Palmer v. Magers
| Decision Date | 27 January 1920 |
| Docket Number | 3629. |
| Citation | 102 S.E. 100,85 W.Va. 415 |
| Parties | PALMER v. MAGERS. |
| Court | West Virginia Supreme Court |
Submitted January 20, 1920.
Syllabus by the Court.
A motion for a continuance based upon the absence of a witness for whom process went to a distant county only about a week before the date fixed for the trial, and without information to the officer, so far as the record shows, as to the place of residence or abode of the witness in such county, and unaccompanied by any showing of probability of procurement of his attendance at the next term of the court, may be properly overruled.
On the trial of an issue as to the location of a boundary line instructions based upon only one of two theories of location both of which are supported by some evidence in the case, and wholly ignoring the other, are erroneous and justify the award of a new trial; they being the only instructions given.
An instruction founded upon only a part of the conflicting evidence in a case and ignoring the residue thereof, given in the absence of any others founded upon such residue unduly emphasizes the evidence on which it rests, and is erroneous for that reason.
On the trial of an action of unlawful detainer, the right in which is dependent upon the true location of a disputed boundary line, the refusal of an instruction requested by the defendant and enunciating the law of peaceable entry upon disputed premises under a claim of right is erroneous, even though there is a lack of evidence of forcible entry in the case.
A trial court may properly refuse instructions based upon immaterial and nonprobative facts incidentally revealed on the trial of an issue.
On an issue as to the establishment of a disputed line by agreement, the court may properly instruct the jury that the agreement is not binding, if entered into under a mistake, in the absence of proof of conduct making it absolute and conclusive, and should do so upon a proper request.
When one party to a trial improperly predicates his case upon only a part of the evidence, the other may properly request instructions not ignoring any evidence favorable to his antagonist, but limited to the issue he has tendered, and, if requested, they should be given.
A motion to set aside a verdict, based upon clear and decided weight and preponderance of the evidence against it, should be sustained.
If one terminus of a disputed boundary line called for in a deed is clearly fixed and rendered certain by evidence and the other unidentified and uncertain, and a line run from such fixed corner agrees perfectly with the calls of the deed for course and distance, the former governs and controls the location of the other and the distance called for in another line running to it.
Error to Circuit Court, Marshall County.
Suit by Linzy Palmer against Everett E. Magers. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
J Howard Holt, of Moundsville, for plaintiff in error.
D. B. Evans and Martin Brown, both of Moundsville, for defendant in error.
The first complaint on this writ of error to a judgment for the plaintiff, in an action of unlawful detainer, is based on the overruling of a motion for a continuance. The affidavit fails to show requisite diligence. The case was set for trial and tried in Marshall county October 17, 1918, and the process for the witness was sent to Kanawha county October 11, 1918, and came back with a return of "Not found" indorsed thereon. The meagerness of time allowed may have prevented diligent search for the witness, and the affidavit fails to show that the writ was accompanied by information to the officer as to the residence or location of the witness in Kanawha county, which might have enabled him to serve the subp na. Three or four days is a very short period in which to locate a stranger in a large and populous county. A serious effort to obtain the attendance of the witness, under such circumstances, would have necessitated ascertainment of his place of residence and warning to him of intention to require his attendance. Wytheville Ins. & B. Co. v. Teiger, 90 Va. 277, 283, 18 S.E. 195; R. & M. Railroad Co. v. Humphreys, 90 Va. 425, 18 S.E. 901. Another fatal defect in the case made for a continuance was failure to prove attendance of the absent witness at the next term could probably be secured, or his deposition taken. Since an allowance of a continuance on account of the absence of a witness whose evidence can never be obtained would be useless and idle, this fact should always be shown in support of the motion. Phillips v. Com., 90 Va. 401, 18 S.E. 841; State v. Brown, 62 W.Va. 546, 59 S.E. 508.
The land in controversy has an area of not more than 2 acres, and the controversy turns on the location of a division line. The parties derived their titles from a common source; their farms having once constituted a larger one owned by Miles Bonar, and containing 354 acres, as surveyed by W. V. Hukill, in March, 1902. By a deed dated October 17, 1904, Bonar conveyed it to W. B. Hicks, who had a division line run through it by S. Howe Bonar, an engineer, cutting it into two parts containing, respectively, as estimated by the surveyor, 159.8 acres and 196.5 acres, for conveyances to two or more persons named Woodruff. By a deed dated April 1, 1905, Hicks conveyed the larger part to Elias B. Woodruff, who conveyed it to the plaintiff by a deed dated June 21, 1906. Hicks conveyed the other part to Elias B. and Silas H. Woodruff by a deed dated April 1, 1905, and they reconveyed it to him in 1906. By a deed dated September 4, 1907, he conveyed it to Everett E. Magers, the defendant.
The original Bonar tract was very irregular in form and the division line has two angles in it breaking it into three parts. Treated as a whole, it begins on the S. L. Johnson line, which is also the southeast line of the Bonar tract, and runs across to the boundary line between the Bonar tract and the M. B. Pierce farm. The controversy involves only the location of the northern end of the division line running from the second angle to the Pierce line, a distance of 800 or 900 feet. The monument at that angle called for by the deed, is "a stake near a large sassafras," and its location is the principal bone of contention. As claimed by the plaintiff, it stood about 70 feet northwest of the sassafras, and, as claimed by the defendant, not over 6 feet northwest thereof.
Plaintiff predicates his case largely upon his deed, the relation in point of time between his deed and that of the defendant, and the testimony of the surveyor, Bonar. His deed antedates that of the defendant and the latter calls for a stake in the Pierce line as the "corner to Linzy Palmer," and his line runs thence "with Palmer's line S. 3~ 30' W. 13.76 chains to a stake near a large sassafras," the call in that deed for the distance between the monument last mentioned and the one at the other angle in the division line, a stake and large stone, 15.12 chains, going about 70 feet northwest of the large sassafras tree. Bonar swears he established the corner at that point. He also says he was directed to run the line so as to put 200 acres in the larger or eastern portion, and that he ran a trial line which placed the stake 5 1/2 feet from said tree and then, by final survey, moved it 66 feet farther toward the northwest and removed the last line that distance in that direction, to enable him to change his first line, the one running from the Johnson line, some distance in the opposite direction, in order to leave a desirable building site in the smaller tract, and at the same time leave the areas of the two parcels nearly the same as they were fixed by the trial survey. His trial line began in the Johnson line west of a lynn tree and ran into the tract to be divided, and his final or established line began at the lynn tree. On his trial measurements, he had entered in his notebook a stake "near a...
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