Yonker v. Grimm
| Decision Date | 01 June 1926 |
| Docket Number | 5603. |
| Citation | 133 S.E. 695,101 W.Va. 711 |
| Parties | YONKER et al. v. GRIMM. |
| Court | West Virginia Supreme Court |
Submitted May 19, 1926.
Syllabus by the Court.
The power of a jury over their verdict ceases on their discharge. With their assent to the verdict returned by them and received by the court, though not recorded, and the court announces their discharge and they leave the presence of the court, their functions as jurors have ended, and neither with nor without consent of the court can they amend or alter their verdict.
The verdict of a jury in an ejectment case is fatally defective which finds that the plaintiff is entitled to recover the land described in their verdict, but which fails to specify the estate found in the plaintiff, as required by the statute, even though the declaration states that the plaintiff had been possessed of the land in fee.
In such case it is beyond the power of the court to amend the verdict by inserting the estate found in the plaintiff, for such act would be an invasion of the province of the jury by substituting the court's verdict for theirs.
The parties to a deed are presumed to have in mind the actual state of the property conveyed at the time of the execution of the deed, and therefore are supposed to refer to this for a proper definition of the terms used in the descriptive words.
A deed is to be interpreted and construed as of its date, and a call in the descriptive portion thereof for the land of another as a monument, is a call for the true location of such land at the date of the deed.
Where the deed under which plaintiffs claim in an action of ejectment calls for the land of defendant, the true line of defendants' land at the time of the deed must be understood to have been intended.
The burden is on the Plaintiff to Establish such line to the satisfaction of the jury, who by their verdict must find the true location thereof.
Error to Circuit Court, Mason County.
Ejectment by R. R. Yonker and others against Alton Grimm. Judgment for plaintiff, and defendant brings error. Judgment reversed verdict set aside, and a new trial awarded.
Hogg & Hogg, of Point Pleasant, for plaintiff in error.
F. G. Musgrave and B. H. Blagg, both of Point Pleasant, for defendants in error.
The plaintiffs sued in ejectment to recover 6 1/2 acres of land. Both plaintiffs and defendant claimed from a common source. Samuel Hoffman, by deed dated March 13, 1875, conveyed, in fee, to his daughter, Caroline Rousch, 30 1/4 acres, bounded as follows:
"Beginning at a stake and corner to said Samuel Hoffman's 60 1/2-acre tract of land and also corner now to A. H. Yonker and with a line of same S. 89~>> E. 148 poles to Broad Run creek; thence up the same 39 3/4 poles to a stake corner to lot No. 2 this day conveyed to Emeliza Hoffman; thence with a line of same N. 85 W. 142 1/2 poles to a stake in the back line; and thence with the same N. 15~ W., 28 1/4 poles to the beginning, containing 30 1/4 acres more or less."
This tract descended by various mesne conveyances, in which the boundaries were set forth in each as above, until it became vested, together with other contiguous tracts, in fee, in George M. Parsons. On September 11, 1923, by deed of that date, the said Parsons conveyed a part of his holdings under his deed to the plaintiffs, R. R. and D. K. Yonker. The land so conveyed is described as follows:
"Being that part of what was formerly the Alfred Yonker farm, lying on Broad Run creek on the easterly side of the public road, bounded on the westerly side by the public road, on the northerly side by the lands of Kenneth Yonker and Robert Yonker, on the easterly side by the lands of said Yonkers and Alton Grimm, and on the south by said Alton Grimm, and estimated to contain 6 1/2 acres, more or less."
The declaration in this case described the premises in the language of the last mentioned deed.
On the same day (March 13, 1875), that Samuel Hoffman conveyed the 30 1/4 acres to his daughter, as aforesaid, he conveyed by deed another part of his land in fee to his son, Albert Hoffman. The boundaries of this tract were as follows:
"Beginning at a stake corner to lot No. 2 this day conveyed to Philip Hoffman in the back line of said Hoffman's survey; thence with a line of lot No. 2 N. 70~ W. 170 poles to a stake near the creek; thence N. 13~ E. 41 poles to a stone corner to Samson Hoffman's heirs; thence with a line of same S. 82~ E. 50 poles to a stake; thence S. 37~ E. 80 poles to a stump and locust; thence S. 66~ E. 20 poles to a rock; thence S. 83~ 37 poles and 20 links to a double maple in the back line; and thence with the same S. 15~ W. 20 poles to the beginning, containing (31 3/4) thirty-one and three-fourth acres and 31 poles, more or less."
This same tract, by a number of transfers, containing the same description of boundaries, came into possession of the defendant, Alton Grimm, by deed dated March 22, 1920.
It will be noted that the deeds under which both plaintiffs and defendant claim were made the same day. The tracts abut each other. The abutting line is described in the deed of the defendant as from "a stake near the creek; thence N. 13~ E. 41 poles to a stone corner to Sampson Hoffman's heirs." The deeds of the predecessors in title of the plaintiffs described the abutting line: "To Broad Run creek, thence up the same 39 3/4 poles to a stake corner to lot No. 2 this day conveyed to Emeliza Hoffman." But the immediate predecessor in title to the plaintiffs conveyed by the boundaries of adjoining lands, of which the defendant's land was one. In this latter deed the land of the defendant, Alton Grimm, is called for as the easterly boundary; instead of the line described in his predecessor's title as, "to Broad Run Creek; thence up the same 39 3/4 poles to a stake corner to lot No. 2 this day conveyed to Emeliza Hoffman." By their deed, and the declaration, the plaintiffs are confined for the eastern boundary of their land to the line of the defendant, Alton Grimm.
The case was tried before a jury under the plea of not guilty. The recovery was only for the one-half acre actually in dispute. While the defendant did not disclaim the remaining portion of the premises described in the declaration, the error was cured by reason of the plaintiffs' not taking a verdict for the balance of the land to which they would have been entitled to any event under the evidence.
The jury returned a verdict:
"We the jurors find said piece of land in dispute to be property of R. R. Yonker and D. K. Yonker without damage from Alton Grimm."
The verdict was put in the following form after the jury returned into court:
"We, the jury, find for the plaintiff that part of the land in controversy in this suit, bounded and described as follows: 'Beginning at the point marked B in the plat filed by G. E. Childs, C. E., in this case, thence S. 85~>> east about 9 poles to a point marked M in said plat; thence to the Broad Run creek at the point marked L on the plat aforesaid; thence following the meanderings of the said creek to the point B, the beginning."'
The defendant, by counsel, thereupon moved to set aside the verdict of the jury for reasons set out on the record, which motion was by the court overruled and the jury discharged, not only from this particular case, but from further service at the term of court. Three days later, before the final adjournment of the term, the court, in the absence of defendant or his counsel, and before any order had been entered of record recording said verdict, directed the clerk to issue a summons summoning the jury to appear before the judge of the circuit court on the following day to serve as petit jurors. In pursuance to this summons the petit jurors, who had theretofore served in this case as a jury, appeared in court, and were placed in the jury box without being sworn or examined as to their qualifications to serve as jurors. Counsel for defendant objected to the re-impaneling of said jury after their discharge as aforesaid, which objection was overruled. The court proceeded to in struct the jury orally to the effect that the verdict brought in four days before, through carelessness of counsel, was not in form required by the law of this state. It had failed to find the estate in the land recovered. The jury retired to their room, and in a short time returned into court with the following verdict:
This verdict was received and recorded. Counsel for defendant moved to set aside the verdict and award the defendant a new trial. Among numerous grounds assigned were these: That the verdict was materially different from the one rendered upon the trial four days before, and because the jury having been discharged from further service in the case and for the present term of the court, it could not be re-impaneled in this case to render another verdict.
Independently of other questions this case turns on the validity of this verdict. Did the court err in reassembling the jury, and had it authority to render a new verdict? This court said in State v. Cobbs, 40 W.Va. 718, 22 S.E. 310:
"The cou...
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