Holladay v. Moore

Keith, P., delivered the opinion of the court. This was an action of ejectment brought to recover a parcel of land described. Upon the trial, the jury found a verdict in favor of the plaintiff, and the court rendered judgment for about one-half of the premises claimed by the plaintiff; and thereupon the plaintiff applied for and obtained a writ of error. The first assignment of error is based upon bill of exceptions Ho. 1, from which it appears that the plaintiff, in order to prove the issue joined on his part, asked the defendant, a witness in his own behalf, on cross-examination, “How far do you trace your title back under those whom you claim?” and “Did I understand you to say in your examination in chief that you claimed title under your deed from Mrs. Hannah and E. M. Venable, trustee?” [71] These questions were objected to by counsel for defendant, and the objection was sustained; but the bill of exceptions does not show what answer the witness gave to the questions, or would have given had he been permitted to answer by the court. In Taylor v. Commonwealth, 90 Va. 109, 17 S. E. 812, it is said, that an assignment of error in refusing to allow a witness to answer a certain question is unavailable in the appellate court where the record fails to show what the answer would have been. In Brock v. Bear, 100 Va. 562, 42 S. E. 307, it is said: “Where a question is asked a witness which he is not permitted to answer, and exception thereto is taken, the bill of exception must show what the party asking the question expected to prove, else the appellate court cannot tell whether or not the witness had any knowledge on the subject, or the question was relevant or material.” In American Bonding & Tr. Co. v. Milstead, 102 Va. 683, 47 S. E. 853, this court held that although counsel may explain the object of the question so far as to show its materiality, the ruling of the trial court refusing to permit the witness to answer will not be considered unless the bill of exceptions shows what was expected to be proved by the witness; and that the same rule applies to questions on cross-examination as to questions in chief. The same ruling has been made in numerous other cases in this court, but the citations made are deemed sufficient. The first assignment of error is overruled. When all the evidence for the plaintiff and the defendant had been put before the jury, the plaintiff in error, who Avas the plaintiff in the court below, asked for five instructions, of which the court gave numbers one, two and five, and refused to give numbers three and four. At the instance of the defendant the court gave six instructions, which were unexcepted to; but the plaintiff excepted to [72] the refusal of the court to give instructions three and four, and this ruling is set forth in bill of exceptions No. 3. It is true that an outstanding legal title in another, whether that other be a.stranger, or tire Commonwealth, or the defendant, will defeat an action of ejectment; but a plaintiff in ejectment must recover upon the strength of his own title, and to this rule there are few exceptions, none of which appear in the case before us. In Reusens v. Lawson, 91 Va. 226, 21 S. E. 347, this court said that an outstanding title sufficient to defeat a recovery in an action of ejectment must be a present, subsisting and operative title upon which the owner could recover if asserting it by action. In Merryman v. Hoover, 107 Va. 485, 59 S. E. 483, the same doctrine is thus stated: “An outstanding legal title in another than the plaintiff, at the time of the institution of an action of ejectment, breaks in upon and disrupts the plaintiff’s paper title and bars his recovery. Nor can the plaintiff make good the defect by the subsequent purchase of such outstanding title.” “A defendant in ejectment may rely upon an outstanding legal title in the Commonwealth at the time of the institution of the action, and thereby defeat the plaintiff.” We think the third instruction states a sound proposition of law, and that the evidence was such as to make it proper that it should have been given to the jury. The fourth instruction should also have been given. The jury might well have inferred from the evidence adduced on behalf of the plaintiff in 'error the prior peaceful possession of the plaintiff, or those under whofn he claims, of the land in the declaration mentioned, unless the defendant could show a better title in himself or another, such as is described in instruction No. 3. We are, therefore, of opinion that the circuit court erred in refusing instructions Nos. 3 and 4. [73] We do not deem it proper to indicate any opinion upon the evidence, further than it was necessary to do so in ord'er to pass upon the propriety of the instructions. The case must be reversed and remanded for a new trial not in conflict with the views expressed in this opinion, at which trial, if the evidence should be substantially such as was adduced upon the former trial and instructions Nos. 3 and 4 are again offered, they should be granted. Reversed.