Morris v. Nelson, No. 10333

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 136 W.Va. 722,68 S.E.2d 9
• Parties: MORRIS, v. NELSON et al.
• Docket Number: No. 10333
• Decision Date: 18 December 1951

Page 9

68 S.E.2d 9 136 W.Va. 722 MORRIS,
v.
NELSON et al. No. 10333. Supreme Court of Appeals of West Virginia. Submitted Oct. 2, 1951.
Decided Dec. 18, 1951.

Page 10

Syllabus by the Court.

1. A general verdict for the defendant in an action of ejectment, if warranted by the evidence, is sufficient and valid.

2. The general rule in ejectment is that the plaintiff must recover upon the strength of his own title and not upon the weakness of the title of the defendant.

3. A verdict of a jury, based upon conflicting evidence, will not be disturbed by the court unless such verdict is against [136 W.Va. 723] the preponderance of the eividence or is without evidence to support it.

J. T. Reynolds, Lon G. Marks, Charleston, for plaintiff in error.

Dewey B. Jones, Charleston, for defendants in error.

HAYMOND, Judge.

This action of ejectment was instituted in June, 1949, in the Court of Common Peas Of Kanawha County, by the plaintiff Okey Morris to recover from the defendants, Lottie Nelson and Sidney Nelson, her husband, possession of a small triangular parcel of land containing approximately 2.2 acres which the plaintiff alleged was a part of a larger tract of 25 acres of land situated on Mill Creek, Elk District, Kanawha County, the possession of which small triangular parcel of land the plaintiff charged the defendants unlawfully withheld from him. To the declaration of the plaintiff, filed in the clerk's office on June 15, 1949, the defendant Lottie Nelson, on July 9, 1949, filed her plea of not guilty and a disclaimer by which she renounced any right, title or interest in the 25 acres of land described in the declaration, except the small triangular parcel of land containing approximately 2.2 acres and any other portion of the tract of 25 acres which might intersect or overlap a certain parcel of land conveyed to her by W. D. Lewis and Jennie Lewis, his wife, by deed dated May 24, 1913. At the same time the defendant Sidney Nelson, without entering any plea to the declaration, filed his disclaimer by which he renounced all right, title or interest to the land described in the declaration. Upon the foregoing pleadings and the disclaimers of the defendants, the case was tried by a jury which, on January 14, 1950, returned a general verdict in favor of the defendants. By order entered January 24, 1950, the court of common pleas overruled [136 W.Va. 724] the motions of the plaintiff to render judgment for the plaintiff notwithstanding the verdict of the jury and to set aside the verdict and entered judgment upon the verdict and awarded costs in favor of the defendants. By order entered May 11, 1950, the Circuit Court of Kanawha County refused the petition of the plaintiff for a writ of error and supersedeas to the final judgment of the Court of Common Pleas of Kanawha County, and to that judgment of the circuit court this Court granted this writ of error upon the petition of the plaintiff.

The tract of land of 25 acres to which the plaintiff claims title, and in which he contends the parcel of 2.2 acres in dispute between the parties is included, was conveyed to the plaintiff and his brother, Kelly Morris, by Algie Swinburn by deed dated March 21, 1938, and by deed dated July 21, 1939, Kelly Morris conveyed his interest in the property to the plaintiff. Certified copies of these deeds and other mesne conveyances during a period of approximately thirty-four years under which Algie Swinburn held, and the plaintiff, as his successor, holds, title to the tract of 25 acres of land, were introduced in evidence by the plaintiff.

The defendant Lottie Nelson claims title and ownership to the small parcel of 2.2 acres in dispute by virtue of a deed to her for a small triangular parcel of land, the area of which is not stated in the description in the deed, from W. D. Lewis and Jennie Lewis, his wife, dated May 24, 1913.

The plaintiff, who was unacquainted with the tract of 25 acres and with the land claimed by the defendant Lottie Nelson, before he and his brother purchased the land from Algie Swinburn, entered into possession of the tract of 25 acres in 1938, and since then he and his wife have resided in a dwelling on a part of the tract

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located west of but not included in the 2.2 acres in dispute between the parties. The defendant Lottie Nelson and her husband, Sidney Nelson, in 1912, under a contract of purchase, entered into possession of the small tract of land [136 W.Va. 725] conveyed to her by her deed from the Lewises dated May 24, 1913, and since that time they have occupied and resided upon what they claim is a part of the land covered and conveyed by that deed, and they claimed the land so occupied by them to the extent of the boundaries set forth in the deed.

By the plea of the general issue, filed by the defendant Lottie Nelson, the only plea permitted in an action of ejectment by the provisions of Section 10, Article 4, Chapter 55, Code, 1931, and under which the defendant may give in evidence any matter which, if pleaded in the former writ of right, would have barred the action of the plaintiff, and by the disclaimers filed by both defendants with her plea, the issue between the parties was narrowed and confined to the 2.2 acres in dispute which are definitely described metes and bounds in the disclaimer of the defendant Lottie Nelson and in the declaration of the plaintiff.

The plaintiff introduced evidence to show that the 2.2 acres in dispute were included in the description of the 25 acre tract of land set forth in the deeds to him from Kelly Morris and Algie Swinburn. The plaintiff and a surveyor, who made a survey of the 25 acre tract in 1947 and a map of the land as surveyed by him which was filed in evidence with his testimony, both testified to that effect. Plaintiff also introduced evidence to the effect that parts of the 2.2 acres in dispute were covered by underbrush and small timber when the plaintiff moved on the 25 acre tract in 1938, that only small portions of the 2.2 acres had been or were cleared, and that those portions had been only intermittently cultivated or farmed since that time. The evidence introdudced in behalf of the plaintiff also tended to show that a two room dwelling which the plaintiff says he permitted a man named Bill Hickman to build on the 2.2 acres was built in the summer of 1939, and that at that time there were no fences upon any part of the 2.2 acres. The plaintiff also introduced evidence to prove that the tract of 25 [136 W.Va. 726] acres of land was a part of Lot R of lands indicated on a map designated as the Lower Steel Survey filed in evidence as plaintiff's Exhibit A. This map indicates the division line between Lots R an N of the Lower Steel Survey and the plaintiff relies upon the map to support his contention that the land claimed by the defendant Lottie Nelson was a part of Lot N and that no part of it was included within the boundaries of Lot R as disclosed by that survey.

The evidence introduced in behalf of the defendants tended to show that the 2.2 acres in dispute were included within the boundaries described in the deed from the Lewises to the defendant Lottie Nelson. Both of the defendants who were well acquainted with the 25 acre tract of the plaintiff and the land claimed by the defendant Lottie Nelson, and had known those lands and other lands in the immediate neighborhood for many years, testified that the 2.2 acres in dispute lay within the boundaries contained in the deed from the Lewises to the defendant Lottie Nelson. The defendant Sidney Nelson also testified that the triangular parcel of land claimed by the defendant Lottie Nelson, under her deed from the Lewises, had been surveyed by a surveyor named Cole in 1933 and that he had assisted Cole in making the survey. The defendants introduced a map of this survey, which had been filed of record in the Circuit Court of Kanawha County in prior litigation between Sidney Nelson and other parties involving other land claimed by Nelson in that litigation. This map showed only two lines which ran from the base and joined at the apex of the triangular parcel of land but did not show any line at the bottom or the base of the triangle. A civil engineer, introduced as a witness for the defendant, testified that in 1948 he made a map which was introduced in evidence with his testimony, based on the Cole survey and map, and that on his map he...