Sims v. Capper , 133 Va. 278 ( 1922 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The first question to be disposed of is raised by a motion of the defendant to dismiss the appeal as improvidently awarded, on the ground that the billof exceptions containing the evidence in the case was not signed by the trial judge within sixty days from the time at which the final judgment was entered, as required by statute (section 6252 of the Code).

On examination of the record we find that the final judgment was entered on April 21, 1920; that on June 18, 1920, within sixty days after the final judgment was entered, the trial judge signed a skeleton bill of exceptions, in which the evidence both for the plaintiff and the defendants was referred to in the usual manner, to-wit, by the provisions, respectively “(here insert the evidence for the plaintiff),” and “(here insert the evidence for the defendant);” and on the same date the judge made the following endorsement, on the back of a typewritten report of all of the evidence in the case, namely: “Evidence in ease of Laura B. Sims v. Clendenning Capper. Given under my hand and seal this 18th day of June, 1920,” and signed this endorsement. This was sufficient to identify the evidence referred to in the skeleton bill of exceptions, and the clerk, in copying the record, was fully authorized thereby to have copied this evidence into the skeleton bill of exceptions. This, we think, brings the case within the requirements of the statute.

In our view of the case it will be necessary for us to deal with only one of the questions presented for our decision by the assignments of error, and that is this:

1. Have the defendants shown any title to the land in controversy acquired by them, or their predecessors in title, by adverse possession?

The question must be answered in the negative.

The plaintiff has shown a perfect record paper title, traced back to the Commonwealth. The sole defense of the defendants is that they and their immediate predecessors in title have acquired title to the land in controversy by adverse possession. The verdict of the jury, being for the defendants, it cannot be disturbed on appeal if there was any evidence before the jury sufficient to show such title by adverse possession.

It is, however, elementary, that, however long the mere possession, no title by adverse possession can be acquired unless the possession be accompanied by claim of title for the statutory period.

The claim of title is as essential as the possession, in order to constitute adversary possession; and the burden of proof to show both is upon those asserting the acquisition of title by such possession, whether with or without color of title. A mere naked possession, without claim of right, no matter how long continued, never ripens into a good title, but is regarded as being held for the benefit of the true owner. Kirk v. Smith, 9 Wheat. 241, 6 L. Ed. 81, 92; Creekmur v. Creekmur, 75 Va. 430; Kincheloe v. Tracewells, 11 Gratt. (52 Va.) 587; Reusens v. Lawson, 91 Va. 236, 21 S. E. 347; Shanks v. Lancaster, 5 Gratt. (46 Va.) 110, 50 Am. Dec. 108; Drumright v. Hite, 2 Va. Dec. 465; 26 S. E. 583; Sedgwick & Wait on Trial of Title to Land, sections 745, 755, 756.

The claim of title need not be expressed; it may be inferred from conduct which is unequivocal, and is inconsistent with any other reasonable inference, as, for example, possession held under a deed purporting to convey title is presumed to be with claim of that title (Va. Coal & Iron Co. v. Hylton, 115 Va. 418, 79 S. E. 337, Ann. Cas. 1915A, 741); whereas possession with mere claim of “ownership of the improvements” is held to be evidence of the absence of the requisite claim of right and title “to the land” upon which to base adverse possession. (Sedgwick & Wait on Trial of Title to Land, sec. 756, citing Davenport v. Sebring, 52 Iowa, 367, 368, 3 N. W. 403); and where the possession is originally taken under a mistake or misapprehension as to the true boundary, this is prima facie evidence of the absence of any hostile claim of title, which has to be overcome by proof of the existence of a specific intention to claim a hostile title to the land. (Christian v. Bulbeck, 120 Va. 74, 90 S. E. 661; Sedgwick & Wait on Trial of Title to Land, sections 759, 760.) But however sought to be established, whether by showing an express claim of title, or by proof of conduct from which the inference of claim of title is sought to be drawn, the fact that the possession was accompanied by an actual, hostile, claim of title must be made manifest by ,thé evidence. Haney v. Breeden, 100 Va. 781, 784, 42 S. E. 916, and authorities above cited.

In the instant case, the possession of the defendants themselves was accompanied by claim of title; but that possession covered a period of less than two years. To complete the statutory period requisite to obtain title by adverse possession it was necessary to tack the period, of the possession of the defendants to the possession of their immediate predecessor in title, Edward T. Woody. This could be done, and would more than complete the requisite period of possession, if the possession of the latter was accompanied by claim of title to the land, for such possession alone continued unbroken for some forty-one years. But there was an entire absence of any evidence before the jury, of any probative value, tending to establish the fact that Woody’s possession was accompanied by any claim of title to the land. The witnesses on the subject admit that they never heard Woody make any express claim of title to the land. One of the witnesses does say that he knew that Woody “claimed the buildings.” This of itself, as we have seen, instead of being evidence tending to show a hostile claim of title to the land, was evidence to the contrary. It tended to show that Woody did not claim any title to the land. The conduct of Woody, shown by the testimony for the defendants, is, to say the least, equally consistent with his mere claim of ownership of the buildings under a revocable license from the true owner of the land on which they stand, as with any claim of ownership of the land. And the circumstances under which the buildings were first erected, and with respect to when and from whom Woody acquired the possession of the buildings, as shown by the testimony for the defendants themselves, negative the idea that Woody’s possession thereof was ever accompanied with any claim of title to the land. Then, too, there is the uncontroverted testimony for the plaintiff that Woody, only a short time before his death, admitted that he claimed no title to the land, but “only claimed the buildings.”

Further: The will of Woody, under which the defendants claim title, when read in the light of the other evidence, furnishes convincing proof that the testator, in truth, did not undertake to devise to defendant, Mrs. Woody, any of the land in controversy, or even to bequeath to her the dwelling and store building thereon, but merely the stable building. There were two separate buildings on the land in controversy, which were in the possession of Woody up until his death — one the stable, at the south end of the Chain bridge, in Virginia; the other the dwelling house and store, which was not at, but some distance away from, the south end of such bridge. He attempted by his will to bequeath only one building, to-wit, the “house at the south end of Chain bridge, in Virgina.” And the bequest was of the “house” merely. As aforesaid, it was not a devise of any land. This, of itself, when considered in the light of the other evidence in the case, was evidence of the absence of any claim of title on the part of the testator to any of the land in controversy.

The evidence, without conflict, presents a case of mere naked possession on the part of Woody, without claim of right to the land.

The verdict and judgment under review must, therefore, be set aside and annulled.

2. Before concluding this opinion, we will mention certain positions taken in the brief for the defendants.

It is argued for the defendants that the land claimed in the declaration, upon the survey by Hough, as per the plat in evidence, overran the quantity of 5.22 acres, called for in the deeds in plaintiff’s chain of title, by 9,844 square feet, and that the jury might have found that the land claimed by the defendants was embraced in this excess quantity of land.

There is no merit in this contention. It is well settled that the acreage called for by the title papers, while a circumstance to be considered in identifying the land, is the least reliable of all the evidences of its true location. Where the boundary lines called for in the writings evidencing the title are located on the ground in accordance with such calls, those lines fix the location of the land, irrespective of the acreage called for in such writings.

It is stated in the brief for defendants that “no surveyor, or lawyer, or title examiner, or other person was ever put on the stand to testify as to the identity of the land in controversy, or the 5.22 acres, with the other land with which the chain of title started.” The plaintiff introduced two surveyors as witnesses, who testified to the location on the ground of the land claimed in the declaration as conveyed to the plaintiff from her immediate grantor; but it is true that those witnesses did not testify on the subject of tracing that land back, as the same which was included in the preceding deeds in the plaintiff’s• chain of title; and there was no other oral testimony attempting to do this. It is further true that ordinarily some oral testimony is necessary in aid of the descriptions in various deeds in a chain of title, in order to identify the land conveyed by the respective deeds as being located in the particular place'in question. However, it so happens in the instant case that the descriptions •of the land conveyed, contained in the respective preceding deeds in the plaintiff’s chain of title, are, by the terms employed, so connected with the descriptions of the land conveyed by the deed from the plaintiff’s immediate grantor, that it is apparent from a mere reading of such preceding deeds that they embrace the same land.

For the reasons above stated, the judgment under review will be reversed; and, the facts before us being such as, in our opinion, to enable us to attain the ends of justice, we will enter a final judgment for the plaintiff, to the effect that the plaintiff is the owner of an estate in fee simple in, and that she recover of the defendants, the land in controversy, consisting of the dwelling and store building and that portion of the stable building, included within the lines of the aforesaid plat filed in evidence, and also ■ the land lying between those buildings, with costs; without prejudice, however, to the right of the defendants, if they so desire, to apply to the court below for an allowance for improvements, subject to an assessment of the damages of the plaintiff, and for a suspension of the execution of the judgment, under chapter 225 of the Code, the proceeding, if had, to_be governed in all respects by the provisions of that chapter, and for that purpose the judgment entered by us shall be regarded, as if it had been entered by the court below.

Reversed and final judgment.