Lawson v. Dalton

Green, Judge, announced the opinion of the Court: The first ground of error assigned by the counsel of the plaintiff in error is, that the jury has not found either in form or effect, that at the date of the complaint the defendant unlawfully withheld from the plaintiff the possession of the land, and that he had not so held it for three years before the commencement of the suit; and yet both of these facts must exist, before the plaintiff is entitled to recover. But our statute now, while it still requires the existence of the facts to justify a verdict, does not require, that they shall be stated in the verdict, but only that if they are found to exist by the jury, “the verdict shall be for the plaintiff for the premises in the summons mentioned.” This is just the verdict, which in this ease the jury rendered. It has in effect been decided to be sufficient by this Court in the case of Munn et al. v. Bryant et al., 12 W. Va. 516. The reasons for this conclusion are fully .stated in that case and need not be repeated. The next error assigned is, that the court erred in refusing to give the instruction as asked by the defendant and in modifying it by striking out the portion of it in italics. The striking out of this portion did not change the meaning of the instruction ; the portion struck out was mere surplusage, which only rendered the instruction obscure. If the. defendant was in adverse possession of this land for eight years, as the first part of the instruction alleges, then as a matter of necessity [770] during any portion of that period the plaintiff could not have had possession of the land; for if he had, the defendant’s possession of the whole land would not have been adverse to him, they could only have held it in common. The court therefore did not err in striking out this portion of the instruction. It might well have refused to grant the instruction at all, as there was no evidence tending to show, that the defendant ever had any adverse possession of this land as against the parries, mder whom the plaintiff claimed, James A. .Neighbert, the trustee, or Obediah Workman. The deed-of-trust by Workman to Neighbert, trustee, was recorded on the day it bears date. The contract of purchase madebythe defendant, Dalton, with Workman was made, when he knew, that Workman held but an equitable title to the land, and of course the occupation of the land by the defendant under this purchase was not adverse but in subordination to' the title of the owner of the legal title ; and it is immaterial how long such a possession continued, if the plaintiff brought his action within three years after his cause of action accrued, he had a right to recover in this form of action. The last error assigned is, that the court erred in giving the instruction asked by the plaintiff. It is insisted, it should have been modified by adding to it “ unless the defendant was in adverse possession of said land, before the deed was made to the plaintiff, for a time sufficiently long to give him a right of possession in the land.” But as there was not, as we have seen, the slightest evidence tending to show any such previous adverse possession, the court could not with propriety have made such a modification. There is no error in the instructions given or refused, which was prejudicial to the defendant. The verdict of the jury was fully justified and required by the evidence, and, they could properly have gone further and found, that the plaintiff had sustained damages by the unlawful detention of his land by the defendant; but the plaintiff can not complain of their not so finding. The court did not err in refusing to grant a new trial or in entering up the judgment it did on the verdict. This judgment must be affirmed by this Court; and the [771] defendant in error, Anthony Lawson, must recover of the plaintiff in error, James Dalton, his costs in this Court expended and $30.00 damages. Judges Johnson and Haymond Concurred. Judgment Affirmed,