___________
Alvin E. Gurganus, II
David C. Smith
Princeton, West Virginia
Bluefield, West Virginia
Attorney for the Appellees
Attorney for Appellees
Raymond Kenneth McGuire and
Alvin C. Taylor and
Geraldine Dudley McGuire
Pamela Taylor
R. Thomas Czarnik
Princeton, West Virginia
Attorney for Appellant
JUSTICE MILLER delivered the Opinion of the Court.
1. Rule 803(15) of the West Virginia Rules of Evidence allows for the admission of statements in documents affecting an interest in property.
2. "The recitals in an ancient deed relating to the
person or persons from whom title was derived are admissible in
evidence, but only in connection with other proof of a long-continued and undisputed possession, in accordance with the right
or title claimed." Syllabus Point 2, Furbee v. Underwood, 107
W. Va. 85, 147 S.E. 472 (1929).
3. "An ancient deed, made by a commissioner to the heirs of a deceased purchaser of land, under an order of sale in a proceeding to sell it as forfeited for non-payment of taxes, reciting the death of the purchaser, and inheritance by the grantees, is evidence of the facts recited, against strangers." Syllabus Point 25, Webb v. Ritter, 60 W. Va. 193, 54 S.E. 484 (1906).
Miller, Justice:
This case originated in the Circuit Court of Mercer
County as an action to quiet title to approximately nine acres of
land. Although the suit involves many parties, by virtue of
various transfers and successions to land, at its center is the
effort of Maxine Bailey, the appellant, to prove that her family
owns the land. Appellant claims that her family has consistently
held and used the land since 1891, when J. M. Bowling purchased
thirty-seven acres of land, of which the nine acres was a part,
from the Commissioner of School Lands at a delinquent tax sale.See footnote 1
The circuit court held that the appellant had failed to
prove ownership of the disputed land. Specifically, it made the
following finding of fact:
"The Court finds that there is no
evidence brought forward by the Baileys which
would prove by clear and convincing evidence
in the case that 37 acres were purchased at
the school land sale because many pieces of
property that are sold at school land sales
never existed. That further, from the
evidence there is no proof where the land came
from."
The appellant argues that this finding is directly
contradicted by the evidence in this case. She points to a number
of deeds, including one recording the sale to J. M. Bowling by the
Commissioner of School Lands.See footnote 2 The later deeds repeatedly refer
back to this school lands sale deed.
These deeds are admissible hearsay evidence. Rule
803(15) of the West Virginia Rules of Evidence, allowing for the
admission of statements in documents affecting an interest in
property, provides: "The following are not excluded by the hearsay
rule, even though the declarant is available as a witness: * * *
A statement contained in a document purporting to establish or
affect an interest in property if the matter stated was relevant to
the purpose of the document, unless dealings with the property
since the document was made have been inconsistent with the truth
of the statement or the purport of the document." In 2 J. W.
Strong, et al., McCormick on Evidence § 323 at 361 (4th ed. 1992),
this summary is made as to Rule 803(15) of the Federal Rules of
Evidence, which is identical to our rule:
"This exception has no requirement of age of
the document, but it is limited to title
documents, such as deeds, and to statements
relevant to the purpose of the document. The
circumstances under which documents of this
nature are executed, the character of the
statements that will qualify, and the
inapplicability of this exception if
subsequent dealings have been inconsistent
with the truth of the statement or the purport
of the document, are considered sufficient
guarantees of trustworthiness."
This rule is consistent with our prior case law, as
reflected in Syllabus Point 2 of Furbee v. Underwood, 107 W. Va.
85, 147 S.E. 472 (1929):
"The recitals in an ancient deed
relating to the person or persons from whom
title was derived are admissible in evidence,
but only in connection with other proof of a
long-continued and undisputed possession, in
accordance with the right or title claimed."
See also Wilson v. Braden, 56 W. Va. 372, 49 S.E. 409 (1904); Webb
v. Ritter, 60 W. Va. 193, 54 S.E. 484 (1906).
In Syllabus Point 25 of Webb, we held that a deed from a
Commissioner of Delinquent Lands was admissible as relevant
evidence of the facts therein recited:
"An ancient deed, made by a
commissioner to the heirs of a deceased
purchaser of land, under an order of sale in a
proceeding to sell it as forfeited for non-payment of taxes, reciting the death of the
purchaser, and inheritance by the grantees, is
evidence of the facts recited, against
strangers."
Thus, we find the circuit court erred in rejecting the
deed that was given by the Commissioner of Delinquent School Lands,
and those that followed it, which identified the property in
question as part of the land sold by the Commissioner. The circuit
court could not conclude under the foregoing law that the
Commissioner's deed contained land which never existed, without
specific proof by the party questioning the Commissioner's deed.
To allow such a holding would play havoc with land titles.
We, therefore, reverse the judgment of the circuit court
and remand the case for further proceedings consistent with this
opinion.
Reversed and remanded.
Footnote: 1Although there is much information in the record and discussion in the briefs of later transfers, due to the nature of our ruling here, we need not address them.
Footnote: 2Such individuals are now termed Deputy Commissioners of Forfeited and Delinquent Lands. W. Va. Code, 11A-4-5 (1947).