Porter v. Staley

• Citation: 99 W.Va. 91
• Decision Date: 05 May 1925
• Docket Number: (No. 5111)
• Court: West Virginia Supreme Court
• Parties: Fanny L. Porter v. Frank Staley.

99 W.Va. 91

Fanny L. Porter

v.Frank Staley.

(No. 5111)

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1925.

Decided May 5, 1925.

1. Ejectment Both Parties Asserting Title From Common Grantor, Plaintiff Not Required to go Back of Common Source.

The general rule in ejectment is that where both parties assert title from a common grantor, plaintiff is not required to go back of the common source, (p. 96.)

(Ejectment, 19 c. j. § 39).

2. Adverse Possession Ejectment Sufficient for Plaintiff to Show Affirmatively Recoverable Legal Title in Himself; Seizin or Possession Adverse to all for Length of Statutory Time Bar to Real Action, Vests Recoverable Legal Title.

In such case, it suffices affirmatively for the plaintiff to show a recoverable legal title in himself for the land in con troversy. Seizin or possession of land, adverse to all for the length of time of the statutory bar to real action, vests title in the party so possessed. It makes recoverable legal title, (p. 96.)

(Adverse Possession, 2 C. J. § 552; Ejectment, 19 C. J. § 25).

3. Ejectment Plaintiff Relying on Deed Describing Exterior Boundaries and Making Exception of Smaller Tract Lying Within Such Bounds Must Locate Such Exception and Show That Defendant's Possession is Not Within Excepted Lands.

Where a deed offered in evidence in ejectment, on which the plaintiff relies to cover the land described in his declaration, after describing the exterior boundaries of the larger tract, makes an exception of a smaller tract that lies within said bounds, it is incumbent on the plaintiff for a recovery to locate such exception and to show that the defendant's possession is not within such excepted lands, (p. 95.)

(Ejectment, 19 C. J. § 201).

4. Same Determination of Weight of all Evidence is for Jury; If Evidence Conflicts on Controlling Question, Instructing

Jury to Find for Either of Litigants is Error.

It is for the jury to determine the weight of all the evidence in ejectment. Where there is a sharp conflict in the evidence on a controlling question, it is error to instruct the jury to find for either of the litigants, (p. 96.)

(Ejectment, 19 C. J. §§ 278, 280).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

Error to Circuit Court, Wayne County. Action by Fanny L. Porter against Frank Staley. Judgment for defendant, and plaintiff brings error.

Reversed and remanded,

C. W. Ferguson and E. J. Wilcox, for plaintiff in error. Vinson, Thompson, Meek & Renshaw, for defendant in error.

Woods, Judge:

Fanny L. Porter instituted an action in ejectment to recover ten acres of land from Frank Staley. The defendant interposed a plea of not guilty, and on the issue thereby raised the parties proceeded to trial. In support of her claim the plaintiff offered in evidence a deed from A. R. Thompson and wife, dated June 2, 1884, and recorded in the office of the county clerk of Wayne County on the 27th day of June, 1884. The description of the land conveyed by this deed is as follows: '' All that certain lot or piece of ground situated in the County of Wayne and State of West Virginia being a part of the military 'Savage Grant' and bounded and described as follows, viz: Beginning at a stone, thirty feet (30 ft.) North of the South boundary line of Lot Number Twenty-eight (28) in said military grant and fifty-eight (58) rods East of low water mark on Big Sandy River; thence due West fifty-eight (58) poles to low water mark on said Big Sandy River, thence down said River North sixteen degrees West, twenty-seven perches (26.16° W. 27p) to a post, thence East, sixty-five and one-tenth (65-l/10p) perches to a stone, thence South one degree East, twenty-six perches (S. 1° E. 26p.) to the place of beginning; containing ten acres strict measure. Provided, however, that this conveyance is made subject to certain ferry privileges, excepted and specified in a certain deed executed by Simon D. Morgan to Samuel W. Little, dated the twenty-ninth day of March, eighteen hundred and fifty-six; and subject also to the vested rights of the Chesapeake and Ohio Railway Company. Being the same property which was granted to the said A. R. Thompson by Samuel W. Little and Mary D. Little, his wife, by deed dated the eleventh day of May A. D.. one thousand eight hundred and seventy-one, and recorded in the office for recording of Deeds, &c. in said County of Wayne in Deed Book J, pages 539 & 540." To show a common source of title of the defendant with that under which plaintiff claims, the plaintiff further introduced in evidence a deed from Edwin L. Porter and Fanny L. Porter, nee Morgan (this plaintiff), to John H. Dingee, for a 555 acre tract, from which the ten acre tract, theretofore conveyed by said Thompson and wife to Fanny L. Morgan, as aforesaid, was specifically excepted from the grant. This was followed by the introduction in evidence of a deed from said Dingee to William E. Stokes, dated June 1, 1909, for the said 555 acre tract; a deed for same property from said Stokes to Blair P. Wilson, dated June 2, 1909; a deed from said Wilson to Kenova Land Company, dated August 9, 1909, and a deed from said Kenova Land Com- pany to Frank Staley, the defendant, dated March 30, 1917, the last mentioned deed conveying a small tract of about 1 and 1/2 acres lying along the Big Sandy River. This strip of land, about 57 feet wide on the North end and gradually widening out to about 183 feet on the South end, and averaging about 445 feet in length, is the land which the plaintiff claims the defendant withholds from her. The plaintiff to further maintain the issue, introduced as a witness, "W. Austin Smith, a surveyor, who had been directed by an order of the Court to go upon the property and do such surveying as either party in interest might require. He testified to the location of the exterior lines of the land of the plaintiff set out in her declaration from the description given in the Thompson deed, and filed an official plat, showing the surveying done by him; and that the total acreage included therein was 11.62 acres, which included 1.74 acres excepted as belonging to the C. & 0. Ry. Co., leaving a remainder of 9.88 acres belonging to the Fanny Porter lot. The exception of the said railway company's land was set out by metes and bounds on the official plat, and as there located, does not cover any portion of the land claimed by the defendant. Divers witnesses were introduced, who testified to the plaintiff's possession of the entire boundary of the land described in the declaration, for a period continuous from the date of the plaintiff's deed in 1884, to the time of the institution of this suit. To sustain the issue on his part, the defendant offered C. L. Vickers, a civil engineer, as a witness. He testified to surveying done by him whereby the land described in the declaration was located largely without the land located by the Smith survey, and entirely without the land claimed by the defendant. A blue print showing the result of his surveying was filed with his evidence. Another witness testified to some conversation that he had with William Ferguson, who claimed to be the agent of the plaintiff, about buying the land that was in controversy. The defendant, thereupon renewed a motion that he had made at the conclusion of the plaintiff's evidence, to strike out all the deeds read in evidence to the jury. The court sustained the motion and directed the jury to return a verdict for the defendant,...