voluminous, and cannot be stated in any reasonable limits. The opinions of Judges MONCURE and RIVES contain so much of it as they deem material.
Upon the application of the plaintiffs, writs of error were awarded.
If it sufficiently appear from an inspection of the record of a cause wherein the whole matter was referred to the court, under Code, c. 162, § 9, that the evidence is all stated therein, and was intended to be made a part thereof, the finding of the judge, unless plainly erroneous, will not be disturbed on appeal if the evidence was conflicting.
Daniel and Sands, for the appellants.
Lyons, for the appellees.
MONCURE, P.
I think the Circuit court did not err in permitting the heirs of Henry Clarke to be made co-defendants in these suits under the provision in the Code, chapter 135, § 5, which provides that " if a lessee be made a defendant at the suit of a party claiming against the title of his landlord, such landlord may appear and be made a defendant with or in the place of his lessee." This privilege is given by law as well for the benefit of the landlord as of the tenant. The tenant has a right to be defended by the landlord, and the landlord has a right to defend his title whenever it is assailed by an action of ejectment against his tenant. This right of the landlord cannot be surrendered or prevented by any act of the tenant. The tenant cannot dispute the landlord's title, but having received possession from him, is bound to restore it at the termination of the lease. The whole property in controversy in these two suits was leased for eight years by Henry Clarke to Nicholas Riviera, a defendant in one of the suits, by deed dated the 14th day of January, 1852. A few days after the execution of this deed, to wit: on the 28th day of the same month, an agreement was entered into by and between R. D. and W. Mitchell (the former and assignee of the latter of whom are the plaintiffs in these suits), of the one part, and the said Nicholas Riviera and Angelo Baratta, a defendant in the other suit, of the other part, whereby it was, among other things, agreed that in the event the said Mitchells should establish their right to the said property, by a judgment or decree of any competent tribunal, then the said Riviera and Baratta should occupy the said property for the term of five years from the date of said agreement, at the annual rent of $300, which they were, in that event, to pay to the said Mitchells. By an arrangement between Riviera and Baratta, the property seems to have been divided equally between them and held in severalty, and...
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