Virginia & Tennessee Coal & Iron Co. v. Fields , 94 Va. 102 ( 1896 )

Keith, P.,

delivered the opinion of the court.

This is an action of ejectment instituted in the Circuit Court of Wise county by Aaron II. Nash against James Wright for the recovery of a certain tract of land described in the declaration. Nash died, and the suit was revived in the name of his devisees, as plaintiffs. James Wright, the defendant, died, and the suit was revived in the name of his heirs at law, and at a subsequent term the Yirginia & Tennessee Coal & Iron Co. was, upon its petition, admitted a party, and is the active and substantial defendant. The case was tried before a jury, and a verdict and judgment rendered for the plaintiffs. During the progress of the trial a number of exceptions were taken, and the defendant applied for and obtained a writ of error from this court.

The first assignment of error is taken to the action of the court in permitting certain of the defendants from whom the Ya. & Tenn. Coal & Iron Co. had purchased to confess judgment in favor of the plaintiffs.

There may be cases where defendants, conspiring with the plaintiffs to defraud and injure their co-defendants, would be denied the right. We say there may be such cases, though we know of none, and certainly this case is not one of them. There is nothing upon the record to suggest that the defendants confessing judgment were induced to do so by any improper motive, nor by any desire to injure or embarrass their vendee and co-defendant, the Ya. & Tenn. Coal & Iron Co. If, recognizing the infirmity of their case, and unwilling to incur the cost and annoyance of an unavailing defense, they preferred frankly to recognize the plaintiffs’ demand, they not only had the right to do so, but it was right in them to do so, and for it they are rather to be commended than criticised.

The second assignment of error is that the court erred in allowing plaintiffs to offer in evidence the record in the case of James Campbell against the unknown heirs of Diehard Smith for the purpose of using as evidence certain exhibits contained in the said record, and for no other purpose, as set out in defendants’ bill of exceptions Ho. 1.

There was no error in this. The evidence was admitted as tending to prove title, and was proper, if accompanied by proof of possession under claim of color of title. Evidence tending to prove possession is abundantly supplied by the record. But even though the court erred in admitting the record when offered by the plaintiff, that error was cured by the defendants when they themselves at a subsequent stage of the cause offered the same record in evidence. If the action of the court in permitting this record to be read at the instance of the plaintiff were now held to be erroneous it would not affect the record as it was presented in the trial before the jury for it would still be in evidence upon the motion of the defendant. This assignment is not well taken. Rich v. Rich, 16 Wendell, at p. 666; Edington v. Mutual Life Ins. Co. of N. Y., 67 N. Y., at p. 192.

The third assignment of error is that the court erred in allowing the plaintiffs to offer in evidence the deed from Richard Smith to John Warder and others, for the purpose of supplying a link in the chain of their title i >y means of the recital contained in said deed.

In Carter v. Robinette 33 Gratt., at page 429, it will be seen that this court passed upon this identical objection, and, without going into any discussion of the subject we are content to rely upon that case as authority for over-ruling the objection now made.

Assignment of error number four is to the action of the court in permitting the plaintiffs to offer in evidence a deed from John Bickley to James Campbell purporting to have been made in pursuance of a decree entered in the suit between Campbell and others, and the administrator and heirs of Luke Wheeler.

The principal objection, indeed the only one that requires consideration, is that the deed from Bickley, commissioner, ví as never approved by the court. It appears that the decree under which the commissioner acted directed him “to make sale of all the right, title and interest of Luke Wheeler con-v eyed by deed of trust executed by Wheeler to J ohn Williams and S. Whitehead on the 8th day of October, 1824.” By the decree of sale the commissioner was not only directed to sell the land, but upon compliance with the terms of the sale to make a deed to the purchaser. The report of the commissioner shows that on the 12th day of January, in the year 1856, he offered the property for sale in accordance with the terms of the decree; that James Campbell became the purchaser, and that the commissioner, as required by the decree, executed to James Campbell a deed conveying the property sold.to him and took from him a deed of trust to secure the unpaid purchase money. This report was by a subsequent decree duly confirmed, no exception having been taken thereto. To say that the report of the deed was confirmed, but not the deed itself, is somewhat hypercritical.

What has been said with respect to the fourth assignment of error disposes also of the fifth, as they appear from the petition to be practically the same.

The sixth assignment of error is to the action of the court in permitting the plaintiffs to offer in evidence a deed from James Campbell by William H. Bums, his attorney in fact, to Aaron H. Nash, without satisfactory explanation of the interlineations and defacement of the deed, and without proof of its execution, the acknowledgment being informal.

The so called interlineations and defacement in the deed, and the alleged informality, are immaterial and wholly insufficient to warrant its exclusion. 1 Greenleaf on Ev., (14th Ed.), sec. 564; 1 Wharton on Ev., sec. 629; Stephen’s Dig. of Ev., Art. 89; Little v. Herndon, 10 Wall., at page 31; and Keen's ex'or v. Monroe, &c., 75 Va., at page 427.

The seventh assignment of error is virtually disposed of by what has already been said with respect to bill of exceptions number one, and need not be further considered.

The eighth assignment of error was withdrawn by the plaintiff in error.

The ninth assignment of error is to the action of the court in refusing to allow defendants to. offer in evidence a deed from Campbell and others to the Ya. & Tenn. Coal & Iron Go., for the purpose of showing a superior outstanding title in defendant.

The deed is a quit claim deed, with a covenant of special warranty, and purports to convey “such interest only as they (the grantors) now have, whatever that may be, in the aforesaid lands.”

In Dembitz on Land Titles it is said: “Where the intent to trade on whatever interest the grantor may have can be gathered from the whole instrument, the grantee will be postponed to an unrecorded deed.”

In Devlin on Deeds it is said: “But even in States where a quit-claim deed is recognized as an effectual mode of transferring the title of the grantor, and is accorded the same privileges under the registry law as a deed of bargain and sale, yet if it appears by the deed of quit-claim that the grantor intended to convey only such laud as he owned at the time of its execution, the lands embraced in the prior operative conveyance are reserved from the operation of the quitclaim deed, and title to such previously conveyed lands will not pass by the deed of quit claim, notwithstanding that the prior deed remains unrecorded.” Sec. 671. To the same effect, see 1 Warveli on Yendors, sec. 5, at page 337. This objection is not well taken.

The tenth assignment of error is to the refusal of the court to exclude the record as offered in evidence by the plaintiffs in the suit of James Campbell against the unknown heirs of Bichard Smith.

This is stated by the petitioner to be practically the same question raised by bill of exceptions number one, and it must share the same fate.

After the evidence was concluded the plaintiff asked the court for four instructions.

We think that the four instructions given by the court, upon the request of the plaintiff, correctly state the law, and we are also of opinion that the court did not err in refusing certain instructions asked for by the defendants, and in giving others, with modifications. Upon the whole we are of opinion that the law was fairly expounded to the jury. The whole case, indeed, when carefully considered, leaves no doubt that it was correctly decided in the court below. The paper title as shown by the plaintiff is complete, possession under it was held by the plaintiffs and those under whom they claim for a long period prior to the institution of the suit, and, by purchase of the improvement claim from James Wright, through whom the defendants undertook to deduce title, the plaintiffs were clothed with whatever right of possession may have existed in him, and his subsequent return to the property in dispute placed him in the attitude of a naked trespasser who acquired no right, and could therefore transmit none.

After the verdict had been rendered, and the judgment entered thereon, the defendants moved in arrest of judgment because the court erred in requiring defendants to file the particulars of their defence; and secondly, because the court erred in refusing to require plaintiffs to file particulars of their ground of recovery.

As to the propriety of requiring the defendants in an action of ejectment to file the particulars of their defence, inasmuch as the plaintiffs must recover upon the strength of his own title, we express no opinion, but we think the court properly overruled the motion in arrest of judgment, as that is not the proper method of raising the question which the defendants desired to present. It should have been done by a bill of exceptions, but as far as the record shows no objection was taken to the action of the court when the motion for a bill of particulars was passed upon, and we think it is too late after a verdict and judgment.

Upon the whole case, we are of opinion that the record discloses no error to the prejudice of the defendants, and the judgment of the Circuit Court of Wise county must be affirmed.

Affirmed.