Payne v. Buena Vista Extract Co

• Decision Date: 16 January 1919
• Citation: 98 S.E. 34
• Court: Virginia Supreme Court
• Parties: PAYNE. v. BUENA VISTA EXTRACT CO.

98 S.E. 34

PAYNE.

v.BUENA VISTA EXTRACT CO.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Discontinuance.]

Appeal from Circuit Court of City of Lynchburg.

Bill quia timet by the Buena Vista Extract Company against T. C. Payne. Decree for plaintiff, and defendant appeals. Affirmed.

This suit in equity was instituted in the court below by the appellee, which will be hereinafter designated the Extract Company, against the appellant, who will be hereinafter designated as Payne, by a bill quia timet to remove an alleged cloud upon the title to a certain tract of uninclosed wild mountain land, of certain boundaries supposed to contain over 300 acres, which will be hereinafter designated the 300-acre tract.

The Extract Company and Payne both claim title to the 300-acre tract as derived from a common source, namely, Henry Loving, executor of John Thompson, deceased, hereinafter designated Loving.

Payne's claim of title rests upon a deed to him from A. W. Fitzgerald and wife, of date May 19, 1905, duly recorded May 23, 1905. conveying the 300-acre tract, and upon an alleged executory contract in writing between Loving and A. W. Fitzgerald and his father, evidencing a purchase by the two latter from Loving of a tract of land of definite boundaries, but of uncertain acreage, hereinafter designated the 375-acre tract, which included the said 300-acre tract within its bounds. There is evidence in the cause that A. W. Fitzgerald was let into actual possession, under said contract, of a part of such 375-acre tract outside the bounds of the 300-acre parcel thereof, and that he from time to time exercised acts of ownership over the 300-acre tract, such as the cutting of timber therefrom, from some time in 1880 until the execution of said deed to Payne, and, indeed, afterwards down to the institution of the suit now before us, and after that, as will be hereinafter again mentioned, claiming the equitable title to the whole of this land under said contract as color of title.

There was another claim of title by A. W. Fitzgerald to a portion of said 375-acre tract, to wit, a parcel of 43 acres of it, not embraced in said 300-acre parcel, which it is not material, however, to further mention.

There is much conflict in the evidence in the cause over the questions of fact mentioned in the preceding paragraphs, but it will be assumed that the preponderance of the evidence shows that the contract mentioned existed; that a valuable consideration therefor existed (consisting of a giving up by the Fitzgeralds to Loving of the possession of a parcel of land as to which there was a controversy between such parties), and that other circumstances existed, not material to be mentioned, which made the contract valid and binding upon Loving and upon all subsequent purchasers from him with actual or constructive notice of such contract; and that A. W. Fitzgerald was in the actual possession aforesaid of a part of the 375-acre tract of land, claiming the right to hold possession of the whole of it under said contract, as color of title, as aforesaid, at the time that the Extract Company first purchased and obtained its deed to its land hereinafter more particularly mentioned, and at the time the latter obtained its second deed tothe same land, as will be also hereinafter more particularly set forth.

Payne makes no claim of title to said 300-acre tract of land as acquired by adverse possession of himself or of those under whom he claims title thereto.

The contract aforesaid was never recorded.

The Extract Company, as a complete purchaser for value thereof, derived title to a larger tract of land, which included in its boundaries the said 375-acre tract, by successive deeds, as follows (the full names of some grantors and grantees being omitted, as immaterial):

Loving to Rittenhouse, of date October 16, 1883.

Rittenhouse to Whelen, of date October 19, 1883.

Whelen to Buena Vista Extract Company, December 9, 1903.

Buena Vista Extract Company, to Leas & McVitty, December 14, 1906.

Leas & McVitty back to Buena Vista Extract Company, April 1, 1910.

The testimony in the cause of A. W. Fitzgerald is that Whelen, at the time of the purchase by and the conveyance aforesaid to the latter, had no notice of Fitzgerald's claim of equitable title. But according to the preponderance of the evidence in the cause Whelen was afterwards informed of such claim, and, as shown by the record, he instituted an action of ejectment against A. W. Fitzgerald to recover said 375-acre tract of land by declaration filed at the second January rules, 1901, with a statement that mesne profits were demanded for the unlawful use and occupation of such land, for five years next preceding the filing of the statement, of a certain sum per year, and also certain damages for shingles, tan bark, locust pins, and other timber alleged to have been unlawfully taken from the land. The defendant entered a plea of not guilty. On July 31, 1908, the following order was entered in that case:

"Alfred Whelen v. A. W. Fitzgerald. "In Ejectment.

"It appearing to the court that no order has been entered in this case for more than five years, upon motion of the defendant it is ordered that it be stricken from the docket."

On December 10, 1908, the following other order was entered by the same court in which said action of ejectment was instituted as aforesaid:

"Alfred Whelen v. A. W. Fitzgerald.

"This day came the Buena Vista Company, by its attorneys, and, representing to the court that it has purchased the title of the plaintiff to the lands in litigation here, who has conveyed the same to said Buena Vista Extract Company by deed, moved the court that this cause, which, by order entered at the July term, 1908 was stricken from the docket, no order therein having been entered for more than five years, be reinstated and hereafter proceeded in the name of said Buena Vista Extract Company. And, counsel for defendant being absent from court, it is ordered that this motion be docketed and continued to the first day of the next term."

On July 24, 1916, after the cause before us was instituted, the following further order was entered by the court last named:

"Alfred Whelen v. A. W. Fitzgerald. "In Ejectment.

"On motion of Buena Vista Extract Company, by counsel, the motion heretofore (on December 10, 1908) made by said Buena Vista Extract Company that this cause be reinstated upon the docket and be hereinafter proceeded in in its name, which was then docketed and continued, is now dismissed."

The cause before us was instituted on November 4, 1915. At that time the plaintiff in such suit was not in actual possession of said 300-acre tract, or any part of it. It was not in the actual occupancy even of any part of its larger tract of land, so far as the record discloses. The only acts of possession of the Extract Company shown by the record consisted in the patrol of its larger body of land, including the 300-acre tract, by rangers who passed over parts of such land at intervals of several months, and whose duties were to report any trespassing discovered and to protect the timber against fire.

Moreover, A. W. Fitzgerald was then still in actual occupancy of something less then 43 acres of said 375-acre tract, claiming the equitable title to the residue, which consisted of said 300-acre tract, under the above-mentioned contract, under which he had originally taken such actual possession as aforesaid. He still held such possession under such claim and color of title, as he testifies, in substance, in the cause, notwithstanding the said deed from himself and wife to Payne, because under an agreement between himself and Payne, he (Fitzgerald) still remained the beneficial owner of said 300-acre tract after such deed was made. This testimony was given in the presence of Payne, who did not testify, or introduce any evidence in the cause, to the contrary; and there is other evidence in the cause tending to prove such continued beneficial ownership in A. W. Fitzgerald.

Further mention of material facts will be found in the opinion below.

Volney E. Howard, of Lynchburg, for appellant.

Wm. A. Anderson, of Lexington, for appellee.

SIMS, J. (after stating the facts as above). Among the questions presented by the as-signments of error, those Involving the construction of the statute law of the state in the particulars hereinafter mentioned are novel in this jurisdiction and of exceptional interest and importance. We are indebted to the learned and able arguments of counsel on both sides of the cause, and we will consider and determine the questions presented in their order as stated below.

The first question we have to consider is this:

1. Did the court below have jurisdiction of this suit in equity by bill quia timet to remove a cloud upon the title to the 300-acre tract of land mentioned in the above statement?

We are of opinion that, under the statute presently to be cited, this question must be answered in the affirmative.

The Extract Company takes the positions: (a) That such jurisdiction existed independently of statute, because it was in possession of the 300-acre tract of land, and for that reason could not maintain an action of ejectment; and that, if this be not so (b) such jurisdiction was conferred by what is designated as the "White Act, " enacted February 20, 1912, amending section 3058 of the Code, and contained in Acts 1912, pp. 76-78, and 4 Pollard's Code, § 3058.

(a) Now, it is true that, if the Extract Company, at the time it instituted this suit, had had actual possession of the 300-acre tract of land (having, as it did, the legal title to the land), it could have maintained this suit without the aid of the statute next above mentioned, because, in such case, such plaintiff would have had no remedy at law by action of ejectment (Hogg's Eq. Pr. § 46, pp. 82, 83); but it appears from the statement of facts...