Paxton v. Rtjcker.

• Decision Date: 01 November 1879
• Citation: 15 W.Va. 547
• Parties: Paxton v. Rtjcker.
• Court: West Virginia Supreme Court

15 W.Va. 547

Paxton

v.Rtjcker.

Supreme Court of Appeals of West Virginia.

November1, 1879.

Upon the hearing of a rule against a person to show cause why he should not give up possession of a certain tract of land which had been sold to another under a decree of the court, the court makes a decree which shows that the court heard the cause upon

the rule, the answer thereto, * * * " and upon the depositions taken upon the rule, and the evidence of the witnesses adduced in open court." But the record does not show what " the evidence of the witnesses adduced in open court" was. Held:

I. The Appellate Court will not assume that the court below erred in its decree when the testimony that was had before that court has not been preserved and is not before the Appellate Court.

II. A rule may be awarded against a person, not a party to the suit, in possession of land sold under a decree of the court to another person, to show cause why he should not surren der possession to the purchaser. Trimble et al. v. Pattern, trustee, 5 W. Va. Appeal from and supersedeas to a decree of the circuit court of the county of Kanawha, rendered on the 16th day of July, 1872, in a cause in said court then pending, wherein Lyle Paxton was plaintiff and Wesley Rucker was defendant, taken by said Rucker.

Hon. James W. Hoge, late judge of the seventh judicial circuit, rendered the decree appealed from.

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

At the sale of certain lands belonging to the estate of Andrew Parks deceased, by Charles Hedrick, James EL Nash and A. T. Laid ley commissioners appointed for that purpose by an order of the circuit court of Kanawha county, made in the cause of Thompson C. Watkins et al. v. The administrator and heirs of Andrew Parks, deceased, et al., on the 16th day of April, 1869. Lyle Paxton, on the 24th day of November, 1869, became the purchaser of lot mumber four, for the sum of $252.00 which sale was confirmed by said court, April 12, 1870. On the 22d day of March, 1871, said Paxton filed in the circuit court of said county an affidavit in said cause, stating that Wesley Rucker was, at the time of said purchase, and is, in possession of about two hundred acres of said land, within the boundaries of said lot number four; and alleging that said Rucker has no right or title thereto, or to the possession thereof, but wrongfully and illegally withholds the same from affiant; that he has several times since his said purchase requested said Rucker to attorn to him, or surrender the premises occupied by him to affiant, but that Rucker constantly and persistently refused to attorn or surrender to affiant, &c. &c. and affiant therefore asked the court to award a rule against said Rucker, to show cause why a writ of possession should not be directed to the sheriff of Kanawha county, requiring him to deliver possession of the premises to affiant. Which rule the court awarded against Rucker to show cause why he should not be fined for contempt, and why a writ of possession should not issue against him.

On the 12th day of April, 1871, Rucker answered the rule, stating that he and his father Benjamin Rucker, purchased said land December, 20, 1851, from J. F. Rucker, that they had lived there ever since, claiming it as their own, and paying the taxes as they came out against them, that the sale and purchase were valid; three hundred acres; J. F. Rucker lived upon it and claimed it as his own long before this sale was made about fifty acres under fence and cleared; that respondent had built upon it, and planted an orchard; and has and still holds with his father Benjamin Rucker, and claim and hold this three hundred acres, where they now live, against and adversely to all the world; that he is advised an action of ejectment is the proper mode in which to determine the title, "and he demurs to the rule, or asks the court to dismiss it at the cost of the party who took it &c" that some six years ago he purchased from his father his one-half of the land, and got trom him a deed therefor, of record in Kanawha county recorder's office. He filed with his answer a writing, purporting to be a title bond to Benjamin Rucker, Sr., and Wesley Rucker "for three hundred acres or more" from Joel F. Rucker, dated December 20, 1851. Smith and McWhorter objected to the paper, "because it has a false date; because it was not made and delivered on the day it bears date; that it was written very recently, and was introduced for a fraudulent purpose, and strict proof will be required as to its execution in every particular." Respondent also filed with his answer a deed from Benjamin Rucker to him, dated September 18, 1865, for three hundred and seven acres, recorded October 30, 1865, in Kanawha county recorder's office. On the 16th day of July, 1872, said court entered the following decree:

"And now at this day, to-wit: At a circuit court held for Kanawha county, at the court-house thereof, on the 16th day of July, 1872, this cause came on this 16th day of July, 1872, to be heard upon the rule heretofore awarded to Lyle Paxton, the purchaser of lot number four, sold under decree of the court in this cause against Wesley Rucker, the answer of said Rucker to the rule, and all the papers filed with the petition for rule and the said answer, upon the report of sale of the lands sold in this cause, and the plat laying off the same into lots for sale, upon the depositions taken upon the rule, and the evidence of the witnesses adduced in open court, qand was argued by counsel. Upon consideration of all of which the court is of opinion that Lyle Paxton, the purchaser of lot number...