Van Gunden v. Virginia Coal & Iron Co.

• Citation: 52 F. 838
• Decision Date: 11 October 1892
• Docket Number: 5.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Parties: VAN GUNDEN et al. v. VIRGINIA COAL & IRON CO.

52 F. 838

VAN GUNDEN et al. v. VIRGINIA COAL & IRON CO.

No. 5.

United States Court of Appeals, Fourth Circuit.

October 11, 1892

D. H Chamberlain, F. S. Blair, and J. J. A. Powell, for plaintiffs in error.

Richard C. Dale and J. F. Bullitt, for defendant in error.

Before BOND and GOFF, Circuit Judges, and MORRIS, District Judge.

GOFF Circuit Judge.

This is an action of ejectment brought by the plaintiffs in error against defendant in error in the circuit court of the United States for the western district of Virginia, held at Abingdon. It was tried at the fall term, 1891, the jury finding a verdict for defendant, upon which the court entered judgment. The case is now before this court on writ of error obtained by the plaintiffs, the assignments of error in the petition being 35 in number, of which 21, those from 2 to 16 inclusive, and 21, 27, 32, 33, 34, and 35 are not referred to in the briefs filed by counsel for plaintiffs in error, and will be treated by the court as abandoned. In fact, counsel in argument of the case conceded that they were not relied upon. Rule 24 of this court provides that 'the brief shall contain a specification of the errors relied upon which, in cases brought up by writ of error, shall set out separately and particularly each error asserted and intended to be urged. ' Most of the remaining errors assigned ignore the rules of the court applicable thereto. As this is a matter of great importance, we call attention to it now. The twenty-fourth rule requires that the specification shall quote the full substance of the evidence admitted or rejected, when the error alleged is to the admission or to the rejection of evidence. This provision of that rule has been ignored by plaintiffs in error, and the requirements of rule 11 have not been observed in the preparation of the petition for a writ of error in this case. The object of the rules is to so present the matter raised by the assignment of error that this court may understand what the question is it is called upon to decide without going beyond the assignment itself, and also that the party excepting may be confined to the objection taken at the time, which must then have been stated specifically. Hinde v. Longworth, 11 Wheat 199; Camden v. Doremus, 3 How. 515; Burton v. Driggs, 20 Wall. 125. The rule is now well established that only those matters can be assigned for error that were brought to the attention of the court below during the progress of the trial, and passed upon directly or indirectly. Springer v. U.S., 102 U.S. 586; Wood v. Weimar, 104 U.S. 786.

The assignments and the bills of exceptions are not in accordance with the rule of practice, requiring that they shall show that there was evidence applicable to the instruction given or refused. The exceptions to the giving of the instructions asked for by defendant are so general as to render them obnoxious to the rules regulating the same. Insurance Co. v. Raddin, 120 U.S. 183, 7 S.Ct. 500; Mining Co. v. Fraser, 130 U.S. 611, 9 S.Ct. 665; Block v. Darling, 140 U.S. 234, 11 S.Ct. 832. In this last-mentioned case Mr. Justice HARLAN said:

'The general exception to all and each part of the foregoing charge and instructions suggests nothing for our consideration. It was no more than a general exception to the whole charge. The court below was entitled to a distinct specification of the matter, whether of fact or of law, to which objection was made. The charge covered all the facts arising out of the counterclaim, and clearly stated the law which, in the opinion of the court, governed the case. If its attention had been specifically called at the time to any particular part of the charge that was deemed erroneous, the necessary correction could have been made. An exception 'to all and each part' of the charge gave no information whatever as to what was in the mind of the excepting party, and therefore gave no opportunity to the trial court to correct any error committed by it. Harvey v. Tyler, 2 Wall. 328, 339; Beckwith v. Bean, 98 U.S. 266, 284; Moulor v. American Ins. Co., 111 U.S. 335, 337, 4 S.Ct. 466.'

In Deitsch v. Wiggins, 15 Wall. 539, Mr. Justice STRONG said:

'Most of the assignments of error have been made in total disregard of the twenty-first rule of this court. That rule is necessary to the disposition of the business which presses upon us, and it is our intention hereafter to enforce strict compliance with its demands. If errors are not assigned in the manner required, the assignments will be treated as if not made at all, and we feel justified in passing without notice the greater number of those which are alleged to appear in this record.'

The record in this case, and the brief of counsel for plaintiffs in error, were filed so soon after the organization of and the adoption of rules by this court that it is doubtful if the attention of counsel had been called to the requirements of the regulations alluded to. For this reason it is not the intention of the court to disregard the assignments of error relied on in this case, but they will be considered in connection with the assistance afforded by the oral arguments and the aid derived from an inspection of the record. It is hoped that this reference to the necessity for a strict adherence to the mode of procedure prescribed by the rules is all that will be required to secure in the future the full co-operation of counsel in their enforcement, as it will be our duty hereafter to require due observance of their requirements. It is proper to say in this connection that they have been departed from in the preparation of a number of cases heretofore submitted to this court.

The declaration filed in this case contains two counts. Plaintiffs in the first seek to recover an undivided one-third interest in a tract of 62,000 acres of land, situated in Wise county, Va. Under the second count, they seek to recover an undivided one-third interest in a tract of about 48,000 acres of land, part of the tract first mentioned. Defendant pleaded not guilty. What is the case as it appears from the record? The state of Virginia by patent dated January 30, 1796, granted to Nathan Fields, John Johnston, and Nathaniel Taylor a certain boundary of land in that state, in Lee county, containing 62,000 acres. Since then the county of Wise has been created, and includes within its boundaries the former territory of Lee county, embracing the land so granted. The plaintiffs claim that on the 30th day of April, 1888, they purchased the interest of the heirs of Nathan Fields in the land mentioned, and that by deed of that date they became tenants in common with the vendees of the other patentees of said land and those claiming under them; that the defendant is in possession of a great part of the land, claiming the fee-simple title thereto; and that they, the plaintiffs, are entitled to recover a one-third interest thereof, being innocent purchasers of the same for value from the heirs of Nathan Fields, who died in 1820.

Defendant claims that plaintiffs have not shown by proper evidence that their grantors are the heirs of Nathan Fields, the patentee, who, defendant insists, sold and conveyed his interest in the land to his copatentee, Nathaniel Taylor, by deed dated January 1, 1796. Defendant also claims that the title to the entire tract of land was, under the provisions of certain acts of the legislature of Virginia, forfeited to the 'Literary Fund' of that state in 1816, and that, consequently, the plaintiffs took no title with the deed to them in 1888, and cannot recover in this action; also that one J. C. Olinger, under whom defendant claims, became the owner of 48,200 acres of the 62,000-acre boundary, by a purchase at a tax sale made by the sheriff of Lee county in 1834, by virtue of the provisions of an act of the legislature of Virginia passed March 10, 1832, the land having been conveyed to him by Alexander W. Mills, clerk of the county court of that county, by deed dated December 7, 1836. Defendant also insists that, if the deed made by Mills to Olinger did not pass to him an absolute title to the entire tract of 48,200 acres,-- the sale of the land having been made for delinquency in the name of Taylor's heirs,-- still, as by the deed the entire tract of land was conveyed by metes and bounds, the same was color of title thereto; and as Olinger entered into the possession of the land immediately, claiming title to the whole, and exercised acts of ownership over it until his death in 1863, and that as his heirs, and his and their vendees, have continued such possession and such acts of ownership from the death of Olinger down to the institution of this suit,--a period of all of over 50 years,-- the plaintiffs, and those under whom they claim, not having been in the actual possession of any part of the land during said time, defendant has acquired a good and perfect title to the land by adverse possession.

The first assignment of error reads as follows:

'That the court should not have admitted to the jury as evidence the copy of a copy of an alleged deed from Nathan Fields to Nathaniel Taylor, dated January 1, 1796, and registered in Carter county, Tenn., in the year 1816, and which said copy had not been recorded in Lee county, Va., where the land in controversy was originally located, nor in the county of Wise, which has since been formed and where the land now lies; because the said deed not having admitted to record in said Lee or Wise counties, according to law, such deed could not be read in evidence as a recorded deed in Virginia, and as between the parties to said suit was void. The deed aforesaid was not properly recorded in Virginia, for the reason that, in order to its proper admission to record here, it was necessary

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