West Va. Pulp & Paper Co v. J. Natwick & Co, 9216.

Decision Date09 December 1941
Docket NumberNo. 9216.,9216.
CourtWest Virginia Supreme Court

21 S.E.2d 368

J. NATWICK & CO. et al.

No. 9216.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1941.

Rehearing Denied March 9, 1942.

Concurring Opinion March 10, 1942.

[21 S.E.2d 369]
Syllabus by the Court.

1. "Upon a demurrer to the evidence, all the evidence introduced at the trial should be considered by the court, and all reasonable inferences therefrom considered in favor of the demurree, and judgment rendered in his favor, unless the evidence of the demurrant In conflict with that of the demurree plainly and decidedly preponderates in favor of the demurrant on some decisive point, in which case the demurrer should be sustained and judgment rendered for the demurrant." Pt. 2, Syl., Conner v. Jarrett, 120 W.Va. 633, 200 S.E. 39.

2. Notwithstanding a demurrer to the evidence, the burden of proving title and locating land in an ejectment case rests on the plaintiff, and in sustaining this burden plaintiff must recover on the strength of his own title.

3. In an action of ejectment, involving adjoiner, a plaintiff who, during the period of the statute of limitations for land, notoriously, continuously, adversely and exclusively has held the land under color of title, including that In controversy, may recover, though there is no actual possession or occupancy of the land in controversy, and notwithstanding title to a common source or the Commonwealth or the State may not have been traced.

4. A call of a deed to the line of adjoiner in no case can make an interlock between the land conveyed thereby and the line of the adjoiner, and a dispute between conflicting claims as to true lines and corners does not of itself constitute an interlock.

5. In the ascertainment of the boundaries of land, usually monuments, natural and artificial, prevail over courses and distances, or mistaken descriptions in surveys or conveyances, or quantity of the land.

6. The location of a lost, ancient land monument in an ejectment case may be proved by reputation, and the declarations of a deceased owner of land are admissible, if they relate to a line or corner of his own land in the ascertainment of which he has an interest, and if in other respects admissible and not made post litem motam, the rule applies with equal force to declarations made by a deceased tenant, if paper title in the landlord be shown.

7. Where, in an ejectment action, one of two claimed termini of an undisputed course in a deed is marked by a corner tree, being of the kind mentioned in the call of the deed, and having annulations indicating that the marks were made about the time of the original survey upon which the title in question was based, and the other on the top of a mountain, called for in the deed, at a point twice the distance specified in the call, where no marked trees are found, though the evidence conflicts on the question whether a marked tree formerly stood there, and there is substantial evidence to the effect that, because of a transposition of monuments in the surveyor's report, the second claimed monument was on the top of the same mountain at the end of the next succeeding call if run from the corner tree, and the record discloses that if the corner tree be adopted as the true monument, the courses, distances and quantity of the land will agree perfectly with the calls of the grant, and will not so agree if the other claimed monument be adopted, then on a demurrer to the evidence by the party asserting the latter position and a conditional verdict of the jury in favor of demurree, the demurree is entitled to prevail.

FOX and LOVINS, JJ., dissenting.

Error to Circuit Court, Randolph County.

Action of ejectment by the West Virginia Pulp & Paper Company against J,

[21 S.E.2d 370]

Natwick & Company and others. Judgment for plaintiff, and defendants bring error.


E. A. Bowers and Henry Higginbotham, both of Elkins, and G. W. McCauley, of Moorefield, for plaintiffs in error.

B. M. Hoover and E. L. Maxwell, both of Elkins, for defendant in error.

RILEY, Judge.

In this action of ejectment the defendants, J. Natwick & Company, a corporation, and others prosecute error to a judgment of the Circuit Court of Randolph County, overruling their demurrer to the evidence, interposed after the introduction of all the evidence, and entering judgment on a conditional verdict for the plaintiff, West Virginia Pulp & Paper Company, a corporation.

Guiding the appraisement of this case are several well-established principles of law, applicable to every ejectment case in which the defendant demurs to the evidence. Upon such demurrer all reasonable inferences from all the evidence introduced at the trial should be considered by the court in favor of the demurree, but, if demurrant's evidence on a decisive point conflicts with that of demurree and plainly and decidedly predominates in demurrant's favor, the demurrer should be sustained and judgment rendered thereon for demurrant. Conner v. Jarrett, 120 W.Va. 633, pt. 3, Syl., 200 S.E. 39; Bluefieid Milling Co. v. Western Union Tel. Co, 104 W.Va. 150, 139 S.E. 638, 55 A.L.R. 636; Miller v. Johnson, 79 W.Va. 198, 90 S.E. 677; Barrett v. Raleigh Coal & Coke Co, 55 W. Va. 395, 47 S.E. 154; Bowman v. Dewing & Sons, 50 W.Va. 445, 40 S.E. 576; Mapel v. John, 42 W.Va. 30, 24 S.E. 608, 32 L. R.A. 800, 57 Am.St.Rep. 839. Notwithstanding a demurrer to the evidence, the burden of proving title and locating land in an ejectment case rests on the plaintiff. Conner v. Jarrett, supra, 120 W.Va. page 640, 200 S.E. 39; Rock House Fork Land Co. v. Gray, 73 W.Va. 503, 80 S.E. 821; Bowman v. Dewing & Sons, supra. In sustaining this burden of proof, a plaintiff in ejectment who relies upon title and not adverse possession must recover on the strength of his own title and not upon the weakness of that of defendant. Conner v. Jarrett, supra; Wm. James Sons Co. v. Hutchinson, 73 W.Va. 488, 80 S.E. 768, Taylor v. Russell, 65 W.Va. 632, 64 S.E. 923; Wade v. McDougle, 59 W.Va. 113, 52 S.E. 1026.

Plaintiff claims that its title to the property involved originated under a grant dated February 22, 1799, from the Commonwealth of Virginia to Bowler Cocke of two thousand acres ef land, surveyed for Simon Nathan, December 10, 1787, and referred to in later conveyances as Lot No. 12; that this tract, together with other tracts in the Nathan survey, having been returned delinquent for taxes in the name of Cocke, was conveyed to Richard W. Barton by John W. Crawford, Clerk of the County Court of Randolph County, under a tax deed dated April 30, 1853; that the Crawford deed recites that the lands had been sold for taxes, delinquent in the name of Bowler Cocke, for the years 1832 to

1839, inclusive, and purchased in October

1840, by the Sheriff in behalf of the Commonwealth for the amount of taxes and damages due on each tract; that on October 27, 1845, said lands were again offered for sale and purchased for the Commonwealth; that Richard W. Barton by his last will and testament, dated January 14, 1860, devised the land to his executors with power to sell; that after transition through a chancery suit in Randolph County, entitled "Geo. Mcintosh v. R. W. Barton's Administrator" (the record of which was omitted from the instant record by stipulation of counsel), and the death intestate of Caroline M. Barton, Richard W. Barton's wife, the title became vested in Joseph M. Barton and others, and thereafter devolved upon A. H. Winchester by two deeds, one dated December 12, 1885, from Joseph M. Barton and others, and the other dated December 13, 1886, from Claude Goff, Special Commissioner.

Plaintiff also introduced, as a part of its chain of title, a deed from George Mcintosh to Richard W. Barton, dated April 5, 1855, purporting to convey five tracts of two thousand acres each of the Nathan survey, including Lot No. 12. This deed referred to a deed from William Loyall to said Mcintosh, recorded in Randolph County in "Book '9', Page 443". The Loyall deed, dated June 13, 1826, purports to convey five tracts of two thousand acres each granted to "Bowler Cocke", but does not give any lot numbers, though it gives four lines and corners similar to the calls given in the original grant from the Common-


wealth of Virginia to Cocke, dated February 22, 1799. The record here, however, does not show any conveyance of Lot No. 12 from Cocke, but the Loyall deed recites that Cocke conveyed "said several tracts" on June 30, 1799, to John Bell; that John Bell, by deed dated October 31, 1803, conveyed said tracts to William Davis; that Davis "transmitted by devise or descent" said tracts to his daughter, Ann Whittle; that she and her husband conveyed them to the United States of America; and that the Loyall deed was made pursuant to a decree of the United States Circuit Court.

Defendants say that between the last purchase by the Commonwealth for taxes (1840) and the Crawford tax deed (1853), the Commonwealth issued its patent in the year 1847 to William Logan for a 1, 000-acre tract, covering a part of the original Nathan survey, and including a 315-acre tract under which they derived their title, and that because the Logan grant, under which they claim, antedated the Crawford deed to Barton, under which plaintiff claims, the latter to prevail must trace its title to the Commonwealth. It is strenuously contended that plaintiff has failed to do so, whether it seeks to prevail under the line of title which leads through the Crawford tax deed or under that which leads through the Loyall deed. This position is not without merit, for the reason that the line of title through Loyall, so far as the record title is concerned, does not reach back to the original grantee, Cocke, and that if reliance is had upon the chain of title running through the Crawford deed to Richard W. Barton, the Logan grant came from the Commonwealth of Virginia by grant which antedates the deed from the Commonwealth to Barton. In an action of ejectment where...

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