Waggoner v. Wolf
| Decision Date | 20 November 1886 |
| Citation | 28 W.Va. 820 |
| Parties | Waggoner v. Wolf Et Al. |
| Court | West Virginia Supreme Court |
Submitted September 9, 1886.
1. Where a deed made under a decree by a commissioner or other authority is offered in evidence as a connecting link of the party's chain of title to land, it is necessary to introduce with it so much of the record of the suit, in which such decree was made, as will satisfactorily show, that the persons having the legal title to the land conveyed were parties to the suit, and as will identify the land. (p. 826.)
2. Where two suits are heard together, and it appears from the orders and decrees entered therein, that the proper parties were before the court either in one or both of the suits, and it is proven, that the file of papers in one of the suits is lost, such orders and decrees may be read in evidence although it does not appear from the bill in the other suit that all such persons were parties to it. (p. 826.)
3. The fourteenth section of ch. 95 Acts of 1882 authorizing the former owner of land, the title of which has been forfeited to and remains in the State, to redeem such land at any time before sale by the commissioner of school-lands in the manner prescribed by said act, is valid and constitutional. (p 828.)
4. In an action of ejectment the plaintiff offered in evidence a deed made by a commissioner in pursuance of a decree entered in a suit brought for the specific execution of a written contract for the sale of the land so conveyed, and such portions of the record, as show the authority of the commissioner to make such deed, including the said written contract. HELD:
It is not necessary in such action of ejectment to prove the execution of such contract by the vendor of the land. (p 830.)
R. S. Blair for plaintiff in error.
R. H. Freer and P. W. Morris for defendant in error.
Ejectment brought April 29, 1885, in the circuit court of Ritchie county by Philip Waggoner against Smith J. Dailey and Mary his wife, to recover the possession of 250 acres of land lying on the waters of Long Run in said county, to which the plaintiff claims title in fee. On motion of Jacob
Wolf, the vendor of Dailey and wife he was by order of the court also made a defendant in the action. The defendants pleaded "not guilty," the case was tried by jury and a verdict found for the plaintiff upon which the court, on March 12, 1886, entered judgment for said 250 acres of land. During the trial the defendants took several bills of exceptions, and before judgment they moved the court to set aside the verdict and grant them a new trial, which motion being overruled by the court the defendants excepted and at their instance the court certified all the evidence introduced on the trial. The defendant, Wolf, obtained this writ of error.
The record shows, that on February 2, 1852, Jacob II. Smith obtained a grant from the commonwealth of Virginia for 1,990 acres of land; after the entry of this land and before the date of the grant, the said Smith made a written contract, dated October 25, 1851, by which, after reciting that P. Cox, jr., himself, T. Stinchcomb and Abel Sinnett had jointly entered said land, the said Smith bound himself, so soon as the grant therefor should be issued to him, to convey 500 acres of said land to P. Cox, jr.; by an endorsement on this contract, dated February 28, 1853, said Cox assigned the benefit thereof to Mary C. Snodgrass and Elizabeth A. Cox, and they with their husbands by another endorsement, dated October 9, 1865, assigned the one undivided half of their claim in said land to Abel Stinnett, who by a further endorsement thereon, dated June 21, 1872, assigned all of his claim and interest to E. L. Snodgrass and wife. Smith having died, two suits were brought in the circuit court of Ritchie county in the year 1873, the one by E. L. Snodgrass and Mary C., his wife, against P. Cox, jr., and others, and the other by D. R. Neal against the "heirs of Jacob Smith." These two causes were heard together, and at the April term 1873, a decree was entered therein appointing commissioners to lay off and divide the said 1,990 acres of land, of which Jacob H. Smith died seized, among the parties entitled thereto, with special directions to assign to the plaintiffs, E. L. Snodgrass and wife, one-half of the aforesaid 500 acres and the other half to Anthony Waggoner and wife. The commissioners made the partition as directed and reported the same to court; and by decree of October 20, 1873, the said report and partition
were confirmed and R. S. Blair appointed commissioner to convey to the parties the lands so assigned and confirmed to them, respectively, in severalty. In pursuance of said decree R. S. Blair, commissioner, by deed dated December 27, 1873, conveyed to Elizabeth Waggoner (formerly Cox), the wife of Anthony Waggoner, the 250 acres assigned to her and her husband as aforesaid; and the said Elizabeth Waggoner and her husband, by deed dated January 8, 1883, conveyed this 250 acres of land to Philip C. Waggoner, the plaintiff in this action. The foregoing constitutes the documentary title under which the plaintiff claims the land in controversy.
It also appears, that a tract of 1,600 acres of land, lying on the waters of Indian Creek in Ritchie county, entered on the land book in the name of Jacob Smith's estate, became delinquent for the non-payment of the taxes due thereon for the years 1865 and 1866, that the same was sold by the sheriff in July, 1867, for said taxes and purchased by the defendant, Jacob Wolf, and that by deed, dated December 27, 1869, the recorder of said county conveyed said land to Wolf as such purchaser. By a subsequent deed dated October 19, 1876, after reciting that the heirs of Jacob II. Smith, deceased, had redeemed the same, said Wolf released to said heirs all his title and right to the aforesaid land which had been conveyed to him by said tax-deed. Afterwards by deed, dated December 28, 1877, the said Smith heirs conveyed 1,290 acres of said land to said Wolf and John A. Hutchinson without warranty. E. G. Day, commissioner, by deed dated April 28, 1865, conveyed to Jacob Wolf 300 acres of land lying on Plumb Run, a branch of Indian Creek. This deed recites that said conveyance is made by virtue of a decree of the circuit court of Ritchie county made at the March term, 1865, in the cause of Jacob Wolf against Jacob H. Smith's heirs. These several deeds constitute the documentary title under which the defendants claim the land in controversy.
The defendants introduced in evidence the record of delinquent lands, from which it appeared that the 250 acres in disqute charged in the named of Elizabeth Waggoner had been returned delinquent for the years 1877 to 1880 inclusive, and had been sold by the sheriff in 1879 to the State for
the taxes of 1877 and 1878, and also in 1881 for the taxes of 1879 and 1880. By way of rebuttal the plaintiff introduced the petition of said Elizabeth Waggoner for the redemption of said land, the report of the commissioner of school-lands, and a decree entered February 27, 1885, reciting, that the said Elizabeth Waggoner had "paid to the commissioner of school-lands all the taxes and interest due on said land from the year 1877 to January 1, 1885, amounting to $174.22," and the decree then proceeds, "it is therefore ordered and decreed that the tract of 250 acres of land be released from all claims and demands whatsoever that the State of West Virginia may have had by reason of the forfeiture for the non-payment of taxes and non-entry on the land-books of Ritchie county under the said Elizabeth Waggoner, or those claiming under her, and the said land is hereby redeemed from all claims of the State," &c.
The plaintiff introduced, as a witness for him, one Thomas Hill, who testified that the land in controversy was the onehalf of the 500 acres mentioned in the written contract between Jacob H. Smith and P. Cox, Jr., dated October 25, 1851, which is a part of the 1,990 granted to said Smith; that the defendants, Dailey and wife, were in possession of said land at the time this action was commenced, and that he put them in possession in 1875 and they thereafter were in possession under him. The plaintiff also introduced W. A. Strickler, the clerk of the circuit court of Ritchie county, who testified, that he had made a thorough examination of the files of his office and was unable to find the papers in the case of D. R. Neal v. Jacob H. Smith's heirs.
The defendant, Wolf, on his own behalf, testified that he took possession of the 1,990 acre tract, of which the land in controversy is a part, in 1869, and sixty acres of said 250 acres are cleared, and continued in possession until the present time, except about two years, to-wit, from 1876 to 1878, and that during those two years he considered he held possession for the heirs of Jacob H. Smith, deceased; and that the defendants, Dailey, were his vendees. But upon being shown the plat filed in the suit of E. L. Snodgrass and wife v. P. Cox and others, the witness stated, that the 300 acres conveyed to him by E. G. Day, commissioner, covered no part
of the land in controversy. The foregoing embraces the substance of all the material evidence introduced by either party on the trial of this action.
1. The first assignment of error is, that the Court erred in permitting the plaintiff to read to the jury, against the objection of the defendants, the bill and decrees in the suit of E. L. Snodyrass and wife v. P. Cox Jr., and others. The bill produced does not make the heirs of Jacob H. Smith parties; but the decrees entered in the cause show that this cause and that of D. R. Neal v. The Heirs of Jacob H. Smith were heard together. The file of papers in the latter...
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