Wilson v. Mccoy

• Decision Date: 01 May 1923
• Docket Number: (No. 4731.)
• Citation: 117 S.E. 473
• Court: West Virginia Supreme Court
• Parties: WILSON et al. v. McCOY et al.

117 S.E. 473

WILSON et al.

v.McCOY et al.

(No. 4731.)

Supreme Court of Appeals of West Virginia.

May 1, 1923.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Disclaimer.]

Error to Circuit Court, Roane County.

Suit by C. C. Wilson and others against C. G. McCoy and others. Judgment for defendants, and plaintiffs bring error. Reversed, and new trial awarded.

J. L Wolfe, W. F. Boggess. and Lewis H. Miller, all of Ripley, for plaintiffs in error.

Harper & Baker, of Spencer, for defendants in error.

MILLER, P. This is a suit in ejectment brought to settle the question of location, right and title to a tract of fifty acres known in the record as the Abner Suttle tract. The facts are substantially the same as were involved in the suit of unlawful entry and detainer between the same parties, heard here on a writ of error to the judgment in favor of defendants and reported in 86 W. Va. 103, 103 S. E. 42.

We think it quite unnecessary to restate all the facts and issues again presented in this case, so well and clearly stated by Judge Lynch in his opinion on the former hearing.

As in that case, so again in this, the one fact determinative of the whole controversy is the true location of what is called the base line between lots Nos. 9 and 10 of the Bartholomew and Antoine Terrason 20, 000 acres as surveyed by Nathan Smith, surveyor, in 1839, and afterwards sold as forfeited and delinquent land. As was said by Judge Lynch in the former case, the true location of this division or base line will concededly settle the rights of the parties. As called for in the plat of surveyor Smith and subse quent deeds for the lots and parts of said lots bounded thereby, it began at a white oak on or near a fork of Spring creek in the line of No. 1, the same being a corner to No. 9; thence with the same N. 63 1/2° W. 1200 poles to a black oak, in the most westerly line of the entire survey. The white oak called for as the beginning corner is not in dispute; it is still standing, well marked; and there is no controversy as to its identity or location.

The land claimed by plaintiffs as described in the immediate deed from Margaret J. and Cyrus A. Crislip, Thomas P. Ryan and Walter Pendleton, of March 23, 1916, is as follows:

"Beginning at the corner of the Roberts survey; thence S. 62° E. 200 poles to the corner of W. Casto and L. Jenkins; thence N. 28° E. 40 poles to a chestnut oak; thence N. 62° W. 200 poles to a sugar; S. 28° W. 40 poles to the place of beginning, containing 50 acres, more or less."

The Roberts survey called for is a tract of 400 acres, part of said lot No. 10, but lying west of the land sued for, and as described in the deed of John E. and Sarah Wine to William Roberts, of November 10, 1854, is bounded as follows:

"Beginning at a black oak, same corner to No. 9, and running with the line of No. 9 and 10 S. 62° E. 500 p. to a white oak corner to Shearman Selfknowing tree, N. 18° E. 130 p., to a hickory; thence in a parallel line with first named line thence to a stake pointing in the base line of the entire survey, thence S. 30° W. to the place of beginning."

The white oak corner to Shearman "Self-knowing tree, " described in this deed is manifestly in the base line between lots Nos. 9 and 10, and the cornet called for in plaintiffs' title papers. As observed by Judge Lynch in the former case, the surveyors for the plaintiffs located the white oak corner called for about eight rods north of the white oak stump found and identified by several witnesses for the defendants as the stump of the original timber called for; and since the trial of the unlawful detainer case and the decision here, Sharp, defendants' surveyor, as his evidence shows, has run the base line between lots Nos. 9 and 10, from the white oak to the black oak, and from the black oak as located by him back to the white oak. and found the line passing practically over the white oak stump, the Roberts corner called for; and practically on or along all the fences presumably on said line, and gives it as his opinion that the white oak stump is the original timber called for as the corner to the Roberts survey.

But the true location of this base or division line and of plaintiffs' land, a question of fact, controlled of course by the legal rules and principles applicable, was a question of fact for the jury.

The only plea interposed by the defendants, and the only one that could have been interposed under our statute, was a plea of "not guilty"; and on the issue presented by this plea the parties went to trial, before the Jury impaneled to try it.

The record shows that after the trial had been in progress for a day perhaps, the defendants C. G., A. M., Troy, Grace and Haven McCoy and Harvey Miller were permitted, over plaintiffs' objection, to file a disclaimer, whereby they undertook to disclaim any interest or ownership in any of the lands in controversy or described in the declaration which may be found to lie or be situated within the area bounded as follows:

"Beginning at a point where a white oak stump formerly stood at or near the east end of of a rail fence leading to said point from the southeast and formerly known as the Roberts corner; thence N. 28° E. 40 poles to a wire fence claimed by said Harvey Miller as the southern boundary of his lands; thence with said wire fence S. 58 degrees and 27 minutes east to the lands of Mace, formerly the Radabaugh lands, and more recently known as the Kenney lands; thence S. 28° W. 40 poles to the intersection of two fences immediately south of a small drain; thence N. 58 degrees and 27 minutes to the place of beginning."

On the filing of this disclaimer, over their objection because coming too late, the plaintiffs moved the court for a continuance on the ground of surprise, which motion the court overruled, and the case proceeded, resulting in a general verdict in favor of defendants and the judgment of the court thereon of nil capiat and for costs in favor of defendants.

The first point of error assigned and relied on by plaintiffs is the action of the trial court in permitting the defendants to interpose their disclaimer in the midst of the trial. Undoubtedly when sued in ejectment, defendant should examine his title and possession, and if he would avoid the trouble and consequences of a trial, he should promptly disclaim any and all lands to which he lays no claim or in which he has no interest, or if he has any right or interest in any part of the lands sued for, designate the part and disclaim the residue. Such seems to be the practice prescribed by the authorities. 7 Enc. Plead. & Prac. p. 343; 19 C. J. 1121; N. & W. Railway Co. v. Christian, 83 W. Va. 701, point 3 of the syllabus, 99 S. E. 13. The reason of this rule is to avoid trouble and confusion and unnecessary expense in the trial of the case, for the plea of not guilty alone puts in issue the right and title to the whole of the land sued for and imposes upon the plaintiff the burden of sustaining his right and title to the whole of the tract, and a general verdict and judgment thereon is thereafter conclusive between the parties and their privies in estate.

But the rigid rule insisted on by plaintiffs, which would deny a defendant the right to file his disclaimer after issue joined on his plea of not guilty and after trial begun and before verdict, would be unreasonable. It is not perceived how plaintiffs could be injured, if the defendants are rendered liable for all costs and damages, if any, incurred up to the time of the entering of the disclaimer. On the contrary, it seems to us they would be benefited pro tanto. A disclaimer is not a plea; it is a refusal to plead; it is a denial of right or title, although not necessarily a denial of prior possession. The plaintiff may accept the disclaimer and go on to try the question of damages, if any have been claimed by him. 6 Enc. Plead. & Prac. 724. In Fisher's Heirs v. Camp's Heirs, 26 W. Va. 576, it was held that the defendant, after his plea of not guilty, may, by leave of court, withdraw his plea and abandon his defense, and may make this effective by a simple entry on the record; and after such disclaimer no judgment for costs subsequently incurred may be given against him. For the reasons already indicated the disclaimer does not necessarily entitle the defendant to a dismissal of the action against him, for notwithstanding the disclaimer, plaintiff may be entitled to prosecute the action to judgment for possession and for actual damages, where, as in this state, damages are recoverable when claimed. Section 30, chapter 90, Code 1913 (sec. 4098); 19 C. J. 1121.

The second point of error relates to the action of the trial court on the trial, in permitting defendants to inquire of several of the witnesses whether W. F. Wilson, husband and father of some of the plaintiffs, had not in" their presence on different occasions prior to the trial pointed out to them or in their presence the white oak stump as the southwestern corner and the beech corner as the southeastern corner of the land sued for at different points than as claimed by him in his testimony given on the trial. This evidence was admitted simply for the purpose of contradicting or impeaching the evidence of Wilson, the foundation having been laid therefor on his cross-examination by defendants' counsel. The same question was presented on the trial of the unlawful detainer case, and it was decided that for the purpose of such contradiction the evidence was proper. It may be that in one or two instances the questions may have been asked before the proper foundation had been laid, but the court subsequently in its rulings limited this class of testimony to such contradiction and for no other purpose, and so told the jury in plaintiffs' instruction No. 10, objected to by defendants. This instruction told the jury they could not consider...