Wilson v. Caldwell

• Decision Date: 07 April 1925
• Docket Number: (No. 5199.)
• Citation: 127 S.E. 497
• Court: West Virginia Supreme Court
• Parties: WILSON et al. v. CALDWELL.

127 S.E. 497

WILSON et al.

v.CALDWELL.

(No. 5199.)

Supreme Court of Appeals of West Virginia.

April 7, 1925.

(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Action by John Wilson and others against C. M. Caldwell. Judgment for defendant, and plaintiffs bring error. Judgment reversed, verdict set aside, and new trial awarded.

Poffenbarger, Blue & Dayton and J. Howard Hundley, all of Charleston, for plaintiffs in error.

Mathews, Campbell & McClintic, of Charleston, for defendant in error.

WOODS, J. John Wilson, Fred Wilson, and Gus Wilson, plaintiffs in error, instituted their action in ejectment in the circuit court of Kanawha county, to recover possession of a tract of about 117.5 acres of land, situate and lying along the Kanawha river just below the mouth of Tyler creek, in Union district, said county, said tract having an average length of 260 rods and an average width of 72 rods. A part of this tract of land is now in possession of the defendant, C. M. Caldwell. The plaintiffs' title is derived from the commonwealth and is a part of a tract of 600 acres surveyed for Andrew Donnally, and patented to Reuben Slaughter. Out of the 600-acre patent, Reuben Slaughter conveyed a tract of 182 acres to Allen Baxter, which included plaintiffs' boundary of land and 82 acres additional lying northeast of Tyler creek adjoining the plaintiffs' land. Allen Baxter conveyed a tract of land described as 130 acres, to David Corbin. Corbin conveyed said tract to James Staten, who in turn conveyed said tract, described as 101 acres, to George Wilson. George Wilson devised this tract of land, known as the 'home place" to Alnitia Wilson, one of his sons. Alnitia Wilson, who was the father of the plaintiffs John and Fred Wilson, and grandfather of the other plaintiff, Gus Wilson, died intestate, and the lands in controversy were inherited by these plaintiffs, except an undivided interest inherited by C. C. Wilson, a brother of the plaintiff Gus Wilson, who conveyed said interest to said John and Fred Wilson.

The declaration included certain outsales adjoining each other, said outsales bordering on the Kanawha river, and forming a strip of land, aggregating 19.8 acres, between said river and line "5B, 14B, " hereinafter set out as the southeast line of the property now claimed by the plaintiffs. The land claimed by the plaintiffs is represented on the large official map, filed in evidence (Exhibit Donahoo No. 1) as a quadrilateral tract bounded on the southwest by line "1, 81A, 5B, " on the southeast by "5B, 14B, " on the northeast by "14B, 43B" and on the northwest by "43B, 43A, 40, 34A, 1." Plaintiffs claim that the last-mentioned line was the true and correct back line of the Slaughter 600-acre patent, and that their back line is coextensive with said Slaughter line. This leaves an area of 97.7 acres demanded in plaintiffs' declaration. Plaintiffs claim that their title deeds called for a cherry tree at "8A" on the map, and running thence with the George Washington patent line (through points "5B" and "81A") to an oak and ash corner at "1, " and thence to two elms on the bank of Tyler creek, at the eastern extremity of their back line, at point "43B, " at what is known as the "Deep Hole" corner. The vital points in controversy are the establishment of the aforesaid corners and the Slaughter line as located by plaintiffs, to which their evidence is directed.

Now, turning to the defense made by Caldwell. George Wilson died, leaving two sons, one Alnitia Wilson and the other John Wilson, Sr. The plaintiffs, as we have seen, claim under Alnitia Wilson, and the defendant under John Wilson, Sr. The title does not go back to a common source. John Wilson's father, namely George Wilson, and one John Wright received a patent from the commonwealth in 1837 for 167 acres of land, of which John Wright sold to John Wilson, Sr., 100 acres. The defendant, Caldwell, claims his title under John Wilson, Sr., who died intestate, leaving as his heirs his widow, Letha Wilson, and his sons, Edward and John, Jr. Edward Wilson died intestate,. leaving as his heirs his widow, Callie Wilson, and an infant daughter, Clella. In a chancery cause instituted by his heirs, the lands of John Wilson, Sr., were divided and certain deeds made. After W. G. Creighton, county surveyor, made, his report in said chancery cause, another suit was immediately instituted, in ehancery, by John Wilson, Jr., setting up the fact that the said surveyor had overlooked 34 acres, the same being the land southeast of line "1, 43B, " as shown on the official map in the instant case, and northwest of the parallel line "81A, 101, " on said map. This entire strip of land lies within the boundary claimed in plaintiffs' declaration. Plaintiffs' ownership thereof is dependent, however, upon the establishment of their northwestern line at "1, 43A." This is the essence of this litigation. This 34-acre tract was divided by said surveyor into three tracts, the one on the western end containing 17.94 acres, this being the tract claimed by the defendant in the instant case, and designated on the official map as being bounded on the northeast by line "34A to stake (91 plus 125), " on the southeast by "stake to 81A, " on the southwest by line "18A, 1" and on the northwest by "1, 34A, " this last-mentioned line being on the Slaughter line. The remainder of the 34 acres to the northeast was laid off in two lots containing 10.6 and 6.4 acres, respectively, and bounded by line "34A, 43B" on the northwest, "43B, 101" on the northeast, "101 to stake (91 plus 125)" on the southeast, and by "stake to 34B" on the southwest. The 10.6-acre tract, lying next to that claimed by defendant in this action, was sold by defendant to one Fisher, and the remaining one to John Wilson, Jr.

The defendant, Caldwell, obtained his deed from Elmer E. Stone, special commissioner, in said chancery suit, on the 23d day of April, 1923. This tract lies wholly within the boundary of the land claimed by the plaintiffs. The defendant contends that line "1, 43, " on the plat is not the true northern boundary of the plaintiffs' land, but that the true northern boundary thereof is represented by line "81A, 101, " on said plat; that the oak and ash corner, in the Washington patent line, claimed by the plaintiffs to be located at "1, " is in fact located in said line at "81A"; and that the "cherry tree corner" located at "8A" by the plaintiffs, is at low-water mark on the Kanawha river, at "79" on said plat. Plaintiffs admit the derivation of the defendant's title, as having for its source the Wilson-Wright patent of 1837, for the 167 acres of land, but contend that no part of the land embraced in said patent extends below the said Slaughter line, as defined by them.

The plea of the statute of limitations, and the plea of not guilty were interposed; and on the issues presented by these two pleas the parties went to trial, before the jury impaneled to try them. In ejectment the plea of not guilty puts in issue the right and title of the plaintiffs to all the lands sued for. N. & W. Ry. Co. v. Christian, 83 W. Va. 701. 99 S. E. 13; Wilson v. Braden, 48 W. Va. 196, 36 S. E. 367. By thus appearing and pleading to the declaration through a general denial, the defendant admitted for the purposes of the action his possession of the property. By this attitude, the defendant gave no notice of an intention to claim only a part. From the statement of the case it is apparent that the defendant's claim went only to 17 acres of 97.7 acres claimed by the plaintiffs. Yet, under the authorities, the entire trial proceeded on the theory of the defendant's claim to the whole boundary set out in plaintiffs' declaration. At the conclusion of the trial, after both parties had announced that they had rested, the following statement was read to the jury by counsel for the defendant:

"The defendant, Caldwell, disclaims and says that he has no interest in, nor does he claim any interest or title to, any of the following land: Any portion included in the plaintiffs' declaration south of the line indicated on Donahoo's map by the figures 81-A to 101; nor does he have any interest in or title to, nor does he claim any interest in, or title to, the part covered by the deed of C. M. Caldwell and wife to Al Fisher and others, as introduced in evidence in this case as one of the defendant's exhibits. Neither has he any title to, nor interest in, neither does he claim any title to, nor interest in, the 6 acres covered by the decree of John Wilson, junior, filed as an exhibit in this case, the said Wilson and Fisher tracts being the last two described, both being part of the strip in controversy, and lying north of line running from figure 81A to figure 101 on the Donahoo official map."

Under our practice, where the defendant makes no claim as to part of the land sued for but does assert ownership in the balance, if he would limit the issue and avoid error in the general verdict, he shouldby disclaimer filed in due time disclaim all the land beyond the line or lines to which he claims. N. & W. Ry. Co. v. Christian, supra. This disclaimer should be entered at the commencement rather than at the conclusion of the litigation. 19 C. J. 1121; Thompson v. Camper, 106 Va. 315, 55 S. E. 674.

Notwithstanding this general rule of practice, a defendant may at any time before verdict, by leave of the court, withdraw his plea of not guilty and put in his disclaimer to the whole or a part of the land sued for, and be relieved of the costs thereafter incurred respecting the land disclaimed. Wilson v. McCoy, 93 W. Va. 667, 117 S. E. 473; Wright v. Johnson, 108 Va. 856, 62 S. E. 948. The plea of not guilty was not withdrawn, and the defendant went to the jury in the anomalous position under this plea of laying claim...