Rowland Land Co. v. Barrett

• Court: West Virginia Supreme Court
• Writing for the Court: WILLIAMS, J.
• Citation: Rowland Land Co. v. Barrett, 70 W. Va. 703, 75 S. E. 57 (W. Va. 1912)
• Decision Date: 23 January 1912
• Parties: ROWLAND LAND CO. v. BARRETT.

75 S.E. 57

70 W.Va. 703

ROWLAND LAND CO. v. BARRETT.

Supreme Court of Appeals of West Virginia.

January 23, 1912

Submitted March 22, 1910.

Rehearing Denied June 15, 1912.

Syllabus by the Court.

A paper read as evidence to the jury, and described in a skeleton bill of exceptions in such manner as to make its identity reasonably certain, is properly a part of such bill of exceptions, if it appears to be copied by the clerk into any part of the certified record. Its identity, and not its position in the record, is essential.

A recital in a de cree, made in a proceeding to sell forfeited and delinquent lands, that the land was forfeited in the name of a certain designated former owner is prima facie evidence of the fact of such forfeiture, and of the court's jurisdiction to decree a sale of the land.

The rule in Stockton v. Morris, 39 W.Va. 432, 19 S.E 531, discussed and applied, and also distinguished.

The recital in a deed that the grantor obtained title by a certain other deed is not evidence against an adverse claimant of such grantor's title.

Point 3 of syllabus in Wilson v. Braden, 48 W.Va. 196, 36 S.E. 367, approved and applied.

(Additional Syllabus by Editorial Staff.)

The rule that an inclusive grant from the commonwealth excepting parcels included within the exterior boundaries without proof of the location of the parts excepted is void for uncertainty does not apply to a deed given subject "to the rights of the occupant claimants according to the provisions of the several acts of the assembly relating thereto."

A commissioner's deed of forfeited lands excepting such claims as were plotted out by the commissioner upon the original map filed by him with the report of his proceedings as to a former sale is void where the map referred to is proved to have been lost, and there is no proof as to the location of the excepted parcels.

When a conveyance of land made by a special commissioner under a sale under a decree of court is offered in evidence to pass title, it must be accompanied by either the whole record of the cause or enough to show that the parties holding title affected by the deed and also the land itself were before the court, and that it was decreed to be sold and was sold and the sale was confirmed by the court, and that authority was given by the decree to the commissioner to make the conveyance.

Error to Circuit Court, Raleigh County.

Action by the Rowland Land Company against R. E. Barrett. From a judgment for defendant, plaintiff brings error. Affirmed.

O. P. Fitzgerald, Jr., and Brown, Jackson & Knight, for plaintiff in error.

McGinnis & Hatcher and A. A. Lilly, for defendant in error.

WILLIAMS J.

Plaintiff brought ejectment to recover two tracts of land, one containing 1,176 acres and the other 4,217 acres, both described by metes and bounds. Defendant disclaimed title to all, except two contiguous tracts containing 188 acres, situated at the forks of Big Coal river, in Raleigh county, which he describes by giving the exterior boundaries, as if one tract, and pleaded not guilty, as to said 188 acres.

Counsel for defendant in error insist that the bill of exceptions does not incorporate the documentary evidence. It is what is commonly called a skeleton bill of exceptions, and it identifies grants and deeds, which were read as evidence, by reference to their dates, the names of the grantors and the grantees, and sometimes, also, by stating the number of acres granted. Such data are then followed by a parenthetical clause directing the clerk to copy the paper into the record at that place. That is sufficient description of the paper read to enable any one to identify it with reasonable certainty. That is all the law requires. It clearly falls within the rule laid down in Tracy's Adm'r v. Carver Coal Co., 57 W.Va. 587, 50 S.E. 825, and Dudley v. Barrett, 58 W.Va. 235, 52 S.E. 100. It is no objection that the documents referred to happen not to be copied into the bill of exceptions at the points designated. It is enough if they appear anywhere in the record, and are sufficiently described to be identified with reasonable certainty. Orderly arrangement, of course, is desirable, and should be followed by the clerk in making up the record, but the want of it does not necessarily vitiate the bill of exceptions.

Plaintiff claims to derive title from the commonwealth of Virginia, by deeds from Alfred Beckley, commissioner of delinquent and forfeited lands, one to Jacob Pettry, for what is known as the Marsh fork parcel of land, and the other to John F. Clay and Richard Scott, for the Clear fork tract, dated, respectively, 28th of January, 1842, and 2d of July, 1841, and by subsequent, intermediate conveyances.

The court permitted plaintiff to read a number of deeds as evidence, in its chain of title, over defendant's objection, and later, after all its evidence had been introduced, on motion of defendant, excluded a number of them, including the deeds from the commissioner of forfeited and delinquent lands. Why these deeds were excluded does not appear. It may have been because there was no evidence that the commissioner was authorized by decree of the court to make conveyance. But that is no reason for their rejection, because the commissioner of forfeited and delinquent lands was directly empowered by statute then in force to make deed to the purchaser upon full payment of the purchase money. Section 9, c. 8, of an act of the General Assembly, passed March 15, 1838. Or they may have been excluded because the court regarded the report of the commissioner relating to the forfeiture as indispensable to prove title in the state and jurisdiction in the court. Those reports were shown to be lost, and there was no proof of their contents. But that would not justify the exclusion of the deeds in view of the recitals in the decrees made in the cause. The decrees recite that the land was forfeited in the name of Rutter and Etting, and they also authorize the commissioner to sell. Such recitals are prima facie evidence of title in the state by forfeiture, and, title being proven thus to be in the state, there could be no question of jurisdiction in the court. Feder v. Hager, 71 S.E. 107. There was no evidence to rebut this prima facie proof that the state had title.

Again the deeds may have been rejected because of the following clause in the habendum to the deeds, to wit: "Subject, however, to the rights of occupant claimants according to the provisions of the several acts of the assembly relating thereto." The court may have taken the view that that clause operated to make the grant an inclusive one, excepting parcels of lands included within the exterior boundaries, and, there being no proof of location of the parts excepted, that it fell within the rule declared in Stockton v. Morris, 39 W.Va. 432, 19 S.E. 531, and rendered uncertain the description of plaintiff's land. But we do not interpret that clause to be an exception from the operation of the grant of any part of the land described. The deed does not mention any particular claimants, nor otherwise describe any part of the land to which the language might apply. There is a wide difference in the meaning of the language above quoted and the language used in the grant involved in Stockton v. Morris, and there construed to be an exception of certain lands from the operation of the grant. In that case the grant declared that the survey upon which it was founded included "nine thousand and sixty-five acres, the property of sundry persons," and then it proceeded to name the various claimants, and to give the location of the several parcels of land claimed by them, and concluded as follows: "And this grant shall be no bar in either law or equity, to the confirmation of titles to the same, as before mentioned and reserved, with its appurtenances." That is an express reservation of title in the commonwealth, with the right given to the various claimants, to perfect their respective claims by obtaining grants from the commonwealth. In the present case it does not even appear by the commissioner's deed that there were, in fact, any occupant claimants, nor that the state meant to reserve title to any part of the land included within the bounds of the grant. It was a grant of all the title then in the state, to be held by the grantee, subject to the rights of occupant claimants, if any such there were, a fact apparently unknown to the commissioner so far as it appears from anything contained in the...