Stewart et at. v. Parr et al.

• Decision Date: 12 May 1914
• Docket Number: No. 1991.,1991.
• Citation: 74 W.Va. 327
• Parties: Stewart et at. v. Parr et al.
• Court: West Virginia Supreme Court

74 W.Va. 327

Stewart et at.

v.Parr et al.

No. 1991.

Supreme Court of Appeals of West Virginia.

Submitted February 17, 1914.

Decided May 12, 1914.

1. Infants Actions Against-Guardian Ad Litem.

Where infants are defendants in ejectment, as properly they may be, the court should, as in this case it did, on plaintiff's motion, appoint a guardian ad litem, by whom they may appear and defend. But such appointee may, but need not necessarily, be the legal guardian. Nor is it essential he should be named as defendant therein. (p. 328).

2. Trial Instructions Error Cure by Other Instructions.

An instruction, based on, but inadequately stating, correct legal principles, will not be deemed prejudicial, if, when read with others, it is apparent the jury was not misled thereby. (p. 329).

3. Boundaries Instructions.

An instruction, by which the jury was informed that, "in ascertaining the true boundaries of a tract of land described in a grant or deed, course and distance yield to marked trees and other permanent monuments identifying corners and lines", while not universally true, is nevertheless appropriate where the identity of some of the corners and monuments is admitted or clearly established by proof, though the identity and location of other lines and monuments is in fact in issue, as to which the evidence is voluminous and conflicting, (p. 332).

4. Appeal and Error Beview-Conflicting Evidence.

Where the issues properly submitted to a jury are solely questions of fact, to be determined from competent though conflicting evidence, its verdict will not be disturbed, unless the evidence is palpably insufficient to sustain it, (p. 334).

Error to Circuit Court, Doddridge County.

Action by Sarah E. Stewart and others against C. S. Parr and others. Judgment for plaintiffs, and defendants bring tiffs in error.

Affirmed.

J. Ramsey, G. W. Farr and Geo. M. HoffJieimer, 'for plaintiffs in error.

Jackson V. Blair, for defendants in error.

Lynch, Judge:

Plaintiffs recovered, in ejectment, the verdict and judgment of which defendants now complain. The facts sufficiently appear in the discussion of the specific assignments of error, which involve rejection of special pleas, certain rulings on evidence and instructions, and refusal to grant a new trial.

The special pleas tendered by defendants aver the infancy of defendants Cleveland and Grace Snider, and the nonjoinder of C. S. Parr as their guardian. These the court refused, and to its ruling defendants excepted on the record. Whether the pleas thus tendered and rejected should have been made parts of the record by bill of exceptions, we need not determine. The only issue thus sought to be raised was based on the theory that plaintiffs should have named as defendant the guardian and not the infants represented by him, or, if not him alone, then him and the infants jointly.

Because § 5, ch. 90, Code 1913, requires the occupant to be named as defendant in ejectment, and as under § 7, ch. 82, the guardian holds possession for his wards, it argued he is therefore the real occupant. But, by the first section cited, any person exercising acts of ownership over or claiming title to or interest in the land at the commencement of the action, whether then occupying it or not, "may also be named a defendant in the declaration". As the declaration avers defendants entered into and unlawfully withhold from plaintiffs possession of the premises, we are unable to perceive in what respect defendants are prejudiced by the court's refusal to permit the filing of the special pleas, even if otherwise proper.

Infants may be sued in ejectment, as well as adults, whether in possession or not, if they exercise acts of ownership over the land or claim title thereto or an interest therein. However, if they are thus sued, whether jointly with others or by themselves alone, it is incumbent upon the plaintiff to move at the proper time the appointment of a guardian ad litem, by whom they may appear, plead and defend. Campbell v. Hughes, 12 W. Va. 183; Cole v. Pennell, 2 Eand. 174; Alexander v. Davis, 42 W. Va. 465. With this requirement plaintiffs promptly and fully complied. Nor was it essential that the legal guardian should be appointed as the ad litem guardian. So that in neither ruling did the court err. Infants are as much the wards of the court, and entitled to the same degree of care, in actions of ejectment, as in other proceedings touching their property or property rights.

Defendants complain of the admission, over their objection, of certain parts of the testimony of Martin, the surveyor, T. J. Snider, C. S. Parr and R. T. Lowndes, and of the introduction of the Sherwood plat. But, as the rulings thereon were not brought to the attention of this court by bills of exception, no duty devolves on us to consider the propriety thereof, under the holdings in Ralstead v. Horton, 38 W. Va. 727; Gregory v. Railroad Co., 37 W. Va. 606; State v. Henaghan, 73 "W. Va. 706, 81 S. E. 539.

Of the bills of exception, the first makes the evidence as a whole part of the record, the second the instructions, the third and last the overruling of the motion for a new trial.

Considering the instructions complained of by defendants, we find that by number one "the court instructs the jury that, in ascertaining the boundaries of a tract of land described in a grant or deed, course and distance yield to marked trees and other permanent monuments identifying corners and lines". While admitting the correctness of the proposition announced when fully warranted by the facts proved, defendants urge lack of applicability to the facts of this case. They claim the rule thereby asserted is not universal, absolute and inexorable, and that it was therefore error to give the instruction, because even the identity of the monuments was uncertain and contested.

Of course, there is no rule of identification universally applicable to the facts of all controversies affecting the subject matter in litigation in any particular form of action. This difficulty appears in Teass v. St. Albans, 38 W. Va. 1, wherein "some of the rules resorted to" in the location of lands are said to be "(1) natural boundaries; (2) artificial marks; (3) adjacent boundaries; (4) course and distance course controlling distance, or distance course, according to the circumstances. Neither rule, however, occupies an inflexible position; for when it is plain there is a mistake, an inferior means of location may control a higher". There- fore, whether the instruction was warranted depends on the facts upon which it was predicated.

Both parties derive title through Franklin Maxwell. He was the common source. That is admitted. In 1867 he acquired from T. W. McKinley 500 acres of land, in the deed bounded and described as "beginning at a large stone with a dogwood and black oak pointers, thence N 45 E 320 poles to a stake standing S 80 W 25 feet from a large poplar marked as a pointer; thence S 45 E 250 poles; thence S 45 W 320 poles; thence N 45 W 250 poles to the beginning".

In 1875 Maxwell conveyed to R. T. Lowndes 538 acres adjoining the McKinley tract on the south and west. The true location of two calls in the Lowndes deed determines the controversy, namely, from a chestnut "S 45 E 28 poles to a rock, black oak and dogwood, McKinley corner, thence with a line of same N 45 E 197 poles to a small beech". Out of the 538 acres Lowndes in 1898 conveyed to E. J. Stewart 193 acres, adjoining the McKinley 500 acres on the south and west, the description of the two disputed lines being the same in the deed to Lowndes and his deed to Stewart. The deed to Stewart was made pursuant to a title bond dated in 1875, the contents of which do not appear.

After his deed to Lowndes, Franklin Maxwell, in 1880, by an agreement not in the record, sold to T. J. Snider 110 acres adjoining the 193 acres on the south and east. Maxwell having died, his widow and heirs executed the conveyance to Snider in 1893, and therein gave the two disputed calls as S 50 W to "a black oak, S 45 W 28 poles to a chestnut"; and Snider, in 1897, by the same calls, conveyed the same tract to Parr.

Aside from the question of adverse possession, a question solely for the jury because as to it the evidence is conflicting, the true location of the southwest McKinley corner at the rock called for in the deeds to Lowndes and Stewart is decisive of the present controversy. For all the parties agree and rely upon the existence and established location of both the chestnut and the beech. But defendants attempt to establish the McKinley corner at a point 15 poles west from the large rock which plaintiffs insist is the corner called for in their chain of title. The evidence as to the true location of the two dis- puted lines, from the chestnut to the McKinley corner and thence to the beech, is voluminous, and in part contradictory.

Pursuant to order of survey, Martin ran the exterior bounds of the McKinley tract. He located its corners,...