McClung v. Echols , 5 W. Va. 204 ( 1872 )

BERKSHIRE, P.

The only question properly made in this record, is the ruling of the circuit court upon the defendant’s motion for a new trial.

It is true that a question was raised here, that the court erred in admitting the plaintiffs’ evidence on the trial, which evidence consisted wholly of a copy of the record of the chancery suit between Benjamin F. Steele and the plaintiff and defendants in this action. But as no such question was reserved in the record, it cannot be considered here.

The appellants now insist that they were entitled to notice to quit prior to the institution of the suit, for the reason that they were in possession of the premises in controversy under a contract of purchase from the appellee, by the appellant, McAvoy, and that therefore they were, in judgment of law, the tenants at will of the appellee, and entitled to such notice. This might be the case if nothing had occurred to change that relation since the purchase and possession under it. But it appears from the record that by a decree rendered in the suit of Steel vs. the parties to this controversy before referred to, which decree has not been reversed or annulled, this contract was, in effect, declared null and void, if not at the instance of the appellants themselves, at least on account of the illegal consideration suggested by them; anjd consequently their possession became wrongful thereafter, and they must therefore be regarded as tenants at sufferance, and were not entitled to notice to quit prior to the institution of the suit. 3 Tucker Com., 82, 86; Williamson, Trustee, vs. Paxton, Trustee, 18 Grat., 475. Nor could the contract thujS annulled avail the defendants, as was claimed, as a valid defense under the provisions of the Code of West Virginia, ch. 90, § 20, p. 520.

It was also argued that the appellee failed to show any title to the land in controversy sufficient to entitle him to recover in this action. This objection is not tenable. The appellants did not attempt to show title in any other person than the appellee. But on the contrary, they claimed under him, and sought to defend their possession under the contract of purchase by the appellant, McAvoy, from the appellee, and were therefore estopped from disputing his title. 2 Tucker Com., 176; Emerick & Co. vs. Tavener, 9 Grat., 220.

It was further insisted by the appellants that the judgment rendered by the circuit court is erroneous, because it found that the appellee had title to the premises, as against the •defendants, instead of being absolute and against all others ; and also because the judgment was rendered against the appellants jointly, while it was claimed one of them (McAvoy) was shown to have no interest in the said premises. There is certainly nothing in the form of the finding of the court of which the appellants can justly complain; nor as I think, in rendering judgment against both of them. They defended the action jointly; neither of them entered any disclaimer, but on the contrary, they gave notice with their plea of not guilty, that they jointly claimed the premises in controversy, and would rely, on the trial, on the said contract between the appellee and the appellant, McAvoy; thus admitting not only that they were then in possession, but that such possession was a joint one, and would be jointly defended. Emerick & Co. vs. Tavener.

No error, therefore, is seen in the judgment complained of, and it must be affirmed, with costs and damages.

The other judges concurred.

Judgment affirmed.