Postlewaite v. Wise

• Decision Date: 13 November 1880
• Parties: POSTLEWAITE et al. v. WISE.
• Court: West Virginia Supreme Court

17 W.Va. 1

POSTLEWAITE et al. v. WISE.

Supreme Court of West Virginia.

November 13, 1880

Absent HAYMOND, JUDGE.^[a1]

1. In an action of ejectment, brought under the code of Virginia of 1860, the land is described with sufficient accuracy in the declaration, when the county in which it lies is stated, and it is said to lie adjoining what is known as the old William Postlewaite farm, and that it contained one hundred and fourteen acres, and its boundaries are set out in detail by courses and distances; or where it is stated in what county it lies, the number of acres it contains, its boundaries by courses and distances in detail, and is described as the same that was conveyed to the plaintiff by the heirs of William Postlewaite, deceased, by deed bearing date June 10, 1856 duly recorded in the recorder's office of said county.

2. It is sufficient in such a declaration to allege, that the plaintiffs on a certain day were possessed of and claimed title to this tract of land in fee simple, describing it as above, and that the defendant afterwards, to-wit, on a certain day named, entered into the said premises and ejected them from their said land, and still holds them out of the possession thereof; it not being necessary to say in such a declaration that this withholding the possession from them was unlawful.

3. If such declaration contained several counts, and no damages are claimed at the end of each count, but the entire declaration concludes: " In all to the damage of the plaintiff $500.00, and therefore they sue," this claim of damages must be regarded as on account of the wrongs named in each several count, and therefore a verdict and judgment may on such a declaration be rendered for damages.

4. If on the first trial of such a case, copies of certain deeds offered by the plaintiffs are admitted, and the defendant objects to them, because their acknowledgement and certificate of recordation are insufficient, and on a writ of error they are decided by this Court to have been properly received in evidence, and the case being for other reasons remanded, on the second trial thereof copies of the same deeds with the same acknowledgement and certificates are again offered in evidence, the court below is bound to admit them; and this court on a writ of error will not review its action, though the case, when formerly before this Court, was decided by only two Judges.

5. Upon a demurrer to the evidence by the defendant the circuit court properly held, that a party, under whom the plaintiffs claimed the land, was the heir of a certain other party, and that such party was dead, when the deed to them recited this as a fact, and was signed not only by the party named as such heir, but by the brothers and sisters of the person named and stated to be dead, such death and heirship may, under the circumstances, be proved by the recitals of a deed.

Writ of error and supersedeas to a judgment of the circuit court of the county of Monongalia rendered on the 21st day of September, 1877, in an action of ejectment in said court then pending, wherein Jarvis Postlewaite and other were plaintiffs, and John H. Wise was defendant, allowed upon the petition of said Wise.

Hon Charles L. Lewis, late judge of the second judicial circuit rendered the judgment complained of.

GREEN PRESIDENT, furnishes the following statement of the case:

Jarvis Postlewaite and Albert Postlewaite brought their action of ejectment in the circuit court of Monongalia county in June, 1865, against John Wise, to recover a certain tract of land in said county. The tract of land is described in the first count of the declaration, as " adjoining what is known as the old William Postlewaite farm, containing one hundred and fourteen acres," and its metes and bounds are set forth, all the corners and distances and abuttals being given, and it is further described in the second count, as lying and being in said county, and as the same tract that was conveyed to the plaintiffs by the heirs of William Postlewaite, Jr., by deed bearing date the 10th day of June, 1856, and as part of the lands conveyed to William Postlewaite, Jr., in his lifetime by Henry Barrichman and wife by deed dated 11th of September, 1809, recorded in the recorder's office of said county, and its metes and bounds and abuttals are again set forth in detail. These two counts are in the names of Jarvis Postlewaite and Albert Postlewaite, as plaintiffs. In a third count, which is in the name of Jarvis Postlewaite and several others, heirs at law of Ruth Postlewaite, plaintiffs, the tract of land is described as lying and being in said county, it being the same tract of land that was conveyed by Henry Barrichman and wife to William Postlewaite, by deed bearing date the 11th day of September, 1809, and now on record in the recorder's office of said county, in book D, page 482, but neither its boundaries nor size are set out in this count; and the declaration concludes as follows: " in all to the damage of the plaintiffs $500.00, wherefore they sue."

A trial of the case was had in February, 1868. The plaintiffs claimed title by patents to Denmore Howard, dated October 12, 1789, and Davis Shockley, dated March 13, 1805, and by deeds from these patentees to the grandfather of the plaintiff, William Postlewaite, whose heirs conveyed to the plaintiffs. The defendant claimed title through a patent granted to Samuel Lemley, on August 1, 1856. On the trial the plaintiffs offered several deeds in tracing their title to the original patentees, Howard and Shockley, which were objected to by the defendants, on the ground that the several acknowledgments and certificates of recordation were informal and imperfect. A verdict and judgment was rendered in favor of the plaintiffs; and the defendant brought the case into this Court by a writ of error. The case was reviewed; and a new trial awarded by this Court for the reasons set forth in Judge Maxwell's opinion in 3 W.Va. 455, et seq. But the Court expressly decided that the acknowledgments and certificates of the various deeds offered by the plaintiff in evidence were sufficient, and that the court below properly admitted those deeds in evidence.

On the return of the case to the circuit court the defendant demurred to the declaration and each count thereof; and the court overruled his demurrer. The case was again tried on the plea of not guilty, and a verdict was rendered in favor of the plaintiffs in the first two counts in the declaration for the entire tract of land in dispute, and that the plaintiffs had a fee simple title thereto, and also for $95.00 damages, The plaintiffs proposed to release this verdict to the extent of one seventh part of this tract of land, it being the share of Mary Long, one of the seven children of William Postlewaite, which the plaintiffs had failed to prove had been conveyed to them; but the defendant objected and moved to set aside the verdict, and asked a new trial. The court set aside the verdict and awarded a new trial.

On March 19, 1877, the case was again tried by a jury who found this verdict:

" We, the jury, find for the plaintiffs, Albert and Jarvis Postlewaite, six sevenths undivided of the land in the declaration mentioned and described, being the same land and interest conveyed to them by Joseph Postlewaite, Jarvis Postlewaite and Elizabeth Postlewaite, his wife, Jacob Critten and Deborah, his wife, Gabriel Critten and Phebe, his wife, and Malinda Clayton, children and heirs at law of William Postlewaite, Sr., deceased, by deed bearing date the 10th day of June, 1856, and the one-seventh undivided of said land inherited by the said plaintiffs from their father, William Postlewaite, Jr., deceased, who was also a child and heir at law of said William Postlewaite, Sr., deceased, and bounded as follows: Beginning at a black oak marked ‘ B. O. stump, on the plat filed in this cause marked ‘ A; " thence running south twenty-four and one-half east ninety-one poles to a hickory; thence south sixty-three degrees east twenty and one half poles to a white oak; thence south eighty-one degrees east one hundred and seventy-six poles to a stone; thence north fifty and one half degrees east fifty-three poles to pointers; thence north fifty-one degrees west one hundred and forty-six poles to a poplar at ‘ B’ on said plat, and thence west to the place of beginning, the whole estimated to contain one hundred and fourteen acres. And we further find that the said plaintiffs have the fee simple in said six sevenths undivided of said land; and we also find for the said plaintiffs damages for the rents and profits on said six sevenths undivided of said land the sum of $325.00. All of which findings are subject to the opinion of the court on the demurrer to the evidence filed in this cause--that is to say, if the law arising on the said demurrer to said evidence be for the plaintiffs, then we find for the plaintiffs aforesaid, but if the law arising on the said demurrer be for the defendant, then we find for the defendant."

The demurrer to the evidence referred to shows, that the plaintiffs, Jarvis Postlewaite and Albert Postlewaite, traced this title to the land in controversy to the original patentees of this land, whose patents issued severally October 12, 1789, and March 13, 1805; and their title to six undivided seventh parts of this land is satisfactorily shown if the deeds, on which they relied and which were admitted in evidence by the court, were properly admitted. They were objected to, because they were copies from the clerk's office of Monongalia county, and it was insisted by the defendant, that their acknowledgment and certificates were not such as authorized the admission of four of these deeds to record. But the court overruled...