Sulphur Mines Co v. Heirs

• Decision Date: 25 June 1896
• Citation: 25 S.E. 232,93 Va. 293
• Parties: SULPHUR MINES CO. v. THOMPSON'S HEIRS.
• Court: Virginia Supreme Court

93 Va. 293

25 S.E. 232

SULPHUR MINES CO.

v.THOMPSON'S HEIRS.

Supreme Court of Appeals of Virginia.

June 25, 1896.

Ejectment—Evidence—Parties—Title to Support— Description in Deed—Sufficiency— Extrinsic Evidence—Appeal—Objections not Raised Below—Trust Deed—Power Coupled with Interest—Revocation—Death of Grantor—Sale—Validity—Conditions Precedent —Burden of Proof—Recitals in Deed—Adverse Possession—Color of Title—Private Maps and Surveys—Claim of Right—Harmless Error.

1. In ejectment, where the identity of the land was in dispute, extracts from the land books of a district other than that in which the land in suit was located, showing that a tract containing the same number of acres, and lying at the same distance from the courthouse, and in the same direction, was listed from 1832 to 1874 to "George E. Pottie's Estate, " of which plaintiffs were claimants, and from that time to the beginning of the suit to "George E. Pettus, " were admissible, together with tax tickets showing that plaintiffs had during this entire period paid the taxes on the land so listed.

2. A statement in the land books, entered since the beginning of the controversy, that "it is believed this is the George E. Pottie land" (referring to the land then listed to "George E. Pettus"), was a mere expression of opinion, and not admissible.

3. The overruling of a general objection to evidence cannot be assigned as error for the first time on appeal, though a portion of such evidence was inadmissible.

4. When land is described in a deed as adjoining the lands of certain persons named, parol evidence is admissible to show the location of the adjoining lands, in order to identify that conveyed.

5. A description of the land conveyed, as a tract lying in a certain county, "on the north-fork of the C. river, being a part of the land I purchased from M., * * * joining the lands of" persons named "and my own, * * * containing, by estimation, two hundred and thirty acres, be the same more or less, " etc., is sufficient, if the property intended to be conveyed can be identified with the aid of extrinsic evidence.

C. On the death of an executor who had acquired the legal title to land at a trustee's sale, his heirs were the proper parties to bring ejectment, whether the property was purchased by their ancestor in his own right, or for the benefit of his testator's estate, and to save the debt secured by the trust.

7. When land is purchased by an executor at a trustee's sale, for the benefit of the estate, and to save the debt secured by the trust, it will be treated in equity as personalty; but in a court of law it is real estate.

8. Where plaintiffs in ejectment traced their title back to the year 17G5, and showed that those under whom they claimed held possession of the land for 45 years thereafter, under color of title, and that the records prior to that year were destroyed, the jury were warranted in presuming an original grant from the commonwealth.

9. The power of sale conferred on the trustee in a deed of trust, or his personal representative in case the former dies before exercising such power, is not revoked by the death of the grantor.

10. The fact that the power of sale in a deed of trust, and the estate and interest coupled therewith, are subsequently separated, the power passing by the express terms of the trust to the personal representative of the trustee, and the estate itself descending to his heirs, will not revoke such power.

11. A deed by a trustee under a power of sale in a deed of trust conveys an absolute estate in a court of law, whether the conditions of the trust deed have been complied with or not.

12. Where a deed of trust conferred power of sale on the personal representative of the trustee in case the latter died before exercising it, such representative being clothed with a naked power, cannot convey a good title unless the conditions of the trust deed authorizing the sale have teen complied with.

13. The burden is on a purchaser from the personal representative of the trustee in a deed of trust to show that the conditions made a prerequisite to the exercise of the power of sale have been complied with.

14. Where power of sale is conferred by a deed of trust on the personal representative of the trustee in case the latter dies before exercising it, mere recitals in the deed executed by the representative are not prima facie evidence that the conditions prerequisite to a valid exercise of the power of sale have been performed, no actual possession by the purchaser under such deed being shown.

15. In ejectment, extrinsic evidence is not admissible to show that land not embraced in a deed was intended to be conveyed thereby.

16. A private survey and map, never recorded, and not referred to or made a part of the deed under which a party claims, cannot be considered color of title, though admissible to show the character of his claim of right.

17. Adverse possession for the statutory period under mere claim of right unlike that under color of title, is limited to such portion of the tract as was actually occupied, cultivated, and inclosed by the claimant

18. A refusal to instruct that adverse possession of a part of the land in suit for the statutory period, under color of title, was possession of the whole, is harmless error, where the jury find as a fact that claimant was not in adverse possession of any portion of the tract for the requisite time.

19. Where there are conflicting titles, the junior claimant can gain no possession of the land in controversy as against the senior claimant without actual occupancy of some portion thereof, though the possession of the senior claimant be constructive only.

Error from circuit court, Louisa county; D. A. Grimsley, Judge.

Ejectment by the heirs of John Thompson, deceased, against the Sulphur Mines Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Frank V. Wilson, Christian & Christian, and Leake & Carter, for plaintiff in error.

F.W. Sims and John Junter, Jr., for defendants in error.

BUCHANAN, J. Upon the trial of this cause, which is an action of ejectment, the court permitted the plaintiffs, over the objection of the defendant, to introduce in evidence extracts from the land books of Louisa county, showing that a tract of land containing the same number of acres, and lying the same distance from the courthouse, and in the same direction, as the land in controversy, was charged on the land books for the purposes of taxation. From the year 1832 to the year 1873, inclusive, the land was charged in the name of "George Pottle's Estate, " and from the year 1874 to the institution of this action it was charged to "George Pettus." They were also allowed to introduce in evidence tax tickets showing the payment of taxes on the land so listed upon the land books.

One objection to this evidence was that the land was charged upon the land books of a different district from that in which the land in controversy was located, and, as one of the questions in the case was the identity of the land sued for, the evidence tended to mislead the jury. The evidence was offered to show that the claimants of George Pottie's estate had during that period made claim to the land, and paid taxes thereon. This action was brought for their benefit, and they had the right to show that during that period they were asserting their claim to, and paying taxes on, the land in controversy.

The question whether the tract of land sued for, and the tract to which they had asserted claim, and upon which they had been paying taxes, was the same tract, was for the jury. The fact that it was taxed in a different district from that in which the land in controversy was located was a circumstance tending to show that it was not the same land, but was not conclusive of it, and wasno sufficient reason for excluding the evidence from the jury.

Another objection made to the extracts from the land books is that they contained the following statement: "In 1871, Pottie, Geo. E., 25 acres Con. Creek, N. E. 12. Subsequently George E. Pottle's name was dropped, and the name of Geo. Pettus appeared with the same number of acres, location, bearing, and dis. from C. H. as above. It is believed that this is the Geo. E. Pottie land."

The statement was made in the land book in the year 1890, after the controversy in this case had arisen. The last sentence in it is a mere expression of an opinion, not a statement of fact, and was clearly inadmissible. If the court's attention had been called to the statement, it would, doubtless, have excluded it; but the objection made, as shown by the bill of exceptions, was to "all and each of said extracts and receipts."

This objection being general, the court properly overruled it, as the extract, except the statement complained of, was clearly admissible in evidence. The objection to exclude was too broad.

The party objecting ought to have pointed out specifically the objectionable part, so that the court might have excluded it, and allowed the residue of the extract to go to the jury. The assessor who made the statement complained of was, during the progress of the trial, examined as a witness. He explained the circumstances under which the statement was made, so that the jury had all the facts upon which he based his opinion. It is scarcely possible that his expression of opinion could have prejudiced the defendant under the circumstances; but if it did, having failed to make the proper objection in the court below, it cannot make it here now for the first time. Warren v. Warren (decided at March term, 1896, of this court) 24 S. E. 913.

The assignment of error that the description of the land intended to be conveyed by the deed from Cosby to Dear, made in the year 1785, is so vague and indefinite that no title passed by it, cannot be sustained. The deed describes the land as one "certain tract or parcel of land, situate, lying, and being in the county of Louisa, on the north fork of...