Wilson v. Braden
| Decision Date | 06 December 1904 |
| Citation | 49 S.E. 409,56 W.Va. 372 |
| Parties | WILSON v. BRADEN et al. |
| Court | West Virginia Supreme Court |
Submitted June 14, 1904
Syllabus by the Court.
1. Where a copy of a deed is offered in evidence having a certificate of acknowledgment certified by the officer as under his official seal, and the clerk, in copying, appends to such officer's official signature the word ""Seal," such word will be presumptively held to represent such officer's official seal, and such copy is properly admitted in evidence over such objection.
2. The fact that a justice taking an acknowledgment signs the certificate as justice and alderman will not vitiate such certificate, but his official designation as alderman will be regarded as surplusage.
3. Recitals of heirship and widowhood in deeds upwards of 30 years old, under which possession has been continuously held are presumptive evidence of the truth of the same, and admissible against strangers to the title claiming adversely.
4. An adverse claimant of title under the statute of limitations must show actual, notorious, visible, open, continuous, and exclusive possession for the statutory period, and his possession, to be continuous, must be such as will permit the superior claimant to sue him as a trespasser at any time during the period. Unless he makes out a prima facie case of such unbroken, continuous possession on demurrer to evidence the judgment should be against him.
5. There can be no adverse possession of wild lands as against a superior title, unless such possession is actual, exclusive visible, and notorious. A mere claim to possession accompanied by the occasional cutting of timber, the prevention of trespasses, the payment of taxes, and the assertion of title, is not sufficient, but it must be such occupation, use, or holding of the property, or change in its character, as will make such claimant, during such statutory period, continuously subject to be treated as a trespasser by the holder of the superior title constructively or actually in possession of such land. Such claim of possession does not amount to an ouster of the superior claimant.
Error from Circuit Court, Ritchie County; M. H. Willis, Judge.
Action by Henry S. Wilson against George W. Braden and others. Judgment for plaintiff, and defendants bring error. Reversed.
W. N. Miller, for plaintiffs in error.
V. B. ARCHer, Wm. Beard, S. Robinson, and H. B. Woods, for defendant in error.
Henry S. Wilson, plaintiff, obtained a writ of error from a judgment of the circuit court of Ritchie county in a suit in ejectment in favor of George Braden and Hester Deem, awarding them title to two certain tracts of land claimed by the plaintiff. The case was here before (48 W.Va. 196, 36 S.E. 367), and a judgment for the same defendants was reversed, and a new trial awarded. A new trial being had, the plaintiff having proved his title and possession thereunder, and the defendants having set up possession under color of title for more than 10 years, the plaintiff demurred to the evidence, in which the defendants joined. On a conditional verdict the court found for the defendants, and gave judgment accordingly. It is now well established that on a demurrer to the evidence the court will consider the whole evidence as though on a verdict in favor of the demurrees, and will not reverse the judgment unless the evidence is insufficient to sustain the same. Bowman v. Dewing & Sons, 50 W.Va. 446, 40 S.E. 576; Lewis v. C. & O. R. R. Co., 47 W.Va. 656, 35 S.E. 908, 81 Am.St.Rep. 816.
The first question that arises on demurrer is as to whether the plaintiff has made his title clear, either by a complete chain from the commonwealth of Virginia or by possession under color of title for the statutory period. If he has not done one or both of these, his demurrer was properly overruled. The plaintiff traces his title back to the commonwealth of Virginia through a patent issued by the Governor to William Tilton, assignee of Michael Ryan, dated August 4, 1785.
The first objection to plaintiff's title is that the copy of the deed from Charles E. Applegate and wife to Henry S. Wilson has the word "Seal" after notary's signature to the acknowledgment, instead of some words to indicate it to have been his official seal. The notary certifies the certificate to be under his "official seal." The clerk, in copying, presumably considered the word "seal" sufficient to show that the official seal was affixed. In the case of Miller v. Holt, 47 W.Va. 10, 34 S.E. 956, this very objection was considered and overruled, and rightly so, for the word "seal" must have been annexed to the notary's signature to represent his official seal, and not his private seal. The same objection is made to several of the title deeds, but it is untenable, and was properly overruled.
The objection is made to the certificate of acknowledgment to the deed of Ann Kemble, widow of Robert Kemble, because the same is signed by two officers in their double capacity of alderman and justice. Code 1819, c. 99, § 7, authorized the acknowledgment to be made before and certified by two justices of the peace. The word "alderman" can properly be regarded as surplusage, the words "justice of the peace" being in accordance with the law.
The next objection is to the two deeds in the chain conveying the title of Robert J. Kemble, deceased; one deed being from Ann Kemble, widow of Robert J. Kemble, dated 1843, and the other from Mary D. Sumner, formerly Mary D. Kemble, daughter and sole heiress of her father, Robert D. Kemble, bearing date February 17, 1853, because there was no evidence other than the deeds to show that the one was the widow and the other the sole heiress to Robert J. Kemble, deceased. If these deeds were of modern origin, it would be necessary, as against strangers, to produce such evidence. 24 Am. & En. En. Law (2d Ed.) 60; Wiley et al. v. Givens et al., 6 Grat. 277, 47 Va. Rep. Ann. 772. But such is not the law as to ancient deeds upwards of 30 years old, where possession has been continuously held thereunder. 24 Am. & En. En. Law (2d Ed.) 61; 2 Am. & En. En. Law (2d Ed.) 331; Harman v. Stearns, 95 Va. 63, 27 S.E. 601; Fulkerson v. Holmes, 117 U.S. 389, 6 S.Ct. 780, 29 L.Ed. 915; Deery v. Cray, 5 Wall. 795, 18 L.Ed. 653; Gaines v. Stiles, 14 Pet. 322, 10 L.Ed. 476; Davis v. Pearson, 6 Tex. Civ. App. 593, 26 S.W. 241; Brown v. Simpson's Heirs, 67 Tex. 225, 2 S.W. 644. This is on the theory that, if the recitals were untrue, they would have long since been disproved, and time and possession has raised the presumption of their truth, admissible even against strangers. Ann Kemble's deed, under the circumstances, could only be admitted as conveyance of her dower interest in the land; but it was good for the purpose, although it recited therein another deed, not produced, which might have conveyed to her some other interest. Deery v. Cray, 5 Wall. 795, 18 L.Ed. 653. Mary D. Summers' deed conveyed her interest in the land as the sole heir of her father, Robert J. Kemble, deceased, and thereby the Kemble link in the title is made complete.
These being the only objections to plaintiff's chain of title, and they being without foundation, we must hold it good. It is strengthened by long time, actual possession of the land thereunder beginning as far back as the year 1860. If the plaintiff had only color of title by break in his chain as to the Kemble deed, still the actual possession of the property by those under whom he claims would have ripened into good title long before the Bradens set up a claim to the land awarded to them by the judgment, and also as to the Deem tract, unless Hester Deem, or those under whom she claims, had such adverse possession as ousted from possession those under whom plaintiff claims. This brings us to the main issue in this case.
Both defendants found their title to the separate tracts claimed by them under color of title and adverse possession for the period of 10 years. The question then presented by the demurrer to evidence is as to whether the defendants, or either of them, have had such adverse, open, notorious, continuous, and exclusive possession of either of said tracts of land under color of title for the period of 10 years prior to the institution of this suit as will divest plaintiff's title and invest it in the claimant. Hall v. Webb, 21 W.Va. 324; Adkins v. Spurlock, 46 W.Va. 139, 33 S.E. 121; Bicknell v. Comstock, 113 U.S. 149, 5 S.Ct. 399, 28 L.Ed. 962; Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618.
First as to the Geo. W. Braden interlock of about 50 acres. Plaintiff's predecessors had actual possession of this interlock with a portion thereof under cultivation down until the year 1879, when Ezekiel Braden, after having surveyed this land, obtained the key of the house thereon from the tenant in charge, E. Bradley, and, as he claimed in the former trial, thereby obtained possession thereof. He afterwards tore down this house and removed it off. He did not disturb the Trembly and Daley fields, included in the interlock, which had been cleared, fenced, and cultivated by tenants under plaintiff's title. He allowed one Noland, in 1881 or 1882, to erect a cabin, and cultivate a small piece of ground in a remote corner of the interlock. After Noland moved off, he allowed one Patsy Jenkins to occupy the cabin during the year 1882. Jacob Riggs testifies that he bought 50 acres of land, including the interlock of defendant Braden, during the year 1883, built a house there on outside of the interlock, tore down the Noland cabin, which had a clearing of about three-fourths of an acre, and cleared about 3 acres of land on the interlock, and cultivated it. He remained in the house about 18 months. After that...
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