Sutherland v. Gent , 121 Va. 643 ( 1917 )

Whittle, P.,

delivered the opinion of the court.

This is the third appearance of this controversy in this court. The first appeal was from a decree enjoining appellants, at the suit of appellee, from cutting and removing timber from the land in controversy until the further order of the court. That decree was affirmed. Sutherland v. Gent, 111 Va. 511, 69 S. E. 340. At that time defendant in error had brought ejectment against plaintiffs in error to recover 2678/4 acres of land situated in Russell county. And the trial of the action of ejectment resulted in a verdict and judgment for defendant in error, which judgment on writ of error was reversed by this court, and the case remanded for a new trial. Sutherland v. Gent, 116 Va. 783, 82 S. E. 713. The new trial again terminated in a verdict for the plaintiff, Gent, upon which the trial court entered the judgment under review.

The defendants filed a disclaimer as to the land included in the declaration, with the exception of 207 acres, to which they assert title by deed from their father, Alexander Sutherland.

The following excerpts from the opinion of this court on the last appeal will make plain one of the main questions in the case: “The plaintiff to connect his title with the Commonwealth put in evidence a deed from Richard Smith to the Warders, under date May 29, 1806, embracing a large boundary of land in Russell county. The deed recites that the entire tract was divided into various lots of 10,000 acres, 5.000 acres, and other quantities of land, each, for which separate patents had been taken out by the grantor, all of which were recorded in the land office. These various parcels amounted in the aggregate to 384,723 acres, more or less. . The deed expressly reserves from the operation of the grant to the Warders a boundary of 50,000 acres sold and conveyed by the grantor to P. Francis De Tu Beuf, and also other lands referred to therein. * * * The theory of the plaintiff is that the land in dispute is part of block 27 of 5.000 acres of the Richard Smith survey, now known as the Warder land. * * * The opposing theory of the defendants is that the land is part of block 26, which adjoins block 27 on the west, and is within the 50,000-acre reservation.” •

Plaintiff attempted to prove by a witness, Albert, the county surveyor, that the land in controversy was within block 27; but his testimony disclosed that he had never surveyed that block and had no personal knowledge of the location of the northeast corner, the beginning point of his survey. His information mainly rested upon a statement made to him twenty years before the trial by a former agent of the Warders, who had since died, and whose competency to speak on the subject was not made to appear.- The court, in dealing with that question said: “The evidence relied on to identify the beginning point of block 27 being inadmissible, it follows that the entire structure erected thereon must fall.” And, chiefly for that error, the judgment was reversed.

When the ease -went back for a new trial, Albert, in obedience to a new order of survey, returned another survey and map, which with his testimony and that of other witnesses, together with documentary evidence, accurately located the beginning corner of block 27, and showed that the land in dispute lay wholly within that boundary and was not included in block 26, as contended by defendants. The evidence for the plaintiff further showed that he connected his paper title through the Warders with Smith, who, as remarked, held block 27 by grant from the Commonwealth.

Defendants did not undertake to connect their title with the Commonwealth, but rested their claim to the 207 acres upon adverse possession for ten years under color of title • (the deed from their father, Alexander Sutherland). This feature of the controversy involves the doctrine of “lap,” or interlock, between the senior title of the plaintiff and the junior title of defendants.

That doctrine is very clearly stated in Green v. Pennington, 105 Va. 801, 54 S. E. 877,- as follows: “Where one grant conflicts in part with another, occasioning an interlock, the elder patentee under his grant acquires at once constructive seisin in deed of all the land embraced within its boundaries, although he has taken no actual possession of any part thereof. The junior grantee, under his grant, acquires similar constructive seisin in deed of all the land embraced by his boundaries, except .that portion within the interlock, the seisin of which has already vested in the senior grantee. Where, in the case of conflicting grants, the junior patentee settles upon that portion of the land within the interlock, claiming the whole within his boundary, he thereby ousts the senior patentee' of his constructive seisin and becomes .actually possessed to the extent of his grant. Here possession of part is possession of the whole. But if his settlement is outside of the interlock, the possession of part is to be construed in reference to the conflict of boundaries, and, with whatever claim it be taken, it gives him possession of that part of the land only lying without the interlock. To overcome the constructive seisin in deed of the senior patentee and work an ouster, there must be an actual invasion of his boundary by some act or acts palpable to the senses and which would serve to admonish him that his seisin is molested.”

The case, moreover, holds that in order to oust the constructive possession of the senior patentee, adverse possession continued for the statutory period after the date of the grant must be established.

It will be seen from the foregoing outline statement of the case that the record presents two major questions of- controlling influence:

1. Has plaintiff shown that the 267% acres of land described in his declaration is included in block 27; and, if so,

2. Have defendants shown adverse possession of, under color of title to, the 207 acres, or any part thereof, within the interlock, for ten years since the senior title of plaintiff accrued ?

Both of these propositions involve jury questions, and both, upon highly conflicting evidence, were submitted to and passed upon by the jury in favor of the plaintiff.- Therefore, a review of the evidence would be unprofitable. If the case has been fairly submitted to the jury upon the law, then their findings upon the facts, approved by the trial court, have passed beyond the cognizance of this court.

Innumerable questions of minor importance have been raised affecting the admission and exclusion of evidence, and the interpretation and authentication of documents of various kinds. Of all these exceptions, suffice it to say they have received respectful consideration, and concerning all of them, without more detailed notice, it may be remarked that we have found no reversible error therein.

Of the instructions, thirty-three in number, nine were requested by plaintiff and twenty-four by defendants. The court gave all of those asked by plaintiff, and of those prayed by defendants five were refused, eight were given, and eleven were modified. ° It may confidently be asserted that the instructions, as a whole, fully and' correctly propounded the law upon every material question in the case. More than that cannot be required of a trial court.

We find no reversible error in the judgment of the circuit -court, and it must be affirmed.

Affirmed.