SUMMERFIELD v. WHITE.
| Decision Date | 05 December 1903 |
| Court | West Virginia Supreme Court |
| Parties | SUMMERFIELD v. WHITE. |
Where a husband owns, in its entirety, one of two adjoining tracts of land and his wife an undivided one-eighth of the other, which she conveys to one of her co-tenants, by a deed, without warranty, in which her husband joins, reciting a description of the division line and one of its termini, different from that given in the deeds by which the husband obtained his lands, and referring to said terminus as an agreed corner; and, afterwards, by partition, another of her co-tenants obtains that portion of the land in which the wife owned a part, lying adjacent to said boundary line, and sues the husband and wife in ejectment for a small triangular piece of land the title of which depends upon the location of the division line, in the absence of title by adverse possession, the husband having conveyed his land to his wife in the mean time; the defendants are estopped by the recitals in their deed from relying upon the description of the division line contained in the deeds under which they claim, and cannot use said deeds as evidence of the location of the disputed line, if objected to by the plaintiff, (p. 31(5).
The description of the corner in controversy, contained in the deed executed by the defendants, reads as follows: "Beginning opposite Uriah White's house in the middle of Dry Fork at an agreed corner between Thomas S. White, deed, and Uriah White." Held: That as the description calls for no monument, which can be ascertained by mere inspection, and without measurement or calculation, and, opposite Uriah White's house Dry Fork is claimed to have two channels over thirteen poles distant from each other, in either of which the point may be, as determined by the evidence, the description does not import such certainty of location as to estop the defendants from introducing evidence tending to show that the corner in ques- tion is not a certain rock in one channel of Dry Fork, as claimed by the plaintiff, and the court properly overruled plaintiff's motion to strike out such evidence, (pp. 310, 317)..
As the defendants had, by their deed, recognized and admitted the title of the plaintiff, it was error to instruct the jury, on the trial of the issue above stated, that the plaintiff must show title derived from the Commonwealth of Virginia or this State, or make out a title by adverse possession under color of claim of title, (p. 820).
When the defendant in an action of ejectment sustains such relation to the plaintiff as estops him from denying the title of the latter, the general rule, that the plaintiff must recover on the strength of his own title, and make out a chain of title from the State, is inapplicable, (p. 321).
Actual, open, continuous, exclusive and hostile possession of land, for a period of ten years, under color or claim of title, confers a perfect title, upon which an action may be either defended or prosecuted, and which is not destroyed by mere abandonment of possession after such holding for such period of ten years, unless some other person has obtained title to the land, while such abandonment continued, by like possession for a like period, (p. 324).
Where the plaintiff relies upon such title, it is error to instruct the jury that such adverse possession must continue, without interruption, to the time of the institution of the action, if the evidence tends to show the completion of the required period of adverse possession long before the action was commenced, (p. 322).
A deed without a covenant of warranty estops the grantor from asserting, against the grantee, any title to the land he had or claimed, at the time of its execution, (p. 318).
A deed with covenant of general warranty estops the grantor from asserting, against the grantee, any title to the land he had or claimed, at the time of its execution, and also passes to the grantee any title to the land that the grantor may acquire afterwards, (p. 319).
Error to Circuit Court, Randolph County.
Action by Lucy J. Summeriicld against Uriah White and others. Judgment for defendants, and plaintiff brings error.
Reversed.
W. B. Maxwell and HaRIing & H'aeding, for plaintiff in error.
McGrRAW & Post, MoLLOIIAN.McCLIc & Matthews, and Beoavxt & Taleott, for defendants in error.
Poefenb auger, Judge:
Lucy J. Summerfield complains of a judgment of the circuit court of Randolph county, rendered against her as plaintiff in an action of ejectment, involving only the question of the location of a boundary line between her lands and those of the defendant, Hannah V. White, upon which depends the validity of her claim to the small triangular tract of land in controversy, containing about four acres. This disputed line was once a division line betAvcen two tracts of land, one of which was owned in its entirety by Thomas S. White, and the other by said Thomas S. White and Allen J. Currence as tenants in common. By the death of said Thomas S. White and subsequent conveyances by his heirs, in some of which said Hannah V. White and Urah H. White, her husband, joined, the former being an heir of said decedent, that portion of said first mentioned tract lying next to the disputed line became the property of the plaintiff. Briefly stated, the history of her title is as follows: Many years ago Thomas S. White placed his son, Harvey White, upon the tract of which the land now owned by the plaintiff was a part with the intention, it is said, of giving it to him but never made any conveyance. The son died first, leaving eight children of whom the plaintiff was one and the defendant, Hannah V. White, another. Prior to March 6, 1884, the father died and his heirs conveyed the tract on which the son had resided, containing about one hundred and twenty-three acres, to said eight children and their mother. By this conveyance, the plaintiff obtained one share in the tract. She then purchased the share of Madison White, her brother, and one-half of the share of Joseph, another brother. S. Lee White having obtained one share by the original conveyance, height the shares of Phoebe Kettcrman and the defendant, Hannah V. White, his [54
sisters, and one-half of the share of Joseph White. Martha Jordan and Mary Pennington sold their shares to C. S. Armentrout. By partition, after these conveyances, the plaintiff became the owner of the land next to the disputed line in its entirety. On the tract so partitioned, Harvey White had resided for a long time prior to his death, and thereafter his heirs resided upon it, until the date of the deed conveying the same to them, March 6, 1884, and immediately after the partition, which the evidence shows took place probably thirteen or fourteen years ago, the plaintiff took possession of the part allotted to her. Some of the deeds by which said land passed as aforesaid are somewhat awkwardly drawn. The one by which Madison 0. White conveyed his interest to the plaintiff bears date December 24, 1884, and the defendant, Hannah V. White, and her husband, and the other brothers and sisters of the plaintiff joined in it, and in the deed by which Hannah V. White conveyed her interest to S. Lee White, all the other brothers and sisters of S. Lee White joined. Each of these deeds conveyed an undivided one-eighth interest, in the whole tract. As above stated, the land on the opposite side of the line was originally owned by Thomas S. White and Allen J. Currence in equal undivided shares, and they conveyed it by separate deeds dated, respectively, November 2nd and 20th, 1880, to said Uriah White who subsequently conveyed it to his wife, the defendant, Hannah V. White, by deed dated January 17, 1895. The land in dispute has not been enclosed by either of the parties and the question of its actual occupation is one concerning which there is some conflict in the testimony.
The southern terminus of the disputed line is not contested. At that point a sugar and elm are called for. The location of the other end of the line is in dispute. In the deeds from Thomas S. White and Allen J Currence to Uriah White, the corner at the northern end of the line is described as "a beech and sugar on the west bank of Dry Fork" and is said to run thence south twenty degrees west 125 poles. These deeds are dated in November, 1880. In the deed from the heirs of Thomas S-White to the heirs of Harvey White, dated March 0, 1881, and the deeds dated December 10th, and December 21th, 1881, made by the heirs of Harvey White, including the defendant, Hannah V. White, as above stated, the disputed corner is described as follows: "Beginning' opposite Uriah White's house in the middle of Dry Fork at an. agreed corner between Thomas S. White, deed, and Uriah White," and the line running from the sugar and elm to said point is described in these deeds as running north 8 1-2 degrees cast 104 poles. The beech and sugar called for in the deeds to Uriah White are not found and it is contended by the defendants that the agreed corner called for by the other deeds is something over thirteen poles east of the point contended for by the plaintiff and yet in the middle of Dry Fork. At this point in its course, Dry Fork River seems to have changed its channel. At least that, is the contention of the defendant and the point they claim as the agreed corner is in what they call the old channel, on the west bank of which they claim the beech and sugar stood.
Upon the theory that the defendants are estopped by their deeds of December 10, 188-1, and December 24, 1884, from denying that the rock in Dry Fork River at the point claimed as the corner by the plaintiffs, in. what is called by the defendants the new channel plaintiffs mo...
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