Sulphur Mines Co. v. Thompson's Heirs

Buchanan, J., delivered the opinion of the court. Upon the trial of this cause, which is an action of ejectment, the court permitted the plaintiffs, over the objection of the defendant, to introduce in evidence extracts from the land books of Louisa county showing that a tract of land containing the same number of acres, and lying the same distance from the courthouse, and in the same direction as the land in controversy, was charged' on the land books for the purposes of taxation. From the year 1832 to the year 1873, inclusive, the land was charged in the name of George Pottie’s estate, and from the year 1874 to the institution of this action it was charged to George Pettus. They were also allowed to introduce in evidence tax tickets showing the payment of taxes on the land so listed upon the land books. One objection to this evidence was that the land was charged upon the land books of a different district from that in which the land in controversy was located, and as one of the questions in the cause was the identity of the land sued for, the evidence tended to mislead the jury. The evidence was offered to show that the claimants of George Pottie’s estate had, during that period, made claim to the land and — 307 — paid taxes thereon. This action was brought for their benefit, and they had the right to show that during that period they were asserting their claim to, and paying taxes on, the land in controversy. The question whether the tract of land sued for and the tract to which they had asserted claim, and upon which they had been paying taxes, was the same tract, was for the jury. The fact that it was taxed in a different district from that in which the land in controversy was located, was a circumstance tending to show that it was not the same land, but was not conclusive of it, and was no sufficient reason for excluding the evidence from the jury. Another objection made to the extracts from the land books is that they contained the following statement: “In 1871 Pottie, Geo. E., 25 acres Con. Greek, N. E. 12. Subsequently Geo. E. Pottie’s name was dropped and the name of Geo. Pettus appeared with the same number of acres, location, bearing and dis. from O. H. as above. It is believed that this is the Geo. E. Pottie land.” The statement was made in the land book in the year 1890, after the controversy in this case had arisen. The last sentence in it is a mere expression of an opinion, not a statement of fact, and was clearly inadmissible. If the court’s attention had been called to the statement it would doubtless have excluded it, but the objection made, as shown by the bill of exceptions, was to “ all and each of said extracts and receipts.” This objection being general, the court properly overruled it, as the extract, except the statement complained of, was clearly admissible in evidence. The objection to exclude was too broad. Kincheloe v. Tracewells, 11 Gratt. 587, 600-1. The party objecting ought to have pointed out specifically the objectionable part, so that the court might have excluded it, and allowed the residue of the extract to go to the jury. The assessor, who made the statement complained of, was, — 308 — during the progress of the trial, examined as a witness. He explained the circumstances under which the statement was made, so that the jury had all the facts upon which he based his opinion. It is scarcely possible that his expression of opinion could have prejudiced the defendant under the circumstances, but if it did, having failed to make the proper objection in the court below, it cannot make it here now for the first time. Warren v. Warren, ante p. 73. The assignment of error that the description of the land intended to be conveyed by the deed from Cosby to Dear, made in the year 1785, is so vague and indefinite that ím title passed by it, cannot be sustained. The deed describes the land as one “ certain tract or parcel of land situate, lying, and being in the county of Louisa, on the north fork of Contrary River, being a part of the land I purchased from Barrett Mitchell, the lower end of the said tract, joining the lands of Thomas Bond, John Timberlake, William Cliff, and my own that was taken from the said tract of land here described sold by the said Charles Cosby to Charles Dear,, containing by estimation two hundred and thirty acres, be the same, more or less,” &c. It is true that the deed does not describe the land by courses and distances, but it is described as lying in Louisa county, on the north fork of Contrary River, as a part of the land conveyed by Barrett Mitchell to Cosby, and that it adjoins the lands of Bond, Timber-lake, Cliff, and the grantor. Extrinsic evidence was admissible to ascertain the location of the adjoining lands called for, so as to apply the deed to its proper subject-matter. If, with the aid of such evidence, the land could not be identified, then the plaintiffs must fail in their action; but the deed upon its face, is not so defective in the description of the land as that the court could pronounce it ambiguous or uncertain, and exclude it from the jury. No court is at liberty to pronounce an instrument ambiguous or uncertain until it has brought to — 309 — and in its interpretation all the lights afforded by collateral facts and circumstances which are properly provable by parol. 1 Greenleaf on Ev., secs. 298 and 300. The court properly admitted the deed in evidence. The plaintiffs in the action are the heirs of John Thompson, deceased, who sue for the benefit of the claimants of the unadministered estate of George Pottie, deceased. Thompson was the executor of Pottie, and it is claimed that at a trustee’s sale of a tract of land which the evidence tends to show was the land in controversy, he became the purchaser. The deed conveying the ^property to him describes him as the executor of George Pottie. Whether he purchased the property in his own right, or for the benefit and for the purpose of saving the debt of his testator’s estate, is immaterial, In either event he was invested with such title to the property as passed by his grantor’s deed. Upon his death it descended to his heirs-at-law, to be held by them as trustees for Pottie’s estate, if it was purchased by their ancestor for the benefit of that estate; for their own benefit, if purchased for himself. In any action at law for the recovery of the land, the heirs of John Thompson, assuming that the legal title passed by the deed to him, whether they sued for themselves or for the benefit of the estate of Pottie, were the proper and only parties who could sue. In an action of ■ejectment the holder of the legal title, as a rule, alone can sue. If the property was purchased for the benefit of Pot-tie’s estate, and to save the debt secured by the trust, it will be dealt with in a court of equity as personal estate, but in a court of law it is real estate. Another ground of objection relied on is that the plaintiffs failed to trace their title back to the Commonwealth, or further back than the year 1765. It was necessary for the plaintiffs to show that they had legal title to the land in controversy. This might have been done by showing a grant therefor from the Crown or Commonwealth, and by con — 310 — necting themselves therewith by a regular chain of title. This could not be done, it was claimed, because of the destruction during the late war of the records of Hanover county, from which Louisa county was formed. It might also have been done by showing such a state of facts as would warrant the jury in presuming a grant. The evidence tended to prove that those under whom the plaintiffs claimed had taken possession of the land under, at least, color of title, and held it for many years. A number of deeds were offered in evidence for a tract of land of which the land in controversy was claimed to be a part. The first deed offered in evidence was from Garrett to-Pryor in 1765. Pryor conveyed to D. Smith in 1768; D. Smith to William Smith in 1770; William Smith to Mitchell in January, 1779; Mitchell to Cosby in October, 1779; Cosby to Dear in 1785; and Dear to William Grady in 1786. Each of these conveyances, except the first, shows that possession of the land was delivered by each vendor to his vendee. In 1810 Grady executed the deed of trust to Edwards, trustee, to secure Pottie. The evidence tends to show that Grady was in the possession of the land when he died, during or soon after the close of the war in 1812, and that the parties under whom the plaintiffs claim were in the possession of the land from the year 1768 to the year 1812, or 1813, a period of some forty-five years. The evidence of possession, and the destruction of the records were sufficient to warrant the jury in presuming a grant for the land in controversy to Garrett, or those under whom he claimed. One of the links in the plaintiffs’ chain of title was a deed from Reuben Edwards, administrator of John Edwards, trustee in the deed of trust executed by Wm. Grady, to secure a debt due George Pottie. Whether or not the grantor in the deed of trust was dead when the sale was made under the trust in the year 1813 does not clearly appear. — 311 — He was dead in 1830, when the deed to the purchaser at the sale was made. It is contended that, upon the death of the trustee in the deed of trust, the legal title to the trust subject descended to his heirs, and that the power to sell passed to his personal representative by the terms of the deed of trust; that this power of sale being a naked power, not clothed with an interest, and not having been exercised during the lifetime of the grantor, the power to sell was revoked by his death, and that any sale or conveyance made thereafter by the personal representative of the trustee was a nullity. It is true in the ease of a mere naked power that it dies with the donor, and cannot be exercised after his death, although it may have been irrevocable during his life; but this consequence only follows in those cases where the power is a naked power, and is to be exercised in the name and as the act of the person who granted the power. Where the power is coupled with an interest so that it may be exercised in the name and as the act of the donee of the power, the death of the person who conferred the power has no effect upon it. The reason given why the death of the donor revokes the power in the one case, and not in the other, is that in .the case of a naked power, the interest or title being vested in the person who confers the power, it remains in him and can only pass out of him by a regular act in his own name. The act of a donee of a naked power, to be effectual, must he the act of the principal, done in his name, and be such an act as the principal himself would be capable of performing at the time the act was done. When the principal dies (being incapable thereafter of performing any act himself) all powers which he has conferred upon others, and which must be exercised in his name as principal are of necessity revoked. Such powers die with him; for it would be an absurdity to allow an act to be done in the name and — 312 — as the act of a principal, who was dead when the act was done—to allow an agent to do for him and in his name what he had no power to do for himself. Story on Agency, section 488. But where the estate or interest upon which the power is to be exercised passes with it, and vests in the donee of the power, he acts in his own name. Tljp estate or interest being in him, he can convey it in his own name, He is not a substitute, acting in the name and place of another, but is a principal acting in his own name, by virtue and in pursuance of powers which limit his estate or interest. In such a case the reason which limits the power to the life of the person giving it no longer exists, and the rule ceases with the reason upon which it is founded. In Hunt v. Rousmanier, 8 Wheat. 174, an attorney in fact was invested with authority to sell a brig at sea, and pay the proceeds to the creditor. It was held in that case, Chief Justice Marshall delivering the opinion of the court, that the death of the principal revoked the power of attorney, although it was irrevocable in his lifetime by reason of the interest of the creditor in its execution. The power was to be exercised in the name of the principal and this could not he done after his death. In the same case, when it was decided in the trial court, Mr. Justice Story said: “When it is said that a naked power is extinguished by the death of the person creating it, the language is meant to be confined to those cases in which, as in the case now before the court, the power is to be executed in the name and as the act of the grantor, and not of the grantee.” 2 Mason, 244. In the case of Washington University v. Finch, 18 Wall. 106, a deed of trust had been executed before the late civil war to secure a debt. The grantors were residents of and lived in one of the Confederate States. The property was located, and the trustee lived, in the State of Missouri. A sale was — 313 — made during the war. It was claimed that the power was revoked by the war. The Supreme' Court of the United States denied this, and held that the power under which the sale was made “ was irrevocable.” In Berry v. Skinner, 30 Md. 567, it was held that the power of sale given in a mortgage was not revoked by the insanity of the mortgagor; that neither his insanity nor death would in any manner interfere with the mortgagee’s right to execute the power of sale in the mode and manner stipulated by the parties, and the reason given was that a power “ coupled with an interest so that it can be executed in the name of the donee or trustee is irrevocable.” Washburn, in his work on Real Property, Vol. 2, side page 499, in discussing the power of sale given in a mortgage, says that “ such a power is coupled with an interest, and is appendant to the estate and irrevocable. It consequently passes with the estate by assignment, nor does it die with the mortgagor.” In Hunt v. Rousmanier, cited above, Chief Justice Marshall said: “We know that a power to A to sell for the benefit of B engrafted on an estate conveyed to A may be exercised at any time, and is not affected by the death of the person who created it.” In Perry on Trusts, sec. 602, it is said: “It is a universal rule that a power coupled with an interest is irrevocable, and as a power of sale inserted in a mortgage or deed of trust to a creditor to secure a debt, or to a third person for his benefit, is a power coupled with an interest, it cannot be revoked by any act of the grantor or donor of the power, not even the death or the insanity of the grantor or donor will .annul or suspend its exercise. The debt remains, the right or lien on the property remains, and the power is coupled with them. In other words, the power is annexed to the property, and is an irrevocable part of the security and goes with it.” — 314 — The power of sale conferred upon a trustee in a deed of trust being irrevocable, the death of no one, nor all of the parties to it, could affect the right of the creditor or his personal representatives to have the power of sale enforced. If the trustee died before executing the power of sale, and there was no provision made in the trust for some other person to exercise that power, resort to a court of equity would have been necessary, as the law was at the time the deed of trust in question was executed, for the appointment of another trustee, or to have a sale made by a commissioner of the court. In either case, however, the sale when made, must, as far as practicable, be in the manner and upon the terms prescribed by the deed of trust. Crenshaw v. Siegfried, 24 Gratt. 272, 279. In the deed of trust under consideration, to avoid the necessity of resorting to a court of equity, if the trustee died before executing the power conferred upon him, the trust expressly conferred the power of sale upon his personal representative. The fact that the power to sell and the estate or interest coupled with it were afterwards separated, the power passing by the terms of the trust to the personal representative of the trustee, and the estate or interest descending to his heirs, did not revoke the power of sale any more than it reconveyed the estate. Although the personal representative of the trustee was not clothed with the estate or interest conveyed by the deed of trust, a sale by him, if made in pursuance of the deed of trust, would divest the heirs of the trustee of the title or interest, and invest the purchaser therewith by virtue of the provisions of the deed of trust, and the deed of the personal representative to the purchaser. National Webster Bank v. Eldridge, 115 Mass. 424, 428; Carrington v. Goddin, 13 Gratt. at page 601, &c. In the case of White v. Stephens, 77 Mo. 452, where the — 315 — deed of trust provided that, in the case of the absence, death, refusal to act, or disability in any wise of the trustee named therein, the then acting sheriff of the county should, at the request of the holder of the note secured, sell the property, and execute a deed to the purchaser. The condition upon which the sheriff was authorized to sell having arisen, he sold and conveyed the property. The validity of his sale was attacked, but the court said: “ In the case at bar, the title passed from the grantor to the trustee named in the deed of trust, as a security for the debt, and was subject to be divested upon the execution of the power by the sheriff, and the conveyance of the sheriff was not required to he made in the name of the grantor in the trust deed, and the well known rule announced in Hunt v. Rousmanier, that an attorney in fact cannot execute a conveyance in the name of his principal after the death of the principal, is therefore inapplicable here.” The validity of the sheriff’s sale and conveyance, which were made in pursuance of the trust, was sustained. See Beal v. Blair, 33 Iowa, 318, 321; Clark v. Wilson, 53 Miss. 119, 128-9. We do not think that the power of sale was revoked by the death of the grantor in the deed of trust, but continued in full force for the benefit of the creditor whose debt was secured by it. The personal representative of the trustee sold and made a conveyance. His deed recites that the conditions upon which he was authorized to sell had arisen, and that the sale was made in pursuance of the trust. Objection was made to the introduction of this deed in evidence, and afterwards a motion was made to exclude it, upon the ground that it was made in the exercise of a naked power; that there was no evidence that a sale was ever made under the trust; and that the recitals in the deed were not evidence of the facts recited. The trustee in a deed of trust takes a legal, though a de — 316 — feasible title, and a deed from him to a purchaser conveys an absolute estate in a court of law, whether the conditions of the trust deed have been complied with or not, though a different rule prevails in a court of equity. Taylor v. King, 6 Munf. 358; Harris v. Harris, 6 Munf. 367; Powell v. Taylor, 10 Leigh 172, 183. But the personal representative of the trustee being clothed with a naked power, not coupled with an interest, and his right not being absolute but conditional, his deed would not invest a purchaser from him with title unless the conditions existed upon which a sale was authorized, and the sale was made in accordance with the terms of the trust. The burden of proving these facts was upon the party claiming under the deed, and the recitals in the deed, unless made so by statute, were not prima facie evidence of the existence of such facts. New principles of law are more firmly settled than that in the case of a naked power, not coupled with an interest, the law requires that every prerequisite to the exercise of the power should precede it; that when the validity of a deed depends upon acts in pais, the party claiming under it is bound to prove performance of those acts; and that unless there be some statute making the recitals in the deed of the person making the sale prima facie evidence of the regularity of the proceedings, the acts in pais relied on to sustain the sale must be proved by evidence aliunde. Flanagan v. Grimmett, 10 Gratt. 421, 425-6, and cases cited; Walton v. Hale, 9 Gratt. 194, 197-98; Reusens v. Lawson, 91 Va. 226, 236; Deputron v. Young, 134 U. S. 241, 256-7. The case of Robinett v. Preston, 4 Gratt. 141, is relied on as authority for dispensing with such proof. That was a sale of land by a sheriff under an execution. Actual possession had been taken and held by the party claiming under the sale and deed of the sheriff for a sufficient length of time to bar a recovery by the original owner, if the possession could — 317 — be considered adverse to his title. In that case, to support the possession, the presumption of the regularity of the proceedings was allowed, but in this case no such possession is shown; there is no evidence in the case that the plaintiffs, or those through whom they claim, ever took actual possession of the land under that deed. The sale purports to have been made in 1813. The deed was made in 1830. This action was brought in 1890. No possession under it is shown. To hold that the recitals in that deed are prime facie evidence of the existence of the facts recited under these circumstances would violate every principle of law applicable to deeds executed under a naked power. The motion of the defendant to exclude ought to have been sustained. The eighth bill of. exceptions is based upon the action of' the court in giving four instructions asked for by the plaintiffs, and in refusing to give five of the eleven instructions asked for by the defendant. Whether the action of the court in giving the plaintiffs’ instruction numbered one, and in refusing to give the'defendant’s instructions numbered nine and ten was correct or not, depends upon the question whether the defendant’s possession of the land in controversy was under color of title, or only under claim of right or title. The defendant claimed the land in controversy under a. deed which conveyed a certain tract of land known as the Victoria Furnace property. The metes and boundaries of the land conveyed were not set out, but it was described as the same land which Crenshaw and others, the vendors of the defendant, had purchased from Jordan and others, and which the last named parties had purchased in a chancery cause, and which had been conveyed to them by a commissioner of the court, and to these deeds reference is made in the deed to defendant. The land conveyed to the defendant was described to be the right, title, and interest of the — 318 — vendors in and to the said Victoria Furnace property, as set forth and described in said deed from Henry W. Murray, special commissioner, &c. The land in controversy is not covered by the deed to the defendant, nor by the deeds of those under whom he claims. The evidence tends to show that, in the year 1866 or 1867, the then owners of the Victoria Furnace property had a survey made of the property claimed by them, and that the land in controversy was embraced within that survey; that the land in controversy had, prior to that time, been treated and used as a part of the Furnace property; that the purchasers of the land had been shown the survey and plat in question as showing the boundaries of the Furnace property before they purchased, but no reference was made to it in any of the conveyances of the Victoria Furnace property, nor was it ever conveyed by the metes and boundaries of the survey and plat referred to. The evidence also tended to show that, after the survey and map were made, the subsequent owners of the Furnace property claimed the land in controversy as a part of the Furnace tract and exercised acts of ownership upon it; but the evidence as to the continuity and extent of these acts of ownership 'is conflicting. During this period there is no pretense that the plaintiffs had actual possession of any part of the land in controversy. Upon this state of facts, or rather upon the evidence tending to show these facts, the defendant claimed that it had color of title to the land in controversy, and that its possession of part of the land was possession of all the land claimed by it, including the land in controversy. The deed of the defendant, as stated above, did not embrace the land in controversy. While the description was general, and the metes and boundaries were not given, the deed referred to the prior conveyances of the same property and under which the defendant claimed, and it is limited to the lands covered by and embraced in those deeds. The — 319 — survey and plat made by the owners of the Victoria Furnace property in 1866 or 1867, not having been made a part of the subsequent conveyances of the property, and the land not having been conveyed by the metes and boundaries given in that survey and plat, they cannot be looked to in ascertaining what land was covered by the defendant’s deed. They are not parts of the deed, and parol evidence in a court of law is not admissible to show that land not embraced in the deed was intended to be conveyed by it. To allow this would violate the settled rule that the terms of a writing cannot be contradicted or varied by verbal evidence. If there was a mutual mistake in the execution of the deed, it must be corrected by consent or in a court of equity, and until so corrected the rights of the parties are limited by the deed as written. The defendant must be held to have color of title only to the lands embraced within its deed. Color of title necessarily implies that the party relying upon it must claim under something that has the semblance of title. A private survey and map, never recorded, not referred to or made a part of the deed under which the party relying on it claimed, cannot be considered color of title. Creekmur v. Creekmur, 75 Va. 430, 438-40; Shanks v. Lancaster, 5 Gratt. 101; Angell on Lim., sec. 404; Sedgwick & Waite on Trials of Title, &c., secs. 762, 772; Hutchinson’s Land Titles, sec. 389. The survey and map were proper evidence to show the character of the defendant’s claim of right or title. If it and those under whom it claims were continuously in adverse possession of the whole, or any part of the land in controversy, for the statutory period prior to the institution of this action, then its title to the land to the extent that it and those under whom it claims had occupied, cultivated, enclosed, or otherwise excluded the owner from it, became perfect; but, if such occupancy did not extend to the whole of the land in controversy, its possession would be limited — 320 — to the land so held, and could not be extended to the residue of the land in controversy, as would have been the case if the possession had been taken and held under color of title, instead of claim of right or title only. Instruction No. one, given by the court at the request of the plaintiffs, was framed in accordance with the foregoing views, correctly stated the law, and was properly given. The defendant’s instructions Nos. nine and ten, being in conflict with these views, were properly refused. But if the survey and map, under the facts of this case, could be held to be- color of title, so that the possession of part of the land in controversy would have been the possession of the whole, no injury resulted to the defendant from the action of the court in its rulings upon the said instructions numbered one, nine and ten. The jury were of the opinion that the defendant and those under whom it claimed had not been in the adverse possession of any part of the land in controversy for fifteen years prior to the institution of this suit. Being unable to show that it had perfected its title to any part of the land in controversy by adverse possession, no harm could possibly have •resulted to it from the court’s refusal to instruct that a possession of part of the land in controversy was a possession of the whole, for if the court had so instructed, the result would have been the same in the view the jury took of the evidence. The long continued possession of the defendant, and those under whom it claims, of the Victoria Furnace property proper, that is, of the land it claimed, outside of the land in controversy, could not be regarded as possession of the land in controversy, even if its title papers covered, as they did not, the land in controversy. Where there are conflicting titles, if the junior .claimant settles within his boundary, but outside of the interlock or land in controversy, he gains no actual possession of the land — 321 — in controversy, whether the possession of the senior claimant be actual or constructive only. Where there is no controversy, the rule that possession of the part is possession of the whole, is to be taken in reference to the entire tract, but where there is a conflict of title it is to be taken in reference to such conflict. Without actual possession of some part of the land in controversy, the junior claimant can gain no possession of that subject against the better right of the senior claimant. If the law were otherwise, as was said by Judge Baldwin, the lawful owner might be disseised, not only without his knowledge, but without the means of acquiring it. Taylor v. Burnsides, 1 Gratt. 169, 200 (side page 196.) Without discussing in detail the action of the court in giving and refusing the other instructions given and refused, it is sufficient to say that under the facts of this case, the rulings of the court upon these instructions were correct. The judgment of the Circuit Court must be reversed, and the cause remanded for a new trial to be had in accordance with this opinion. Reversed.