Gutshall v. Hamilton , 134 Va. 416 ( 1922 )

Sims, J.,

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

The sole assignment of error is that the verdict for the defendant was plainly wrong, because it is without evidence to support it.

In the petition of the plaintiff for the writ of error the position is taken that the description of the land in the agreement of sale and also in the deed from Elizabeth F. Carpenter to Sallie B. Hamilton, in the chain of title claimed by the defendant, is too vague and indefinite to furnish even color of title to the land in controversy. In view, however, of the stipulation appearing in the record, to the effect that it was admitted by all parties, on the trial before the jury, that the title of the defendant was derived from the Commonwealth and is older than that of the plaintiff, it becomes immaterial for us to consider the position just mentioned, and hence we do not set out the description of the land sought to be drawn in question.

In view of said stipulation, even if it were construed to refer merely to the title claimed by the defendant, and not to admit that the defendant had acquired that title; and even if the deed and agreement mentioned were so defective in description of the land that there was a missing link in the chain of title claimed by defendant; still as that title is admitted by the stipulation to have been derived from the Commonwealth and to be older than that of the plaintiff, it would constitute an outstanding title superior to that of the plaintiff, which, as it is well settled, would defeat the plaintiff’s right of recovery in any aspect of the ease, if the land in controversy is in fact located within the bounds fixed by the title papers in that older chain of title. The plaintiff must recover, if at all, in a ease such as that before us, upon the strength of his own title and not upon the weakness of the title of the defendant.

Accordingly we find that the case was tried in the court below upon the issue of fact (among other issues which have become immaterial in the view we take of the case), as to whether the boundaries fixed by the papers in the aforesaid older chain of title, before the title reached the defendant, included the land in controversy, and the case turns upon the following question, namely:

1. Was there sufficient evidence before the jury to warrant the finding that the 100 acre tract of land in controversy is located within the boundary lines fixed by the papers in the older chain of title?

The question must be answered in the affirmative.

There is a conflict in the evidence upon this subject, but all of the evidence bearing upon it is set forth above, and it is plain that there was ample evidence to support the verdict.

Indeed the testimony of the surveyor of Highland county, the only witness for the plaintiff on the subject under consideration, in so far as he merely gave his opinion, was a conclusion of his which was not of itself evidence, and, although admitted before the jury without objection, it had of itself no probative value. Griggs v. Brown, 126 Va. 556, 102 S. E. 212. It was a question for the jury, and not for the surveyor, to determine, from the data furnished by all the evidence in the case, whether the conclusion to which he testified was a correct conclusion. Moreover, the testimony of this witness in regard to the true location of the land under the description of the deed to Sallie B. Hamilton, the last link in the chain of title claimed by the defendant, did not go to the root of the matter. As aforesaid, the issue being tried was not that question, but whether the land as claimed by the plaintiff was located within the description of the papers in the chain of title which was outstanding and was older than the title of the plaintiff.

The testimony of Gillispie fully supported the ver- ' diet in its finding that the land in controversy is located within the description contained in the papers in the older and outstanding title.

It is true that it does not appear from this testimony that the declaration of the former purchaser of the land referred to was made under such circumstances as to make such declaration proper as primary evidence; and some of the statements of the witness may have been open to objection as hearsay; but no objection was made thereto on the trial. If incompetent or hearsay evidence is admitted without objection thereto, the jury may properly consider it as evidence in the case. New-berry v. Watts, 116 Va. 730, 82 S. E. 703. Moreover, the witness, Gillispie, stated that the 100 acres of land in controversy is a part of the land described in and conveyed by the tax deed in the chain of the aforesaid older title as a fact within his own knowledge, not as a mere opinion of his; and the record does not disclose that such fact was not within his own knowledge.

The case must therefore be affirmed.

Affirmed.