Va. & T. Coal & Iron Co v. Fields

• Decision Date: 03 December 1896
• Citation: 94 Va. 102,26 S.E. 426
• Court: Virginia Supreme Court
• Parties: VIRGINIA & T. COAL & IRON CO. et al. v. FIELDS et al.

26 S.E. 426

94 Va. 102

VIRGINIA & T. COAL & IRON CO. et al.

v.FIELDS et al.

Supreme Court of Appeals of Virginia.

Dec. 3, 1896.

Ejectment—Confession of Judgment—Evidence — Records — Recitals in Deeds—Commissioner's Deed — Immaterial Informalities—Quitclaims—Motion in Arrest of Judgment.

1. It was not error to permit some of the defendants in ejectment, from whom their co-defendant had purchased, to confess judgment, where there was no evidence that they did so from a desire to embarrass their co-defendant.

2. A record of another case is admissible in ejectment, for the purpose of using exhibits contained therein, where the exhibits tend to prove title, and the record is accompanied by proof of possession under claim of title.

3. In ejectment, a deed is admissible to supply a link in plaintiff's chain of title by means of its recitals.

4. A deed made under a decree which directed a commissioner to sell land, and to make a deed to the purchaser, is admissible in ejectment, where the commissioner's report on the deed was confirmed, though the decree did not confirm the deed itself.

5. It is not error, in ejectment, to admit a deed containing immaterial interlineations, defacements, and informalities in acknowledgment.

6. A quitclaim deed, with a covenant of special warranty, conveying only such interest as the grantor had, is not admissible in ejectment to show a superior outstanding title, where the grantor had previously conveyed to plaintiff's predecessor in title.

7. A motion in arrest of judgment will not lie on the ground that defendants in ejectment were required to file the particulars of their defense, since the question should have been raised by a bill of exceptions.

Error to circuit court, Wise county.

Ejectment by William Fields and others against the Virginia & Tennessee Coal & Iron Company and others. There was a judgment for plaintiffs, and the defendant company brings error. Affirmed.

Daniel Trigg and Hobart Miller, for plaintiffs in error.

A. J. & S. D. May, Chapman & Gillespie, and Fulton & McDowell, for defendants in error.

KEITH, P. This is an action of ejectment instituted in the circuit court of Wise county by Aaron H. Nash against James Wright for the recovery of a certain tract of land, described in the declaration. Nash died, and the suit was revived in the name of his devisees, as plaintiffs. James Wright, the defendant, died, and the suit was revived in the name of his heirs at law; and at a subsequent term the Virginia & Tennessee Coal & Iron Company was, upon its petition, admitted a party, and is the active and substantial defendant. The case was tried before a jury, and a verdict and judgment rendered for the plaintiffs. During the progress of the trial a number of exceptions were taken, and the defendant applied for and obtained a writ of error from this court.

The first assignment of error is taken to the action of the court in permitting certain of the defendants from whom the Virginia & Tennessee Coal & Iron Company had purchased to confess judgment in favor of the plaintiffs. There may be cases where defendants, conspiring with the plaintiffs to defraud and injure their co-defendants, would be denied the right to confess judgment. 1 say, there may be such cases, though I know of none, and certainly this case is not one of them. There is nothing upon the record to suggest that the defendants confessing judgment were induced to do so by any improper motive, or by any desire to injure or embarrass their vendee and co-defendant, the Virginia & Tennessee Coal & Iron Company. If, recognizing the infirmity of their case, and unwilling to incur the cost and annoyance of an unavailing defense, they preferred frankly to recognize the plaintiffs' demand, they not only had the right to do so, but it was right in them to do so, and for it they are rather to be commended than criticised.

The second assignment of error is that the court erred in allowing plaintiffs to offer in evidence the record in the case of James Campbell against the unknown heirs of Richard Smith, for the purpose of using as evidence certain exhibits contained in the said record, and for no other purpose, as set out in defendant's bill of exceptions No. 1. There was no error in this. The evidence was admitted as tending to prove title, and was proper, if accompanied by proof of possession under claim or color of title. Evidence tending to prove possession is abundantly supplied by the record. But, even thoughthe court erred in admitting the record when offered by the plaintiffs, that error was cured by the defendants when they themselves, at a subsequent stage of the cause, offered the same record in evidence. If the action of the court in permitting this record to be read at the instance of the plaintiffs were now held to be erroneous, it would not affect the record as it was presented in the trial before the jury, for it would still be in evidence upon the motion of the defendant. This assignment is not well taken. Rich v. Rich, 10 Wend., at page 666; Edington v. Insurance Co., 67 N. Y., at page 192.

The third assignment of error is that the court erred in allowing the plaintiffs to offer in evidence the deed from Richard Smith to John Warder and others, for the purpose of supplying a link in the chain of their title, by means of the recital contained in said deed. In Carter v. Robinett, 33 Grat., at page 429, it will be seen that this court in that case passed upon this identical objection; and, without going into any discussion of the subject, we are content to rely upon that case as authority for overruling the objection now made.

Assignment of error No. 4 is to the action of the court in permitting the plaintiffs to offer in evidence a deed from John...