#### *Kincheloe v. Tracewells.

July Term, 1854,

Lewisburg.

(Absent Daniel, J.)

i. Unlawful Entry—Removal of Cause.*—A warrant for unlawful entry, &c.. is a civil action, which may be removed, on motion, without notice, from the County to the Circuit court, if it has remained undecided for a year or upwards : And the time is to be estimated from the organization of the court summoned to try it.

2. Unlawful Detainer—What Plaintiff Must Prove. - To entitle the plaintiff to-recover upon a warrant of unlawful detainer, he must prove that the defendant withheld the possession at the date of the warrant. But if the warrant does not state the withholding of the possession by the defendant, that may be aided by the complaint which states the fact.

3. instructions—Partially Erroneous—Court Need Not Modify.†—Upon a motion by plaintiff to instruct the jury to disregard all the documentary evidence introduced by the defendant, of which some part is legal and other illegal, the court may properly overrule the motion, without undertaking to state to the jury which is legal and which is illegal.

4. Adversary Possession—Interlock—Case at Bar.‡—The boundaries of two coterminous owners of land interlock; and the party claiming under the elder patent, enters upon his land outside the *288interlock, and cultivates and improves it, holding continued possession thereof. The party claiming under the junior patent, enters on his land outside the interlock, and clears and improves it and lives upon it, the land in the interlock being uncleared ; and he exercises such continued acts of ownership over the whole land lying within the interlock as constitutes an adversary possession thereof, though but a part of it is cleared and enclosed; and after thus living on his land and acting for upwards of five years, he dies in possession, and his heirs continue to hold possession, and claim and exercise like acts of ownership over the land within the interlock. Held:

1. Same—Same—Same.—The possession of the heirs is not limited to their inclosure.

2. Same—Same—Same—Entry Tolled by Descent.— The entry of the party holding under the senior patent is tolled by the five years’ possession and descent cast; and he cannot recover by a warrant of unlawful detainer.

5. Transfer of Land in Adversary Possession of Another —Effect.§—A deed conveying land then, and continuing to be, in the actual adversary possession of another, cannot operate to pass the title to the grantee.

*6. Entry on Land—What Possession Necessary to Bar Right.—In 1831 and until the passage of the act of March 30th, 1837, no possession short of fifteen years, unaided by a descent cast, would bar the entry of one having right or title to the land.

7. Adversary Possession—Claim of Title Necessary —Color of Title Unnecessary.ǁ—An entry upon land in the possession of another, in order to operate an ouster and give a possession to the party entering, must be with claim of title : But the claim of title need not be under a deed or other writing ; or if it is under a deed, it is not necessary that his possession shall be restricted to what shall prove to be within the precise boundaries of his deed.

*2898. Unlawful Detainer—The Issue.¶—Whatever may be the effect in ejectment or a writ of right, of the parts in possession haying taken that possession under a mistake as to the true boundary of his land ; in a warrant of unlawful detainer, the question is whether in fact such entry had been made and possession taken, and how long before the institution of the suit; and the mistake if it existed, is wholly unimportant.

9. Instructions—Obscure — Misleading — Irrelevant.**— The court should refuse to give an instruction, where it is obscure and calculated to mislead the jury ; or where it asks the court to decide upon a fact in issue in the cause ; or where it is irrelevant or not applicable to the evidence.

so. Appellate Practice — Harmless Error of Lower Court.††—Though the court below should err in deciding upon a proposition submitted to it, yet if it can be seen from the bill of exceptions, that the decision did not and could not affect the merits of the case, it is not ground for reversing the judgment.

On the 26th of May 1849 Nestor Kincheloe made complaint, that Mary, Moses, Aaron and Wesley Tracewell had unlawfully turned him out of, and against his consent withheld from him, the possession of a certain tenement containing by estimation twenty-five acres of land lying in the county of Wood, whereof he prayed restitution. This complaint was accompanied by his affidavit to the truth of the facts stated in his complaint. On the same day a warrant was issued by a justice of the peace for the *290county of Wood, which recited that Kincheloe had made complaint that the Tracewells unlawfully and against his consent withheld from him the possession of a certain tenement, &c., and directed the sheriff of the county to summon the parties to appear at the court-house of this county on the 7th day of June 1849, to answer the complaint; and also directed the sheriff to summon two justices and a jury to appear there at the same time to try the complaint.

*The court was organized on the day appointed, and an order was made directing the surveyor of the county to make a survey of the land in controversy; and it then adjourned until the 23rd of the same month. The court seems afterwards to have adjourned until the 17th of August, when the defendants moved the court to quash the warrant and complaint; which motion was overruled. A jury was then impanelled for the trial of the cause, which fathed to agree in a verdict and was discharged; and the cause was continued for a trial to be had at the next term of the court. At the July term 1850 of the County court of Wood, on the motion of the plaintiff, and because the cause had remained in that court for more than one year without being determined, an order was made removing it to the Circuit court of the county.

At the October term 1851 of the Circuit court, the defendants again made a motion to quash the complaint and warrant, which was overruled: And at the November term 1852 a jury was impaneled to try whether the -defendants, at any time within three years next before the exhibition of the complaint filed by the plaintiff in the cause, did unlawfully enter upon the tenement in the said complaint mentioned, and turn the said plaintiff out of possession thereof; and whether the defendants continued to hold the possession thereof at the time of the exhibition of said complaint.

On the trial the plaintiff claimed under a patent bearing date the 20th daj^ of October 1785; by which there was granted to Mark Hardin nine hundred and nine acres of land lying on the lower side of the Little Kanawha river, about six miles above its mouth, beginning at a sugar tree at the mouth of Grape creek, and running down the river. Hardin sold and conveyed this land in 1805 to Hugh Phelps, who entered *upon it, but outside of the land in controversy, and cultivated and improved it. In 1821 Phelps conveyed one hundred and fifty acres of his tract of land to Vandiver and Marsh, who took possession of it, and cultivated and improved it. This tract, it was insisted, embraced the land in controversy, but their improvements were not upon that part of it. The land conveyed to Vandiver and Marsh passed by several intermediate conveyances to John Ralston in September 1832; and he conveyed it to the plaintiff Nelson Kincheloe in October 1842. There was no doubt that the successive owners of this land from the time of Hugh Phelps had been in the constant occupation and cultivation of it; but no part of their improvements was upon the land in controversy. And there is little reason to doubt that the boundaries of Hardin’s patent, and consequently of the plaintiff’s conveyance, included this disputed land.

The defendants claimed under a patent to John Gibson for one thousand acres of land, bearing date the 20th of October 1785, the same date as that of Hardin. This land was also on the Little Kanawha river, and called to include the mouth of Tygart’s or Grape creek, and run up the river.

John Gibson died, leaving three children his heirs; and his son John is alleged to have transferred his interest in this land to William Laing: but the proof on this point is defective. There was an allotment of a part of the tract to the children of one of John Gibson’s heirs, under a decree of the County court of Wood; and there were deeds of partition executed by attorneys in fact between James Gibson and Laing in December 1830, by which the land next to that held by the plaintiff was allotted to Laing. In August 1831 Laing by his attorney and agent sold to Arnold Tracewell one hundred acres of his land, and executed to him a bond by which he bound himself to convey *the same to him. This one hundred acres was described as lying on the Little. Kanawha, immediately above the mouth of Tygart’s creek, beginning at a sugar tree on the bank of the river; and one of its lines called to run to a corner of Kincheloe, and thence with the "line of the tract owned by the plaintiff at the time of the trial, to the beginning. Laing in May 1833 conveyed his whole tract to James M. Stephenson; and in Aug'ust 1834 Stephenson conveyed to Tracewell the one hundred acres purchased by him from Laing.

Arnold Tracewell entered upon the land purchased by him of Laing in 1831, all of it then being in forest and uncultivated, and in August of that year had a corner marked, and a line run and marked from thence to the beginning corner of Hardin’s survey on the river at the mouth of Tygart’s creek. This corner and line is that claimed by the defendants in this cause, and includes all the land in controversy in their tract. After running the exterior boundaries of said tract, Tracewell, in August 1832, moved upon the land, taking with him his wife and two children, and continued in possession claiming up to the marked boundaries, until the year 1834, when he received his deed for the land; and continued the possession in the same manner, claiming the same marked boundaries, up to the 22nd of November 1839; at which time he died.

In 1832 or 1833 Tracewell made some thousand rails upon the land in controversy, and sold them. He also sold timber from it to make some eighty thousand staves; and in 1837 he took cord-wood from it and also tan-bark. Whilst he was thus living on the land he bought of Laing, he made sugar on this land in controversy; and *291since his death the defendants rented out the sugar camp: And during Arnold Trace-well’s life time the family obtained their fire-wood off this disputed land; and during all that time John Rolston, *under whom the plaintiff immediately claims, and who lived on the land now owned by the plaintiff, was cognizant of the aforesaid acts of ownership, and made no objection thereto: He set up no claim to the disputed territory; and recognized the corner and line marked and run by Tracewell as the dividing line between them.

The family of Arnold Tracewell, who were the defendants, continued to reside upon the said land, claiming the boundaries their ancestor had claimed, exercising acts of ownership over the land in controversy, and took timber therefrom for a barn, until about the year 1845 or 1846, at which time some person (supposed to be the plaintiff in this suit) cut and made some rails upon it, w'hich the defendants hauled off: And some of the family attended at the August quarterly term of the court for that year, for the purpose of indicting the plaintiff for his alleged trespass, when they were met by the plaintiff, who agreed that if they would not try to indict him, he would not trouble them any more for that land: And no indictment was made, nor was there any further difficulty until the institution of this suit.

All the evidence having been submitted to the jury, the plaintiff, after the opening argument had been concluded, and one of the counsel for the defendants was about concluding his argument, moved the court to exclude from the jury all the documentary evidence offered by the defendants, and purporting to deduce title from the patent of Gibson to the defendants, upon the ground that the same did not connect the defendants with the legal title from Gibson. But the court overruled the motion ; and the plaintiff excepted.

The defendants then moved the court to give three instructions, which are not stated. The court refused to give them, because they were not considered in all *respects applicable to the case; but in lieu thereof gave the following:

Rirst. If the jury shall believe, from the evidence, that the deed to the plaintiff, and the several deeds of the persons under whom he claims (commencing with the deed of the attorney of Mark Hardin the patentee, and the patent to the said Hardin), embrace the land in controversy, and that from the time the tract claimed by the plaintiff was severed from the residue of the land contained in the said patent; that the several persons under whom he claims according to the terms of their deeds resided on and improved and cultivated the same, but if none of them resided on, improved or cultivated any part of the land in controversy, but that the same continued to be a forest, and in a state of nature until Arnold Trace-well, the ancestor of the defendants, entered upon the said land under his deed from James M. Stephenson; and if they shall believe that the said one hundred acres, conveyed by said deed was plainly marked and bounded; that it embraced the land in controversy, ancf that the said Arnold Tracewell by virtue of his said deed entered upon the said land in controversy, claiming the same as his own, embraced by the deeds under which the plaintiff claims, and also embraced in the deed under which the said Tracewell entered with intention to take. possession of all within his metes and bounds (if the said land in controversy should appear from the evidence to be unimproved forest lands), and took and held actual adverse possession thereof by residence, improvement, cultivation or other open, notorious and habitual acts of ownership, such possession operated as a disseizin of the person owning and in possession of the land claimed by the plaintiff to the interference, nowithstanding the said Trace-well may not have inclosed and cultivated the whole of the land in controversy. And if he so continued in the possession of the land in controversy under his said claim until the time of his death ; if such continuous possession was five j^ears or upwards, and so died in such possession ; that on his death there was a descent cast upon his heirs, which would toll the entry of the plaintiff or those under whom he claims, then being the owner of the land now claimed by the plaintiff; and if the said defendants continued the possession as held by their said ancestor and had not abandoned the same at any time before the commencement of the present suit, the plaintiff could not, under such circumstances, maintain a warrant for unlawful entry.

Second. If the jury shall believe from the evidence, that the said Arnold Tracewell, the father of the defendants, entered upon the land in controversy and took possession of it at the time and in the manner supposed in the first instruction, and that he remained in such possession for more than three years after he so took the possession; if the shall also believe that the defendants, at the time that their father so took possession, were infants of tender years, they cannot be considered so responsible for any act that he did upon said land as to enable the plaintiff to maintain an unlawful entry against such infants for such acts.

Third. If the jury shall believe that the said Arnold Tracewell took and held adverse possession of the land in controversy at the time and in the manner supposed in the first instruction, and died so possessed, and that the defendants took possession after his death in the manner in which he had so taken and held'the same, and had at no time abandoned said possession, and were in the actual adverse possession of said land in controversy at the time of the conveyance to the plaintiff, then his deed was inoperative for the land in controversy so held in adverse possession.

Which instructions were objected to by plaintiff, but were given by the court. *292To which opinion of*the court giving said instructions the plaintiff excepted. Thereupon the plaintiff moved the court to give the following instructions:

No. 1. If the jury are satisfied that Hugh Phelps entered under the deed from Hardin, dated 12th day of July 1805, upon the land described in said deed, built a mill, caused a portion of it to be fenced and cultivated by his tenants, intending in so doing to assert his right to the possession of the entire tract, then such acts on the part of Phelps, the same land being wholly unoccupied by any other person, gave him the possession of said tract of land, coextensive with the boundaries of his deed, which possession would continue in Phelps and his assigns (until there was an actual entry upon some part of said tract, under color of title, with an intention to oust said Phelps and those claiming under him, which intention must be evidenced by-building, residence, inclosure or other open and notorious acts of possession, equivalent to residence or cultivation or inclosure), and such possession - so taken by Phelps, and continued for the period of seven years, would be a bar to any right of entry on the part of the defendants or their ancestor, or any other person claiming under the Gibson patent, in the year 1831 or subsequently, the patent of said Gibson being of the same date of the Hardin patent under which the plaintiff claims.

Nos. 2 & 3. Ask the court to instruct the jury that Arnold Tracewéll, up to the making of the deed from Stephenson in August 1834, was bounded and abutted by his title bond on and by the line of Daniel Kincheloe, and that the said Kincheloe, and those claiming under him living on his tract of land called for by said title bond, the law adjudged him or them in possession to his boundary called for by the bond of Trace-well, and that occasional acts of cutting-timber, getting tan-bark, making rails or making sugar, outside *of the calls of said title bond by said Trace-well, unaccompanied with a paper title, either legal or colorable, would not confer on the said Tracewell any actual possession within the bounds of said Kincheloe and outside of the boundaries of said title bond, and that such acts up to the time of making of the deed in August 1834, would be adjudged in law to be trespass. That until the making of the deed in August 1834, the said A. Tracewell was bounded and abutted by the line of said Daniel Kincheloe, and that after the making of said deed, it calling for a course common to the deed of Kincheloe and the line of Kincheloe, and the line of Kincheloe called for being marked, are, together with the title bond and the parol evidence before them, to be weighed, and if on the whole evidence they are satisfied the call for, and the marking of the beech, were intended to be in Hardin’s or Daniel Kincheloe’s line, and that the surveyor and said Tracewell marked said beech, supposing it to be in Hardin’s or Kincheloe’s line, then, it being marked by mistake, the jury would reject such mistaken mark, and run the line by the other calls, the course and marked line of Tracewell’s deed.

No. 4. If the jury believe that A. Trace-well had taken possession at the time and manner indicated in the first instruction given, as early as August 1834, or in the early part of that year, and had cleared and improved upon the land in controversy with an intention to take possession, according to the metes and bounds of his deed, and did such other open and notorious and habitual acts of ownership upon the said land in controversy, as would give him an actual adverse possession, according to the facts supposed in the first instruction given, and so continued in possession, and died in said possession in November 1839, and the defendants, his children and heirs, held and retained the possession so taken by him, then the entry *of the plaintiff, and building of the fence inclosing a part of the land in controversy within the bounds of his deed, would not so operate as to divest the defendants of their possession of the land in controversy according to the metes and bounds of their deed, and confine it to their actual inclosure. But if the said A. Tracewell had not been in possession of the land in controversy for five years before his death, so as to cast a descent upon the defendants, and the said Kincheloe entered upon and inclosed a part of the land in controversy under his title, he would thereby divest the defendants of the possession of all the uninclosed lands within the interlock, provided that the said A. Tracewell, in his life time, and the defendants after his death, had not been, as is supposed in the first instruction, in the actual and continued adverse possession of the land more than seven years; but if the jury shall believe that, at the time the said Kincheloe entered and inclosed part of the interlock, that the said defendants or their ancestor had not the actual possession of the said land long enough to toll the entry of the said Kincheloe, that the defendants again entering upon the possession of said Kincheloe thus regained, would be a trespass; and if they continued to hold the possession, this action may be maintained against them, provided it is brought within'three years after they regained possession.

No. 5. The patents being read and there being no parol evidence offered to fix any point whereby the survey of Gibson can be located, nor any evidence other than appears on the face of the papers, the plaintiff’s counsel moved the court to instruct the jury what point is by them to be adopted in laying down said survey on the plat, or in other words, how far below the mouth of Tygart’s creek they are to fix the beginning corner required.

No. 6. Move the court to instruct the jury that *when there are two patents of the same date, and those claiming under one enter and' hold under the same for twenty years, from 1805 to 1833, then such title should prevail against *293the other patent of same date under which no possession was had until 1833.

All of which instructions the court refused to give, and the plaintiff again excepted.

There was a verdict in favor of the defendants: Whereupon the plaintiff moved for a new trial upon the ground that the verdict was not sustained by the evidence; and on the further ground of a misdirection of the jury by the court. But the court overruled the motion and gave judgment for the defendants; and the plaintiff again excepted: And upon his application this court granted a supersedeas to the judgment.

Price and Fry, for the appellant.

Pisher, for the appellees.

*

Civil Actions—Removal from County to Circuit Court.—See *foot-note*to Harrison v. Middleton, 11 Gratt. 527, and cases there cited, all of which cite the principal case. See generally, monographic *note*on “Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 352.

†

Instructions—Partially Erroneous—The Court Need Notflodify.—In Green v. Crain, 12 Gratt. 254, the principal case and Harvey v. Epes, 12 Gratt. 153, were cited as holding that the courts may decide upon motions to instruct the jury just as they are made, and are under no legal necessity of shifting or modifying such motions so as to separate and withhold the erroneous portions from the jury.

But, though an instruction as asked is not wholly correct, yet, if the general refusal of it may mislead the jury, the court should accompany the refusal with an explanation to the jury, or should give them an instruction stating the correct proposition, *footnote*to Peshine v. Shepperson, 17 Gratt. 473.

But see, on the whole subject, monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

Evidence —Objection to.-A general objection to evidence, part of which is admissible and part inadmissible, will be overruled by the court; the obj ection should specifically point out the objectionable part of the evidence in order to have it excluded. Sulphur Mines Co. v. Thompson, 93 Va. 307, 25 S. E. Rep. 232, citing the principal case.

‡

Adversary Possession — Interlock. — See mono-graphic *note*on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.

Same—Same—“The Open Question.”- -When the senior patentee is in actual possession of a part of his grant, but outside of the interlock, at the tira e of the junior patentee, does the latter, by an actual possession of a small part of the interlock, gain a prescriptive title to hisperKs *positio*only, or to all of the land within the interlock? This is known as “the open question” in Virginia. Several articles have been written on this subject in the Virginia Law Registers. See 3 Va. Law Reg. 763 : 3 Va. Law Reg. 843; 4 Va. Law Reg. 8; 4 Va. Law Reg. 138: 5 Va. Law Reg. 810.

In Garrett v. Ramsey, 26 W. Va. 376, Judge Snyder. delivering the opinion of the court, said: “I. therefore, conclude that the *muere*or proposition under discussion should be decided in the affirmative: that is, where the elder grantee is in actual possession of the land covered by his grant outside of the interlock and the adverse or junior claimant is in the actual possession of apart of the land in the interlock claiming the whole, he will in contemplation of law and by force of the said statute be treated as being in the actual possession of the whole land embraced within his grant or color of title. The foregoing conclusion is fully sustained *288by the able and instructive opinion of Judge Baldwin in Taylor v. Burnsides, 1 Gratt. 190. It is also sustained by the opinion of Judge Lee, as I understand it, in the case of Koiner v. Rankin, 11 Gratt. *424,*and by the decision of the court in Cline v. Catron, 22 Gratt. 378, 392, though the question was not directly presented by the record in the two latter cases.” In this decision, Johnson, P., and Woods, J., concurred, Green, J., dissenting. Thus the question would seem settled as far as West Virginia is concerned.

But the Virginia courts maintain that the cases cited by Snyder, J. (see preceding paragraph), do not decide this question. In Turpin v. Saunders, 32 Gratt. 38, Staples, J., in delivering the opinion of the court, said: “I did not sit in the case of ‘Cline’s Heirs v. Catron,’ having been counsel in the lower court. But I am confident this question *(i. e„*“The Open Question”) did not arise either upon the evidence or upon any of the instructions propounded on either side. It is obvious that Judge Anderson did not intend to lay down any such doctrine as the reported opinion would seem to indicate. What I take it he intended to say was, that when the j unior grantee has actual possession of a part of the interlock, and the senior grantee has actual possession of no part of his tract, then the possession of the junior grantee is not confined to his *pedis vositio,*but is coextensive with the boundaries called for in his grant. A proposition of law, sound in itself, and sustained by the authorities. It is, however, a very different matter, where, as in this case, the senior grantee was in possession of a part of the land within the limits of his grant, although outside of the interlock. The question involved in this latter proposition was discussed by Judge Baldwin in Taylor’s Devisees v. Burnsides, 1 Gratt. 165, 196 ; and again alluded to in Overton’s Heirs v. Davisson, 1 Gratt. 211, 224; but the judges being divided in opinion, it was not decided. It was also mentioned by Judge Lee in Kincheloe *v. Tracewells, 11 Gratt. 587, 608,*and again left undecided. So that it is still an open question in Virginia. As a decision of the point is not required in the case before us, it is better it shall so remain until a thorough discussion can be had before a full bench. What is now said is only said for the purpose of removing an erroneous impression, which has gone abroad with respect to what was actually decided in Cline’s Heirs v. Catron.”

Adversary Possession.—On the general subject of adversary possession, see the principal case also cited in Brown v. Caldwell, 23 W. Va. 194; Witten v. St. Clair, 27 W. Va. 772; Taylor v. Philippi, 35 W. Va. 560, 14 S. E. Rep. 132; Olinger v. Shepherd, 12 Gratt. 478.

See generally, monographic *note*on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.

§

 Transfer of Land in Adversary Possession of Another —Effect.—See, in accord, Early v. Garland, 13 Gratt. 1; Carrington v. Goddin, 13 Gratt. 599. See also, Tabb v. Baird, 3 Call 475; Hall v. Hall, 3 Call 488. But, by Code of 1849, it was enacted that “any interest in or claim to real estate may be disposed of by deed or will” (Va. Code 1849, ch. 116, sec. 5; Va. Code 1887, sec. 2418). See Carrington v. Goddin, 13 Gratt. 587.

ǁ

 Adversary Possession—Claim of Title Necessary-Color of Title Unnecessary.—In Creekmur v. Creekmur, 75 Va. 440, the principal case was cited to the point that an entry to operate as an ouster must be accompanied with claim of title, but that the claim may be wholly independent of any writing; and that, even where the party entering claims under a deed or other writing with a specific boundary, he may go outside of his boundary and acquire adversary possession of land not included in his colorable title. Again, in Va. Midland R. Co. v. Barbour, 97 Va. 122, 33 S. E. Rep. 554, the court (citing the principal case, Creekmur v. Creekmur, 75 Va. 430, and Sulphur Mines Co. v. Thompson, 93 Va. 319, 320, 25 S. E. Rep. 232) said that the question in cases of adverse possession is not whether the claim asserted is good or bad, but whether there has been a hostthe claim of title and continuous possession under it for the statutory period; nor is it necessary that such hostthe claim should be under color of title, that is under a deed or other writing. See, in accord, the principal case also cited in Oney v. Clendenin, 28 W. Va. 54; *foot-note*to Koiner v. Rankin, 11 Gratt. 420.

On this subject, see further monographic *note*on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.

Same—Claim of Title—Extent of Possession—The principal office of a claim or color of title is to define the boundaries and fix the extent of the adverse holding. If it is a *mere*claim of title—that is, a mere assertion of right without any paper title —the adverse holding will be limited to the actual *289enclosure of the claimant. But, if it is a deed or other paper title, and the possession is exclusive, it will be regarded as coextensive with the boundaries contained in such deed or paper. The color of title however may be good or bad, legal or equitable.

The principal case is cited in support of this proposition—-or some portion of it in Core v. Faupel, 24 W. Va. 245, 247; Storrs v. Feick, 24 W. Va. 609; Oney v. Clendenin, 28 W. Va. 53 (citing also Taylor v. Burnsides, 1 Gratt. 165; Shanks v. Lancaster, 5 Gratt. 110; Overton v. Davisson, 1 Gratt. 211; Koiner v. Rankin, 11 Gratt. 420; Adams v. Alkire, 20 W. Va. 480; Garrett v. Ramsey, 26 W. Va. 345): Congrove v. Burdett, 28 W. Va. 225. See also, the principal case cited in Garrett v. Ramsey, 26 W. Va. 369; Parkersburg, etc., Co. v. Schultz, 43 W. Va. 470, 27 S. E. Rep. 255; Teass v. St. Albans, 38 W. Va. 13, 17 S. E. Rep. 405.

See generally, monographic *note*on “Adversary Possession" appended to Nowlin v. Reynolds, 25 Gratt. 137.

¶

 Unlawful Detainer—General Verdict.—Gorman v. Steed, 1 W. Va. 15, was a case of unlawful detainer in which there was a verdict for the plaintiff as follows: “We the jury find that the defendant unlawfully withholds from the plaintiff, the possession of the premises in the within summons mentioned; and that he has not so held the possession thereof for three years prior to the institution of this suit, and therefore we find for the plaintiff.” Objection was made that the verdict was not responsive to the issues, because it fathed to find that the defendant unlawfully withheld the premises in question at the time of the institution of the suit. But the court said: “This objection is not well taken, because the verdict is substantially a general verdict for the plaintiff below. And a general verdict, in effect, finds every essential fact necessary to authorize it, and withholding the possession at the date of the institution of the suit, is one of those facts. Olinger v. Shepherd, 12 Gratt. 462; *Kincheloe v.*Tracewells, *11 Gratt.*587.”

See generally, monographic *note*on “Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 353.

**

Instructions—Misleading.—See principal case cited and approved in Campbell v. Hughes. 12 W. Va. 209. See also, *foot-note*to Boswell’s Case, 20 Gratt. 860; monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

††

Appellate Practice—Harmless Errors in the Lower Court.—The great majority of Virginia and West Virginia decisions seem to uphold the proposition of the principal case, that where it clearly appears affirmatively that an error of the lower court could not affect the merits of the case, nor in any way be prejudicial to the party appealing, the appellate court will not reverse the judgment on the ground of such error. See cases collected in *foot-note*to Binns v. Waddill, 32 Gratt. 588.

But it seems also in accord with the weight of authority that if a misdirection or other mistake of the court appear in the record, it must be presumed that it affected the verdict of the jury, and is therefore a ground for which the judgment must be reversed, unless it plainly appear from the whole record that the error did not and could not, have affected the verdict. Kimball v. Borden, 95 Va. 207, 28 S. E. Rep. 207, citing the principal case; Danville Bank v. Waddill, 27 Gratt. 448; Edmunds v. Harper, 31 Gratt. 637, 644; Richmond Ry., etc., Co. v. Garthright, 92 Va. 627, 631, 24 S. E. Rep. 267; 4 Min. Inst. (4th Ed.) 937.

For the more specific proposition, that, where there is error in giving, or refusing to give, certain instructions ; or in admitting, or refusing to admit, certain evidence, if it is manifestly evident from the record that the appellant could not have been prej u diced thereby, such error can afford no ground for a reversal of the judgment, see principal case cited in Bank v. Waddill, 27 Gratt. 450; Binns v. Waddill, 32 Gratt. 592; Snouffer v. Hansbrough, 79 Va. 180; Payne v. Grant, 81 Va. 173; Bernard v. R. F. & P. R. R. Co., 85 Va. 794, 8 S. E. Rep. 785; Reusens v. Lawson, 91 Va. 258, 21 S. E. Rep. 347; Richmond Ry., etc., Co. v. Garthright, 92 Va. 631, 24 S. E. Rep. 267; Nicholas v. Kershner, 20 W. Va. 263. But there is not perfect harmony of decision on this subject in either Virginia or West Virginia.

As to the rule of action of a court in reversing a judgment on account of erroneous instruction, see *foot-note*to Colvin v. Menefee, 11 Gratt. 87, where there is an extended review of the Virginia and West Virginia decisions in point. Further remarks here, on this subject, would be superfluous.

As to when there will be a reversal of judgment because of error in admitting, or excluding, evidence, s*ee foot-note*to Early v. Wilkinson, 9 Gratt. 68.

In Western M. & M. Co. v. Virginia, etc., Co., 10 W. Va. 295. the court, citing the principal case as authority, lays down the proposition, that, though the lower court errs in refusing to allow an amended bill to be filed, yet, if such error does not affect the merits of the case, nor in any way injure the party tendering such bill, it is no ground for reversing the decree of the lower court.

See principal case also cited in Burtners v. Keran, 24 Gratt. 73.

LEE, J.

That a warrant for a forcible or unlawful entry upon lands and tenements and turning another out of possession, or for unlawfully and against his consent withholding possession from the party entitled, under our statute, is a civil action, which, by virtue of the act of the 28th of March 1843, may be removed to the Circuit court, on motion without notice, after it shall have remained undecided in the County court for the period of one year or upwards, has been decided by this court, after full argument during the present term, in the case of Harrison v. Middleton, supra 527. I refer to the opinion delivered by Judge Moncure in that case, for a very full and (to me) satisfactory exposition of the reasons which conduced to that conclusion.

By the provisions of the act referred to, any two justices of the peace of the county may meet at the court-house, and form a court for the trial of such a *warrant; when so met and a court is so constituted, it is declared to be a court of record, with power to issue all proper process to bring before them witnesses or other persons whose attendance may be lawfully required by them; and to adjourn from day to day and from time to time till the trial is ended. The sheriff of the county is required to attend upon the justices constituting it, and to execute their orders. The clerk of the County or Corporation court is also to attend them, to record their proceedings and file away the papers exhibited. A jury is to be impaneled and charged in the manner prescribed by the act; the justices are to suffer the parties to be heard by counsel; to admit all legal evidence offered on either side; to decide all questions of law properly submitted to them; to admit bills of exceptions to their opinions; and in all respects conduct the trial according to the usages of courts of law within this commonwealth. When a verdict has been rendered, the court is to render judgment upon it in favor of the plaintiff or the defendant, according to the nature of the finding ; or it ma3' for proper cause set it aside, and grant a new trial, as in other civil causes (Sess. Acts, 1825-6, p. 26, § 3) ; in which latter case,the cause is to be continued to the regular term of the County or Corporation court, and the new trial is to be had therein. The judgment of the jrtstices so rendered is to be regarded as a judgment of the court of the county, and is to be in all respects executed in the same manner as if it had been the judgment of such court at an ordinary term; and either party thinking himself aggrieved, may have the same remedy, by writ of ^rror or supersedeas, as if it had been the judgment of such court: and if it be reversed, the cause is to be remanded to such court, where necessary. I think it clear, therefore, that a court so constituted is to be regarded as a special County court for the trial of the *particular cause ; and that when two or more justices meet and form such a court, the case is to be regarded for the purpose of the act above referred to, and all other legal purposes, as pending in the County court; and that after the expiration of one year from that time, if it remain undecided, it may be removed to the Circuit court, according to the provisions of that act.

I think the objection which has been urged on the part of the defendants to the warrant is without any valid foundation. The complaint made and verified by the party under oath, may be looked to in aid of the warrant; and taking them in connection, they may be fairly construed as being for an unlawful entry and turning the plaintiff out of possession of the tenement in controversy, and unlawfully holding the plaintiff out of possession at the institution of the suit. The withholding of the possession by the defendant at the emanation of the warrant, was a fact as important to be found by the jury as that of the original turning out, to entitle the plaintiff to a recovery. I think the motion to quash was properly overruled.

The plaintiff’s motion to exclude all the documentary testimony offered by the defendant, came at a late period, not having been made until all the evidence had been given, and after the opening argument for the plaintiff had been concluded and that of one of the defendant’s counsel about closed; but if the motion is to be treated as a motion to instruct the jury to disregard the evidence, and in that view deemed admissible when made, and waiving the question whether the grant to Gibson and the conveyance from Baing to Stephenson being referred to in the deed from Stephenson to the ancestor of the defendants, as instruments of title under which, together with the title bond from Baing and the deed from Stephenson, the defendants claimed, might not properly have been given in evidence alona: with the title bond and deed, *for the purpose of proving such a possession under an honest and bona fide claim of title as might ripen their claim, however defective originally, into a perfect title, still, for the purpose of proving such a possession and thus making out a bar under the statute, the title bond and deed from Stephenson were legitimate and proper testimony, though the defendants *294did fail to connect themselves with the grant to Gibson; and as the motion was to exclude all the documentary evidence of the defendant, it was too broad. Nor was the court bound to discriminate between the different documents offered; but might properly, as it did, overrule the motion for want of a proper designation by the plaintiff of the particular instruments of evidence which ought to have been excluded.

Of the first instruction given to the jury, complaint is made that its meaning is obscure ; and that however understood, it states the law incorrectly. The instruction is perhaps somewhat deficient in perspicuity ; but if it be examined with some little care and attention, I think its meaning will be sufficiently' apparent. Nor is there any such obscurity about it as would render it unintelligible to a jury of ordinary intelligence. It in effect asserts the following propositions: That if the instruments of title under which the plaintiff and the defendants claimed, respectively, embraced the land in controversy; and if the plaintiff and those under whom he claimed had entered upon and taken actual possession of that part of the land embraced within their boundary outside of the interlock with the defendants’ boundary; and if the ancestor of the defendants, under his deed, entered upon the land in controversy (that is, upon the part within the interlock), claiming it as his own, the same being embraced by his deed, and took and held actual adversary' possession thereof by residence, improvement, cultivation or other open, notorious and habitual *acts of ownership, coextensive with the limits of the interlock, the land within the same having continued to be forest and in a state of nature, until so entered upon and taken possession of by the defendants’ ancestor, such entry and possession of the latter operated a disseizin of those under whom the plaintiff claimed, to the extent of the interlock, although the ancestor of the defendants may not have actually inclosed and cultivated the whole of the land in controversy. And that if he continued in possession uninterruptedly, for five years or upwards, and died so in possession, upon his death a descent was cast upon the defendants, his heirs, which would toll the entry of those so disseized; and that if the defendants continued to hold such possession uninterruptedly from the death of their ancestor until the institution of this suit, the plaintiff could not maintain his action. So understood, I cannot perceive any well founded objection to the instruction. It presupposes an ouster by the defendants’ ancestor of the plaintiff to the whole extent of the premises in controversy, the land embraced by the interlock; and affirms that the adversary possession which constitutes it must not of necessity be evidenced by actual inclosure and cultivation, but may be by other open, notorious and habitual acts of ownership, sufficient to amount to actual possession. That such possession may be in this mode is sufficiently established by the cases of Taylor v. Burnsides, 1 Gratt. 165, and Overton v. Davisson, Ibid. 211; and is also supported by the authority of the cases of Ellicott v. Pearl, 10 Peters’ R. 412; and Ewing’s lessee v. Burnett, 11 Peters’ R. 41. That the premises in controversy' were embraced by both of the conflicting claims, and that possession had been taken by those under whom the plaintiff claimed, of that part of the land claimed by them without the limits of the interlock, would not render actual in closure or fencing in, *and actual cultivation, indispensable to enable the defendants or their ancestor to acquire possession of the land within the interlock. For this purpose the exercise of acts of ownership, if they were of the character contemplated by the law as sufficiently importing use, occupation and enjoyment, would suffice: and the possession w’hich they would confer would be of a part or the whole, according as they were restricted to a part, or coextensive with the entire limits of the interlock.

It is supposed, however, that the instruction was intended to present the question raised in the case of Overton v. Davisson, ubi supra, and upon which the opinions of the judges then constituting the court, were so much divided, as to the effect of an actual occupation by a junior patentee of part of an interlock upon the claim of another under an elder and conflicting grant, the latter having previously taken possession of that portion of the land within his boundary outside the interlock. But however that may be, the bill of exceptions as taken, does not present the question. It must be construed as supposing a possession of the whole land within the interlock. Whether it might have been raised upon the evidence in the cause, is immaterial. The instructions asked for by the defendants, and which the court declined to give, are not made part of the record; and in the instructions which the court gave in lieu of them, no opinion is expressed on the point.

The second and third instructions given by the court, have only been questioned, because they refer to the time and manner of taking and holding possession supposed in the first instruction, the expression of which therein is supposed to be elliptical and obscure or repugnant and contradictory in the terms employed. I have already said there is no well founded objection to the first instruction, nor any serious difficulty in ^'understanding its proper meaning. That if the defendants were infants at the time of the acts done by their father, they could not be responsible for those acts in this form, as stated in the second instruction; arid if at the time of the conveyance to the plaintiff, the anees tor of the defendants held the land in controversy' in actual adverse possession under his claim, and continued to hold the same until his death, and such possession was after his death, continued by the defend*295ants, and never abandoned by them, that such conveyance to the plaintiff was inoperative and ineffectual to pass title to the premises so held in such adversary possession, are propositions too plain to admit of doubt or discussion.

We come next to the instructions asked for by the plaintiff, and which the court refused to give.

With regard to the first of the series, it is only necessary to say that it must be understood as declaring to the jury that possession taken by those under whom the plaintiff claimed, of the premises in controversy, and continued for seven years, would be in the year 1831, or subsequently, a bar to any right of entry on the part of the defendants or their ancestor, or any other person claiming under the Gibson grant; whereas in the year 1831 and until the passage of the act of March 30th, 1837, no possession short of fifteen years, unaided by a descent cast, would bar the entry of one having right or title to the same: and the court, for this reason, might properly refuse to give the instruction.

The second in the series is also objectionable, first, because if taken in connection with the evidence, as it must be to escape the objection of being a mere abstraction, it assumes that the acts relied upon by the defendants as showing their possession, were occasional or interrupted, and not continued and habitual, a matter of which it was for the jury to judge; and ^'secondly, because it assumes that such acts on the part of the ancestor of the defendants were unaccompanied by any “paper title,” legal or colorable; and declares that possession of the premises couid not be gained without such a paper title embracing the same within its boundary. An entry by one upon land in possession, actual or constructive, of another, in order to operate as an ouster and gain a possession to the party entering, must be accompanied by a claim of title; but it is not indispensable that the claim should be ostensible in the form of a deed or any other writing. The claim, from its nature and character, may be wholly independent of any written evidence. Nor, if the party have a deed or other writing with a specified boundary, is the possession which he may take and hold necessarily restricted to what shall prove to be within the precise boundary. He may take and may hold actual possession of land lying outside his true boundary. Whether he has done so in any particular case, is a question of fact and of intention; and whether the acts referred to in this case amounted to such a possession, or were those of a mere trespasser, was a matter for the determination of the jury.

With regard to the third instruction asked for, I have only to remark that I think it was upon a matter wholly irrelevant to the issue before the jury. Whether the entry had been made and possession held, mistakenly, in consequence of the supposed error in running the line and marking the beech referred to, was a question which perhaps might have been material on the general issue in an action of ejectment, or on the mise joined on the mere right in a writ of right. But it could not have been material in this case. Here the question was whether in point of fact such entry had been made and such possession held, and how long before the institution of the suit; and I cannot perceive how the origin of the defendant’s '^possession could tend to illustrate the plaintiff’s right, or in any manner aid the jury in determining the line by which the defendant’s actual possession was to be bounded.

The fourth instruction asked for by the plaintiff is justly obnoxious to the objection made by him to the first instruction given by the court. The terms in which it is expressed are very vague and indefinite, and the meaning intended is extremely doubtful and obscure. If given, it would have been as likely to confuse the jury as to aid them in their deliberations. But it is otherwise objectionable. It is framed upon the hypothesis that the plaintiff had entered upon and regained possession of the premises in controversy after the entry by the ancestor of the defendants; and there is no proof of such re-entry and regaining of possession. It also assumes as a fact in the cause, that after the plaintiff had thus regained possession the defendants (after the death of their ancestor) had re-entered upon him; and declares such re-entry to be a trespass which might be redressed in this action, if the defendants continued to hold possession, provided it had been brought within three years after they had so regained possession. Now, whether the defendants had entered upon the plaintiff and dispossessed him, was the very gist of the action; and if it had even been stated hypothetically, it would have been no less objectionable, because there was no proof of any such re-entry by the defendants after the death of their ancestor, upon a regained possession of the plaintiff. The only entry that could be imputed to them was the entry made by their ancestor in his life time ; and their possession was precisely the continuation of the possession, whatever it was, that he had at the time of his death in 1839. There was no fresh entry made by them, nor any renewal of an interrupted possession. The instruction also imputes to *an entry upon and inclosure of part of the land in controversy by the plaintiff under his title, the effect of divesting the defendants of the possession of all the uninclosed lands within the interlock, without regard to the intent with which such entry and inclosure were made; whether that were to take possession and oust the defendants of the whole, or only the part entered upon and inclosed; and is on this account also obnoxious to just criticism.

The fifil instruction was a direct appeal to the court to settle a fact deemed material in the cause, the locality of the beginning corner of the Gibson survey. It is true the *296court might be called on to instruct the jury as to the principles of law which might serve to enable them to determine this point; but it was not for the court to apply those principles to the facts of the case, and point out to the jury the place at which they are to place the corner in question. But if this were even otherwise, it was for the party moving the instruction to designate the point which he contended should be adopted, or those which he thought should be rejected; and not to call upon the court in general terms, to examine the whole case and find out and designate to the jury the point at which the corner in question was to be fixed.

The sixth and last instruction asked for by the plaintiff, in the terms in which it is propounded, presents a mere abstract proposition for the opinion of the court. But if those terms could be aided by taking them in connection with the evidence, then the instruction must be understood as assuming that the evidence proved, that those claiming under one of the grants referred to, had entered and held possession of the premises from 1805 till 1833, and that no possession had been had under the other grant until 1833, matters in respect of which there should be no interference on the part of the court with the province of *the jury. Besides, although possession had been taken under one of the two grants referred to, bearing the same date, and had been held from 1805 till 1833, yet if in the last named year those claiming under the other grant had disseized those previously in possession, . and had continued to hold the premises in uninterrupted adversary possession down to the institution of the suit in June 1849, it by no means followed that the title of those who held the possession prior to 1833, would prevail in this suit. On the contra^, the subsequent adverse possession for sixteen years would be a bar to such title, unless those claiming- it could bring themselves within the exception contained in the act of 1837, or were entitled to recover in a writ of right upon the seizin of their ancestor or predecessor. And we must suppose that the comparison of titles made in the instruction referred to the parties in the pending action ; for if it were intended to apply as between previous claimants, it would have been totally irrelevant.

For these reasons, I think no error was committed by the court in refusing to give either of the instructions asked for by the plaintiff. The remark too which has been made in relation to the third of the series, is equalty applicable to most if not all of the others. The case was not ejectment nor a writ of right, but a statutory proceeding involving merely a question of an unlawful entry and ouster on the part of the defendants within the period of the limitation, and a wrongful detainer of possession at the institution of the suit; though the parties seemed to regard themselves as fully embarked in a trial of titles. It is difficult to perceive how the questions mooted in those instructions could tend to illustrate the matter in issue before the jury. Upon a trial of titles between these parties they might no doubt be proper subjects for discussion ; but however decided in this case, they *would seem to be irrelevant and inconclusive. And though decided erroneously, it should seem the judgment should not on that account be reversed, if we can see from the bill of exceptions that they did not and could not affect the merits of the case before the jury. Hunter v. Jones, 6 Rand. 541. See also Le Bret v. Papillon, 4 East’s R. 502.

Waiving all objections to the form, of the bill of exceptions purporting to set out the facts proved, I think the motion' for a nevr trial was properly overruled upon the merits. The plaintiff wholly fathed to prove any such entry and ouster on the part of the defendants, on the foundation of which alone he could be entitled to recover. The only entry and taking possession proved was that of the defendant’s ancestor, which was certainly not later than 1834; and the possession of the defendants was but the continuation of the possession of their ancestor, which devolved upon them on his death in the year 1839. Whatever might have been the fate of a proper action for the trial of the disputed title between these parties, the plaintiff clearly mistook his remedy in resorting to this proceeding. He has wholly fathed to make out a case upon which he is entitled to recover here; and the attempt to try the title in this form must be wholly ineffectual.

I am of opinion to affirm the judgment.

The other judges concurred in the opinion of Eee, J.

Judgment affirmed.