Plaintiff v. Strader

• Decision Date: 24 February 1873
• Citation: 6 W.Va. 257
• Parties: Strader et al., v. Goff et als. Valentine Strader and Mary his wife, William Sexton and Sarah Ann his wife, Jacob h inkle and margaret his wife, nathaniel Burnett and Providence his wife, Isaac P. Tetio and Rebecca Ann his wife and Lorenzo D. Strader, Plaintiffs in the action and Defendants in Error, against Philip Goff, Charles Hicks and Archibald Myers, Defendants in the Action and Plaintiffs in Error.
• Court: West Virginia Supreme Court

6 W.Va. 257

Strader et al.,

v.Goff et als.

Valentine Strader and Mary his wife, William Sexton and Sarah Ann his wife, Jacob

h inkle and margaret his wife, nathaniel

Burnett and Providence his wife, Isaac P.

Tetio and Rebecca Ann his wife and Lorenzo

D.

Strader, Plaintiffs in the action and Defendants in Error, against Philip Goff, Charles

Hicks and Archibald Myers, Defendants in

the Action and Plaintiffs in Error.

Supreme Court of Appeals of West Virginia.

Decided February 24th, 1873.

Syllabus.

a declaration in ejectment may be amended by the insertion of a count in the name of new plaintiffs.

The action, as to such plaintiffs, will be deemed to have commenced at the time of the service of the new count, with notice on the defendants; or if it be not served, then at the time of their pleading to or other recognition of the count.

When, in ejectment, the jury find in favor of the plaintiffs named in one count, but fail to find as to other plaintiffs, these may confess in favor of the defendants; and thereupon judgment may be rendered in their favor against the latter plaintiffs.

When an instruction asserts. a proposition apparently erroneous, and is given and excepted to, the judgment should be reversed, though it is not shown whether, in fact the instruction prejudiced the ap. pell ant or not.

When land was reported by a commissioner of delinquent and forfeited lands to a circuit superior court, and by the commissioner and the court treated as forfeited and accordingly sold, and a deed was made by the commissioner to the purchaser, the proceeding is prima facie evidence of the forfeiture; but it may be rebutted by proof.

When the title ot any person so treated as the owner of land is shown to have passed from him to another person, before the alleged delinquency or omission that occasioned the supposed forfeiture, or another collateral title is shown to have vested in such other person, the proceeding ceases to be prima /acieevidence of forfeiture of such title; and, unless other evidence make it necessary for the owner to prove the payment of;fhe taxes, he need not do so. But the purchaser at the commissioner 8 sale, may prove the forfeiture of such title, or adduce prima facie evidence of the forfeiture, that will make it necessary for the other in turn, to rebut it.

a person who is not a party in an action of ejectment, but granted land in controversy, with a covenant of general warranty, to one who is a defendant, cannot, in his own name, maintain a motion to set aside a verdict in favor of a plaintiff. On a motion to set aside a verdict because of information, accidentally received, that evidence regarded as conclusive, exists and can probably be attained, the affidavits or other sworn evidence of the informants should be adduced, or its absence accounted for. An affidavit, of a party to the action, or a third person, as to such information, is not sufficient. When there are two judgments in an action of ejectment one in favor of some of the plaintiffs against the defendants, and another in favor of the defendants against others of the plaintiffs, and the defendants appeal from the former judgment, it may be reversed and the other may remain undisturbed.

The case is sufficiently stated in the opinion of the Court.

Boggess & Bennett for Plaintiffs in Error. Brannon for Defendants in Error.

Hoffman, Judge.

In July and August, 1867, Valentine Strader and others, Plaintiffs, the Appellees here, caused copies of a declaration in ejectment for a tract of land in the county of Gilmer, containing seven hundred and twenty acres, with a notice subjoined, to be served on Philip Goff and others, Defendants, the Appellants here. At Rules in the Clerk's office of that county in the latter month, the Plaintiffs mentioned, filed the declaration, with proof of service of the notice. At the same time, the Defendants pleaded the general issue that they were not guilty of withholding the premises, and the Plaintiffs mentioned joined issue. On the 3rd of August, 1869, the Plaintiffs moved the Court for leave to file an additional count making new Plaintiffs; the Defendants objected to the filing of the count, to have any other effect than a new suit instituted on that day; and the Court deeming that, as to the new parties, it would have only such effect, permitted the Plaintiffs to do so; and accordingly they filed a new count, in the name of the original Plaintiffs and William L. Jackson and others, against the Defendants, for the same land; the Court stating that the statute of limitation might be determined on the trial. At the same time the Defendants pleaded the general issue and the Plaintiffs joined therein.

In April, 1871, the issue was tried and the jury found for Strader and others, the original Plaintiffs, the land mentioned in the declaration, and that they had an estate in fee simple therein, and found for them one cent damages. The Defendants moved to arrest the judgment, because the jury did not find for or against Jackson and others, the new Plaintiffs in the amended declaration; but the Court overruled the motion: and thereupon the latter Plaintiffs, by leave of the Court, confessed judgment in favor of the Defendants. And the Court rendered judgment that Strader and others, the original Plaintiffs, recover against the Defendants the premises found for them and costs; and that Jackson and others, the new Plaintiffs, who confessed, recover nothing, and that the Defendants recover against them costs.

The Defendants appealed against Strader and others, _the original Plaintiffs, from the judgment in favor of ' the latter against the former.

The counsel for the Defendants, the Appellants in this Court, urge that. the amendment of the declaration; and the failure of the jury to find between Jackson and others and the Defendants, the permission to Jackson and others to confess, and the judgment of the Court in favor of Strader and others; are errors, for which the judgment should be reversed.

For many years, the remedies for the determination of title and recovery of possession of real estate, were so complicated as often to thwart the pains of the lawyer and baffle the right of the citizen. In Virginia, the writ of right was simplified by statute, and the action of ejectment in the name of a feigned lessee and ejector, was in many respects convenient, however peculiar. But reforms were effected in other states, that, with modifications, were approved in Virginia. Accordingly at the revisal, in 1849, the chapter on the action of ejectment in the Code of Virginia was adopted, and, at the revisal in 1868, it was, with very slight changes, copied into the Code of this State.

This law seems to have been carefully devised to meet every contingency that forethought could anticipate. Though, doubtless, it does not reach such perfection, it contains many new provisions of great pratical convenience.

It is often very difficult for the actual claimant of land to determine in whom the legal title has been, or is vested, and in whose name an action should be instituted. This was heretofore a source of much embarrassment. In the writ of right the general rule that requires unity of interest in plaintiffs, did not allow the joinder of demandants who had not been jointly seized, but were in legal contemplation strangers. In the new action of ejectment, however, a singular innovation is made in this respect. It is provided that several persons may be named as plaintiffs, jointly in one count and separate-ly in another; and that the verdict shall be for the plain-tiffs, or such of them as appear to have right to the possession, and that the judgment shall be according to the verdict. Code of Virginia, Chapter 135, Code of West Virginia, Ch. 90, ss. 10, 23, 29. Thus, different persons, all or some or one, supposed to have right, may be united in the same action, and the question of right will be determined and settled, between all and each of them and the defendants, and so, by implication, between themselves.

The statutes allowing amendments to declarations and other pleadings, apply as well to actions of ejectment as to others. They generally permit the insertion or addition of any such matter as would originally have been proper. Code of W. Va. Ch. 125, "ss. 12; Ch. 131 ss. 8. When one or more plaintiffs have been named in the declaration in ejectment, and it is afterwards discovered or supposed that other persons may have the right, the same reason that authorizes the joinder of several different persons, not claiming jointly or in common, in an original declaration, admits the introduction of new plaintiffs by an amendment. When this is done, all may proceed in the one suit; the same surveys and depositions, thereafter made and taken, and the same evidence, may be used, as far as competentgand relevant; and the rights of all the parties may, at one time, be determined.

As, however, the law requires the action to be commenced by the service of a declaration and notice, so, when new plaintiffs are joined, the action, as to them, will be deemed to have commenced at the time of service; or it there be no service, but the amendment be filed and pleaded to, or otherwise recognized by the defendant, then, from the time of the pleading or other sufficient recognition.

The plea of the general issue by the Defendants, en-tered at one time to the original declaration and at a subsequent time to the amendment, is tantamount to one declaration.

Whether, however, the pleas be entire or separate, the verdict may be for a part of the plaintiffs, and, as to the others, for the defendants. When some of the plaintiffs have right and others have not, the law directs this Code of West Va., Ch. 90 ss. 23, 24. But when the verdict is for those of the plaintiffs who appear to have right to the possession of the land, and, by the judgment, they recover it against the defendants, why does the law require a finding in words as to the other plaintiffs, in...