Toppins v. Oshel

• Decision Date: 18 October 1955
• Docket Number: No. 10729,10729
• Citation: 89 S.E.2d 359,141 W.Va. 152
• Parties: Dona TOPPINS and Frank Toppins, v. Paul OSHEL, Katherine E. Oshel and Ralph Copley.
• Court: West Virginia Supreme Court

Page 359

89 S.E.2d 359

141 W.Va. 152

Dona TOPPINS and Frank Toppins, v. Paul OSHEL, Katherine E. Oshel and Ralph Copley.

No. 10729.

Supreme Court of Appeals of West Virginia.

Argued Sept. 14, 1955.

Decided Oct. 18, 1955.

Syllabus by the Court.

1. A declaration in an action of ejectment which fails to specify the estate claimed by the plaintiff in the premises is insufficient on demurrer.

2. A defendant in an action of ejectment may file a disclaimer as to land to which he makes no claim and in that manner disclaim any interest in such land.

3. As a general rule the plaintiff, to recover in an action of ejectment, must trace an unbroken claim of title to the state or establish title by adverse possession.

4. An exception to the general rule and a well settled principle in the law of ejectment is that when both parties to the action claim title from a common source each party is estopped to deny the validity of the title derived from the common source and that the party having the better title so deraigned must prevail.

5. When both parties assert title from a common source the plaintiff in an action of ejectment is not required to prove his title beyond the common source or to trace his title to the state.

6. The rule that the plaintiff in an action of ejectment is not required to trace his title beyond the common source is based upon estoppel and the defendant is not permitted to assume the inconsistent position of claiming both under and against the same title. The rule applies only when both parties to an action of ejectment claim title to the same property. It does not apply when it affirmatively appears that the real dispute between the parties involves the location of a boundary between two distinct tracts of land, one of which the common grantor derived from one source and conveyed to the plaintiff or his predecessor in title and the other of which the common grantor derived from another source and conveyed to the defendant or his predecessor in title.

7. The firmly established general rule in ejectment is that the plaintiff must recover upon the strength of his own title and not upon the weakness of the title of the defendant.

8. The opinion of a witness as to value or quantity is admissible in evidence if he has some peculiar qualification and has more knowledge of the subject than jurors are ordinarily supposed to possess.

9. Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.

10. The verdict of a jury in an action of ejectment which finds that the plaintiff is entitled to recover the land in controversy but fails to comply with the statutory requirement that it shall specify the estate found in the plaintiff is fatally defective and should be set aside.

11. When a verdict of a jury is without sufficient evidence to support it, or is plainly against the decided weight and preponderance of conflicting evidence, it will, on proper motion, be set aside by the court.

12. A verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover should be set aside by the trial court.

George S. Wallace, Jr., Huntington, for plaintiffs in error.

No appearance for defendants in error.

HAYMOND, Judge.

This is an action of ejectment instituted in the Circuit Court of Wayne County in November, 1950. The plaintiffs, Dona Toppins and Frank Toppins, seek to recover from the defendants, Paul Oshel, Katherine E. Oshel and Ralph Copley, the possession of a tract of land containing ninety acres in Grant District, Wayne County, West Virginia, and three thousand dollars for damages alleged to have been caused to the land by the defendants in cutting timber on it.

To the declaration the defendant Paul Oshel and Katherine E. Oshel filed a written demurrer and a written motion to strike specified portions of the declaration each of which the court overruled. They also filed a disclaimer of any right, title or interest in and to the land described in the declaration which upon objection by the plaintiffs the court rejected. The defendants then filed their plea of not guilty to which the plaintiffs replied generally. At the conclusion of the evidence introduced by the plaintiffs and at the conclusion of all the evidence, the defendants made separate motions to strike the evidence introduced by the plaintiffs and to direct the jury to return a verdict for the defendants. These motions the court overruled. The jury found for the plaintiffs, established a boundary between the ninety acre tract of land of the plaintiffs and an adjoining forty acre tract of land of the defendants, awarded the plaintiffs damages in the amount of $580, and returned a verdict in this form:

'We, the Jury, find for the plaintiffs, Dona Toppins and Frank Toppins, the land sued for in this action, and that the boundary between the plaintiffs and defendants is as follows:

'Beginning at a Hickory on a Ridge between John A. Queens Branch and Grasslick Branch of Hezekiahs Creek, also a corner to Monal and Lucinda Copley, and shown on Maps marked as Plaintiffs' Exhibits Nos. 1 and 2, as point 'B'; thence from said beginning point, N. 35~30' W. 10 poles to a dead chestnut; thence S. 80~ W. 14 poles to a black oak; thence S. 69~ W. 69 poles to a chestnut oak; thence N 35~30' W. 14 poles to a Hickory; thence N. 63~30' W. 8 poles to a leaning chestnut oak; Thence N. 37~ W. 16 poles to a hickory; thence S. 89~30' W. 15.6 poles to a white oak; thence N. 76~ W. 9 poles to a chestnut oak and hickory at the ridge road at Point 'A'.

'We further find that the plaintiffs have title to the surface in said land; and we, the jury, do find for the plaintiffs against the defendants $580 for timber cut and removed, and damages to the land of the plaintiffs', as sued for in the declaration.

'Geo. Sheets, Foreman.'

The court overruled the motion of the defendants to set aside the verdict and grant a new trial and, by order entered July 21, 1954, rendered judgment upon the verdict in favor of the plaintiffs against all the defendants. To that judgment this Court granted this writ of error upon the petition of the defendants.

To establish their title to the tract of ninety acres the plaintiffs introduced in evidence a deed dated December 22, 1924, from Hattie Toppins and John Toppins, her husband, to the plaintiff Frank Toppins, by the name of Franklin Toppins, which described the land by metes and bounds and contained the recital that it is the same land that was conveyed to Hattie Toppins by Ralph Pack and his wife by deed dated February 2, 1909, and a deed dated September 25, 1950, from the plaintiff Frank Toppins, by the name of Franklin Toppins, to the plaintiff Dona Toppins for the ninety acre tract. They also introduced in evidence a deed dated November 18, 1949, from Hillie Perdue, widow, Belle Osburn and Taylor Osburn, her husband, Zell Osburn and Wayne Osburn, her husband, and the plaintiffs Frank Toppins and Dona Toppins, his wife, to the defendant Paul Oshel for a tract of forty acres of land in Grant District, Wayne County, adjoining and south of the ninety acre tract, which reserved and excepted all the mineral rights and privileges subject to a right of way contained in a deed from John A. Queen to Harriet Toppins, dated April 13, 1900, and which contained the recital that the land conveyed was the same real estate that was devised to the grantors by Harriet Toppins by her will dated September 6, 1935. From these deeds it appears that the ninety acre tract and the forty acre tract were at one time held and owned by Harriet Toppins or Hattie Toppins, apparently the same person, under separate conveyances as distinct tracts of land from different grantors. By a stipulation between the parties it is agreed that the forty acre tract conveyed to the defendant Paul Oshel by the deed dated November 18, 1949, was devised to the grantors in that deed by the will of Harriet Toppins which was not introduced in evidence.

The plaintiffs, to fix the correct boundary between the ninety acre tract and the forty acre tract, offered the evidence of two surveyors, one of whom surveyed and made a map of the forty acre tract. They located the boundary between the two tracts and based their finding as to its location upon the survey, the calls in the deed to the defendant Paul Oshel, and certain monuments found by them on and near the land. The courses and the distances of the sections of the boundary between the ninety acre tract and the forty acre tract are not set forth in the deed from Harriet Toppins to Frank Toppins or in the deed from him to Dona Toppins; but the courses and the distances of the boundary between the two tracts are shown by the field notes of John A. Queen, a former owner of a tract of 146 acres of which the forty acre tract is a part. These notes were dated May 6, 1885, were recorded in the office of the clerk of the county court of Wayne County on October 7, 1885, and were admitted in evidence by agreement of the parties to this action. The two surveyors produced by the plaintiffs testified that the line as located by them is the correct boundary between the ninety acre tract and the forty acre tract and the boundary, as located by them, was found and adopted by the jury in its verdict.

The description of the forty acre tract in the deed to the defendant Paul Oshel, the field notes of John A. Queen, and the testimony introduced in behalf of the plaintiffs and the defendants show a discrepancy in the distance of one segment or line of the boundary between the ninety acre tract of the plaintiffs and the forty acre tract conveyed to the defendant Paul Oshel. The designations in the deed to the defendant Paul Oshel of the course and the distance of this segment of the boundary are S. 69 degrees W. 69 poles,...