Smith v. Stanley

• Decision Date: 09 September 1912
• Citation: 114 Va. 117,75 S.E. 742
• Parties: SMITH . v. STANLEY.
• Court: Virginia Supreme Court

75 S.E. 742

(114 Va. 117)

SMITH .

v.STANLEY.

Supreme Court of Appeals of Virginia.

Sept. 9, 1912.

1. Appeal and Error (§ 171^*)—Questions Reviewable — Questions Not Raised in Trial Court.

Where a trial in ejectment proceeded on the theory that it was a case of common source of title, and defendant, in a requested instruction, conceded that if plaintiff traced his title back to a grantor and showed a present right of possession he established a prima facie case, defendant, on plaintiffs writ of error to review a judgment of dismissal, could not raise the question that the parties did not derive title from a common source.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1069, 1161-1165; Dec. Dig. § 171.*]

2. Evidence (§ 472*)—Opinion Evidence-Question for Jury.

Where, in ejectment involving the location of a disputed boundary, a surveyor of the lands claimed by plaintiff, who had made a plat thereof which was in evidence, could not testify, after stating how he had located a part of the disputed line, if there was any other rule of surveying in locating a line than that adopted by him. since the question wheth er the line was properly located was for the jury.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dec. Dig. § 472.*]

3. Witnesses (§ 269*)— Cross-Examination —Extent.

A party cross-examining a witness as to matters other than those stated in the examination in chief should make the witness his own witness, calling him as such in the progress of the cause.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. § 269.*]

4. Trial (§ 84*) — Evidence—Objections-Sufficiency.

A general objection to a question asked a witness on cross-examination is not sufficient to raise the objection that the question calls for matters not stated in the examination in chief; but, where the objection is based on that fact, it should specifically so state.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 211-218, 220-222; Dec. Dig. § 84.*]

5. Witnesses (§ 226*)—Appeal and Error (§ 971*) — Examination of Witnesses — Discretion of Court.

The manner of examining witnesses is largely in the discretion of the trial court, and its action will not be disturbed in the absence of an abuse of discretion.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 792-797; Dec. Dig. § 226;* Appeal and Error, Cent. Dig. §§ 3852-3S57; Dec. Dig. § 971.*]

6. Evidence (§ 274*)—Declarations as to Rights in Real Estate—Admissibility.

A statement of what a person had said as to where a boundary line was located is not admissible in a controversy between strangers to the title, in the absence of anything to show that the person was a surveyor or chain carrier at the making of the original survey, or that he was the owner of the land or of any adjoining land calling for the same boundary, or that he had been engaged as a processioner of the land, or that his situation was such as to render it his duty or interest to make diligent inquiry and obtain information as to the facts, or that he claimed any title.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1121-1134; Dec. Dig. § 274.*]

7. Evidence (§ 519*)—Opinion Evidence-Expert Testimony.

Where, in ejectment involving the location of a disputed boundary, there was evidence that a former owner had said that when he had his claim surveyed he did not survey all of it, but only had the heads of the bottoms run out, as he did not wish to pay taxes on more land than he could farm, a witness, testifying that the land was hilly and rocky, could not testify as to whether it was such land as a man running out the heads of bottoms for a farm, who did not want to pay taxes on more land than he could farm, would include in his survey, since the matter was not the subject of expert testimony.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2328; Dec. Dig. § 519.*]

8. Evidence (§ 274*)—Title to Land—Declarations.

In ejectment involving the location of a. disputed boundary line, a witness was properly permitted to testify as to an admission by a former owner, through whom a party claimed, to the effect that the former owner did not claim the lines as claimed by such party.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1121-1134; Dec. Dig. § 274.*]

9. Evidence (§ 474 1/2^2-*)—Opinion Evidence —Expert Testimony.

The court in ejectment may properly refuse to permit a witness to give his opinion as to whether a former owner, under whom a party claimed, would or would not have sold land in dispute.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 474 1/2.*]

10. Boundaries (§ 35*)—Evidence—Admissibility.

In ejectment involving the location of a disputed boundary, evidence that a prior owner, under whom a party claimed, had exercised acts of ownership to a line with the knowledge of and without objection from a former owner, under whom the adverse party claimed, was competent to show that both the former owners regarded the line between them as a correct line and as showing adversary possession of the parties and those claiming under them.

[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 153-159, 163, 165, 177-183; Dec. Dig. § 35.*]

11. Appeal and Error (§ 1048*)—Examination—Leading Questions.

Ordinarily, the permitting of a leading question asked a witness is not ground for reversal, especially where the witness has stated the facts to which the leading question relates.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.*]

12. Evidence (§ 230*) — Admissions—Question for Jury.

In ejectment involving the location of a disputed boundary line, a party may prove the admission of a former owner, under whom the adverse party claimed, as to the location of the line, as against the objection that the admission of the former owner was made under a mistake, since the question of mistake was for the jury and not for the court.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 835-851; Dec. Dig. § 230.*]

13. Boundaries (§ 36*) — Evidence—Admissibility.

Where, in ejectment involving the location of a disputed boundary, there was evidence that a former owner, under whom a party claimed, had recognized the southern boundary line of his land as correctly described in a deed, and that such line had been treated by the former owner as the true dividing line, the deed was properly received in evidence.

[Ed. Note.—For other cases, see Boundaries, Cent. Dig. §§ 160-162, 164, 166-176; Dec. Dig. § 36.*]

14. Evidence (§ 370*)—Indorsements on Deeds—Admissibility.

Where an indorsement on a deed was signed by the grantor by his mark and was witnessed by a subscribing witness, who was dead, and three persons testified to the handwriting of such subscribing witness and stated that they were familiar with his handwriting, and that the name of the subscribing witness was in his own handwriting, and two of them thought that the name of the grantor and the words "his mark" were also in the handwriting of the subscribing witness, there was sufficient proof of the execution of the indorsement to authorize its admission in evidence.

[Ed. Note.—For other cases, see Evidence. Cent. Dig. §§ 1559-1579, 1592; Dec. Dig. § 370.*]

15. Evidence (§ 357*)—Instruments Admissible in Evidence—Letters.

Where letters were not written by or to a party nor by or to any one under whom he claimed in ejectment, the letters were properly excluded when offered by the adverse party, and their contents, if relied on by the adverse party, must be proved orally or by deposition.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1492-1499; Dec. Dig. § 357.*]

16. Trial (§ 260*) — Instructions — Construction.

Where the instructions, when considered as a whole, as they must be, fairly submitted the case, the refusal to give other instructions embodying correct propositions of the law applicable to the facts was not erroneous.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 651-059; Dec. Dig. § 260.*]

17. Trial (§ 314*)—Coercing Verdict—Instructions.

Where the third jury, after two mistrials because of inability of the jurors to agree, were given the case on Saturday, and, on being unable to agree, they were adjourned over until Monday, the action of the court in charging the jury, before they retired on Monday to consider the verdict, that it was their duty to agree if they could, and that a juror should not hold out against other jurors on controverted questions unless convinced that he was right, but the jurors should make concessions and try to agree if they could do so without violating their oaths or consciences, was not objectionable as coercing a verdict.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 747, 748; Dec. Dig. § 314.*]

18. Trial (§ 312*)—Instructions.

Where, in ejectment involving the location of a disputed boundary, the jury returned to the courtroom, and one of them asked the court "what possession would be sufficient for the jury to believe or find that the defendant was entitled to the land, " the statement by the court that if a man lived on his land or any part thereof and claimed to the extent of his boundary, and no part of it was in the possession of anyone else, his possession extended to the boundaries called for in his deed, and if there was an express agreement between former owners, under whom the parties claimed, and the parties exercised acts of ownership up to the agreed line, it was sufficient to establish the line, was in reply to the juror's question and correctly stated the law.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 744, 745; Dec. Dig. § 312.*]

Error to Circuit Court, Dickenson County.

Ejectment by M. T. Smith against H. E. Stanley. There was a judgment of dismissal, and plaintiff brings error. Affirmed.

Skeen & Skeen and Sutherland & Sutherland, for plaintiff in error.

W. H. Rouse and Vicars & Peery, for defendant in error.

BUCHANAN,...