Plaintiff v. Petitioner
| Decision Date | 13 February 1912 |
| Citation | 70 W.Va. 347 |
| Court | West Virginia Supreme Court |
| Parties | Pardee et al. v. Johnston et al. |
The exclusion of a juror for insufficient cause is not reversible error, if the twelve who are finally chosen to try the case are legally qualified, (p. 349).
2. Evidence Documentary Evidence Attested Copy.
An attested copy of a deed from the records of a county court clerk's office in this state, is primary evidence, and has the same probative force, to prove title, that the original would have, if it had been introduced for that purpose, (p. 350).
If such copy purports to be signed and sealed, and contains a scroll, or pen-flourish, following the name, or the official designation, of the grantor, it will be presumed that it was placed there by the recorder to represent a scroll which had been placed on the original, as and for a seal. Parol evidence is not admissible, in the absence of any charge of forgery, to prove that such scroll, or pen-flourish, was not intended by the recorder as a copy of the original, (p. 350).
4. Same Documentary Evidence Authentications Presumption.
A deed for land, made before the formation of this state, and recorded in the county wherein the land lies, for ten years or more before the bringing of a suit concerning the land, purporting on its face to have been made by a commissioner of delinquent and forfeited lands, under judicial proceedings in a court of Virginia, and purporting on its face to convey the title of certain persons therein, under such judicial proceedings, is, by sec. 2, ch. 76, Acts 1907, made prima facie proof of the grantor's au- thority and of the actual passing to the grantee, of the title ol such persons as it purports to pass. (p. 351).
5. Deeds Construction Questions of Law or Fact.
Whether a written instrument has the effect to pass title, is a question of law for the court. It is error to submit such question to the jury for their determination, (p. 352).
6. Trial Waiver of Objections to Reception of Evidence.
If, in the trial of a case, improper testimony has gone to the jury over objection, and the court, before the jury retires, offers to strike it out, and the party who objected to its admission resists such offer and the court thereupon allows the evidence to remain in the case, such party will be held to have waived the error, if any, in admitting the evidence, and will not be heard to complain in this Court, (p. 353).
Where two inconsistent descriptions of land are given in a deed, one describing it as being a part of a certain larger tract, and the other describing it by metes and bounds, which carries it outside of such larger tract, the latter description, being the more specific one, will prevail, (p. 353).
8. Ejectment Proceedings Verdict.
If a plaintiff in ejectment sues for his entire tract of land, and proves title, and the defendant controverts his title to a part of it only, and does not disclaim as to the residue, a general verdict for the defendant is erroneous. In such case the verdict should be for the plaintiff for so much of his land, at least, as was not actually controverted by defendant, (p. 354).
In the absence of actual adverse possession, constructive possession follows the older and better title to the full limit of the claimant's boundaries, (p. 355).
10. Same Admision of Evidence.
If a portion of the land, claimed under the older and better title, interlocks with a junior grant, and there has been no actual adverse possession, for the statutory period, within such interlock, it is error to admit evidence of the junior claimant's possession within the boundaries claimed by him, outside of the interlock.
Error to Circuit Court, Webster County.
Action by Barton Pardee and another against Aaron John- ston and others. Judgment for defendants, and plaintiffs bring error.
Reversed and new trial awarded.
Hayraond & Fox and Morton & Wooddcl', for plaintiffs in error.
W. S. W-ysong, Linn & Byrne, and B. P. Hall, for defendants in error.
Barton Pardee and G. W. Curtin brought ejectment in the circuit court of Webster county against Aaron Johnston, Wilson Lee Camden, and The Camden Lumber Company, a corporation, which resulted in a verdict and judgment for defendants, on the 23rd of April, 1909, and plaintiffs have brought tire case here on writ of error.
The first assignment of error relates to the court's action in rejecting G. L. Brady, and ten other drawn jurors, when making up the panel. This is not error. If the twelve who tried the case were made up from the regularly drawn jury list, and were qualified, plaintiffs have no cause of complaint. They were not entitled to> have certain jurors try the case, they were only entitled to twelve qualified men, and the record shows that the jurors who tried the case were qualified. The rejected jurors were related to one S. B. Hamrick who had granted to G. W. Curtin, one of the plaintiffs, the land in controversy, and had covenanted to warrant generally the title thereto. But, regardless of any question respecting their epialification, the court did not abuse its discretion in rejecting them.
Plaintiffs' title originates by deed from John Brown, commissioner of delinquent and forfeited lands of Nicholas county, dated October 10, 1844, to James Burne, who, as it appears from the recitals in the deed, was assignee of Levi J. Hooker, assignee of William Given, the purchaser at the commissioner's sale. A certified copy of this deed from the records of Nicholas county, containing the following fac simile of the grantor's signature, official designation, and scroll, as it appears on the record of deeds, was offered in evidence, viz.:
The grantor concludes his deed with this sentence: "In witness whereof the said party of the first part hereunto set his hand and seal the day, and year first above written," and the clerk before whom it was acknowledged for recordation, in his certificate of acknowledgment, designates the instrument as a "deed of bargain and sale.''
Two objections were made to the sufficiency of this paper as evidence of title, viz: (1) Because it did not have a seal, and (2) because it did not appear that the commissioner had authority to make the deed to James Burne, there being no proof that Given, to whom the sale was made and confirmed, had authorized him to do so. As to the first objection: True, the original deed was not produced. But sec. 5, ch. 130, Code 1906, makes a copy from the office, attested by the clerk, evidence in lieu of the original. The effect of the statute is to make the copy primary evidence, and to give it as much probative force as the original deed could have had. Robinson v. Pitzer, 3 W. Va. 335. The law presumes that the clerk performed his duty in copying the original into the record, that lie omitted no essential part which appeared on the original deed, and added no material part to the record which did not appear on the original. The scroll affixed by way of seal to a deed being essential to give effect to the instrument as a grant of land, it must not be presumed that a scroll, or flourish, appearing upon the clerk's record, which would, serve as a seal, if it appeared on the original, was added by the clerk, upon the record. The record speaks as a verity, and the law presumes that such essential part, appearing on the record, is a copy or representation of what appeared on the original. Wilson v. Braden, 56 W. Va. 372. Consequently, the scroll, or pen-flourish, appearing at the end of the above fac simile of the clerk's record, must be taken as a representation of what appeared on the original paper presented for recordation, as much so as the grantor's name, or any other word in the deed.
The custom of sealing written instruments originated at a time when few men could write, and when they used stamps to make impressions upon wax, technically called a seal, instead of writing their names, and, notwithstanding the reason for the custom no longer exists, the law continues the senseless custom. But, as a substitute for the old wax seal, the statute, ch. 13, sec. 15, Code 1906, permits a person to affix to a paper "a scroll by way of seal, or (to) adopt as his seal any scroll, written, printed or engraved, made thereon by another." One of the definitions of the word "scroll" given In Webster's Dictionary, is "A flourish, tracing, mark or design used in place of a seal." It will be observed, too, that the statute does not require the scroll to have any particular form, or to be placed at any particular point with respect to the name of the party adopting it. A scroll appearing immediately after the name of one person may be adopted by another whose name may appear on the instrument below the first name. Wilson v. 71mden, 56 W. Va. 373; Now ell v. Waller, 9 W. Va. 447. See also as apropos to the question here discussed, the following authorities: Smith v. TTanting. 10 W. Va. 599; Carper v. McDowell. 5 Grat. 212; Cosner v. MdCrum, 40 W. Va. 339; Miller v. Holt, 47 W. Va. 10,. Our conclusion, therefore, is that the certified copy of the deed of John Brown, commissioner, contains a scroll, and is intended to represent a scroll which was affixed to the original as a seal.
The second objection to the deed might have been a fatal one had it not been for the effect of a recent statute designed to constitute deeds of commissioners, under judicial proceedings, which have been recorded for more than ten years, prima facie evidence of the passing of the title of all persons whose title such deed purports to pass. We have reference to sec. 2, ch. 76, Acts 1907. which reads as follows: "That when any deed has heretofore been made...
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