Wade v. McDougle.
| Decision Date | 20 February 1906 |
| Citation | 59 W.Va. 113 |
| Parties | Wade v. McDougle. |
| Court | West Virginia Supreme Court |
A plaintiff in ejectment must locate his own land and recover upon his own title, and the fact that the defendant's land does not cover the land in dispute or lie where the defendant claims it to lie, or that his title is not good, is immaterial and irrelevant. (p. 115.)
A deed from a special commissioner purporting to be made under authority of a decree is admissible in evidence to give color of title for adverse possession, though such decree is not shown. (p. 116.)
Statements by a person cutting timber on land or cultivating it, that he is so doing under authority of a certain person as owner, made while so doing, are admissible when the question of possession by such owner is involved. (p. 118.)
A verdict and judgment in ejectment by which the plaintiff recovers land in fee, of their own force, vests title in him, and take title, from the defendant, if he had any. (p. 118.)
A verdict and judgment in ejectment fixing a line are final and conclusive between the parties and their privies in estate as to the location of such line. (p. 119.)
G. Same Judgment, effect of Adverse Possession.
A verdict and judgment in ejectment by which the plaintiff recovers the contested land destroy all title in the defendant at the date of the judgment. The defendant, by adverse possession beginning after judgment, may acquire title, but possession prior to the judgment cannot be considered. (p. 120.)
7. Boundaries Agreed Line Validity of Agreement.
To make valid an oral agreement to fix aline between two contiguous tracts of land there must be doubt and uncertainty as to the true place of the line, else the agreement is void, Where there is in fact, such doubt and uncertainty, such oral agreement, if at once carried into execution by actual possession, is valid without other consideration than the settlement of disputed boundary. (p. 122.)
8. Same Possession.
A mutual express agreement between adjoining owners fixing their dividing line is of no force, unless actually executed immediately by taking possession actual up to it. (p. 122.)
9. Compromise Offer Effect.
A person is not bound by an admission in an offer to compromise not accepted by the other party, (p. 123.)
10. Evidence Admissions as to Title.
Where legal title to land is vested in one his mere oral disclaimer or admission of no title cannot devest his title. It binds him not. (p. 123.)
11. Boundaries Possession Establishment of Boundary by Acquiescence,
To establish aline between adjoining owners, in absence of express agreement fixing it, by acquiescence and recognition, there must be possession actual up to it by the party claiming the benefit of the line at least for a time prescribed by the statute of limitation, with acquiescence and recognition of such line by the other party, he knowing of such claim by his adversary. (p. 124.)
12. Adverse Possession.
Mere occasional grazing cattle or cutting timber or sod on land does not constitute adverse possession under the statute of limitations. (p. 124.)
13. Same Inclosure.
Actual inclosure by fence is not indispensable for adverse possession under the statute of limitations. It is sufficient if the possession be marked or held by inclosure by fence, by cultivation, residence, clearing, or any plainly visible and notorious manifestation of sole, exclusive possession, according to the nature of the case. (p. 126.)
14. Same Color of Title Possession.
Where there is no color of title, possession, for the purpose of adverse possession, is confined to the land in actual, open, notorious, exclusive occupation by inclosure by fences, residence, clearing, cultivation or such other act, notorious and open, according to the nature of the case, telling the world of adverse possession under his own claim. (p. 128.)
Error to Circuit Court, Wood County. Action by C. A. Wade, as sheriff, against A. H. McDougle. There was judgment for plaintiff, and defendant brings error.
Reversed.
II. P. Camden, for plaintiff in error. Merrick & Smith, for defendant in error.
Daniel R. Neal brought an action in ejectment in the circuit court of Wood county against A. II. McDougle counting in W.Va.]
Wade v. MoDougle. his declaration for a tract of sixty acres. A disclaimer was made by the defendant for all of the tract except a parcel of specified boundary containing about fifteen acres. A trial resulted in a verdict and judgment for the plaintiff.
Defendant's first assignment of error is, that the plaintiff was allowed to prove a survey, made under an order of survey in the case, of the land covered by defendant's deed. The plaintiff claimed that the deed under which the defendant claimed does not include the land in contest. The plaintiff introduced a deed for the sixty acres dated 1st February, 1867, from William Logan to Daniel R. Neal, under which the plaintiff claimed, but traced no title back to the state. On the strength of paper title, the plaintiff showed no title; for to recover on paper as per se giving superior title, it must trace back to the state, unless the title of the contestants comes from a common grantor. Bonk v. Higginbotham, 54 W. Va. 137. No show to recovery by the plaintiff on paper title was made in this case. The plaintiff did not even give evidence of the boundaries of the Logan deed to show that it covers the land in controversy. If the plaintiff showed no title in himself, what matters it where the land embraced within the defendant's deed lies? In ejectment the plaintiff must, if he claims under paper title, locate his exterior boundary, so as to show that his title takes in the disputed land. Miller v. Holt, 47 W. Va. 12. What matters it whether the defendant has title or not, if the plaintiff himself has no title? He must gain on the strength of his own title, not on the weakness of the defendant's title. Lowe v. Settle, 32 W. Va. 600. Thus, it would seem that this evidence of the defendant's location would be immaterial, and introduce a matter, and call on the defendant to meet it, not pertinent to the case, and calculated to hurt his defence before the jury. It could not locate the plaintiff's land, as he had no title to locate. If it is said that to locate the defendant's deed would locate the Logan deed, as the Logan deed calls for the "Neal and Stokely line", the reply is, the Logan deed is not surveyed, and the deed to Beckwith does not call for the line.
A second assignment of error is, the admission of evidence of surveying a line between a tract owned by the city, known as the city hospital ground, and a tract of Sarah Neal. I do not see what light this could throw on the case. It could add to the intricacy and difficulty of the case and confuse the jury. It was not relevant. Neither claimed under or derived title from the owners of those tracts. Their location would not settle the location of the claims of the plaintiff or defendant. The call in a deed to which the Lauch deed referred for the Neal line was not binding on the defendant; it was res inter alios acta.
A third assignment of error is, that plaintiff gave evidence to prove that defendant's deed would not reach the disputed land, is well taken under principles stated above, that the plaintiff must show that his own right covered the land. And mere call for distance is not material when a fixed line is called for.
A fourth assignment of error is, the admission of a deed from Taylor, commissioner, to Sanders, no authority to make it being shown, and no connection being shown between the title of one Davis, whose title the deed purports to convey, and the plaintiff. As passing title it was not admissible; but the plaintiff after giving that deed in evidence, gave in evidence a deed from said Sanders to William Logan, and a deed from Logan to the plaintiff. As color of title for adverse possession, I see no objection to the deed. Mullin v. Carper, 37 W. Va. 215.
A fifth assignment of error is, the admission in evidence of a deed from Sanders to Logan. It is admissible for color of title in connection with the deed from Logan to plaintiff. It is said the descriptions in the two deeds vary. If it were plain that they relate to different land, this would be a good objection; but that seems to me to be a question of identity as a fact for the jury; that is, whether it could give any color as to the land in contest. The fact that no surveying was don eto show the location of the land described in the deed only went to make it weak as affording color of title for the land.
The sixth assignment of error is, the admission in evidence of a deed from Lauck and Logan to Logan and Leach. It is not claimed that the plaintiff claimed the land in this deed, or had any privity with it, or that it bounded on the land conveyed to him by Logan. It was in no sense in controversy. It was irrelevant, producing confusion before the jury. The argument for it is that Logan's deed to the plaintiff refers to this deed, and this deed calls for the Neal and Stokely line. What if it does? Is it used to locate that line? It cannot do so. It is a declaration by its parties that that line was there; but does their declaration or assertion bind the defendant? No surveying of its bounds proves that declaration true.
The seventh assignment of error is, in the admission in evidence of a deed from Logan and Leach to Parkersburg. What has been said under the sixth assignment here applies.
The eighth assignment of error is, the admission in evidence of a decree of partition and plat of lands of Bradford's estate, They were transactions between strangers to this suit, not involving the land in dispute. It is claimed that these papers are aclmissable, as...
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