CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;
ARTICLE 4. EJECTMENT.
§55-4-1. When ejectment a proper remedy.
The action of ejectment is retained and may be brought as
heretofore, subject to the provisions hereinafter contained. It
may also be brought in the same cases in which a writ of right
might have been brought prior to the first day of July, in the year
eighteen hundred and fifty, in the state of Virginia, and by any
person claiming real estate in fee or for life, or for years,
either as heir, devisee, purchaser, or otherwise.
Every such action shall be brought in the circuit court, or
any other court given by any statute concurrent jurisdiction to try
actions of ejectment, of the county in which the real estate, or
some part thereof, is.
§55-4-3. Interest of plaintiff.
No person shall bring such action unless he has, at the time
of commencing it, a subsisting interest in the premises claimed,
and a right to recover the same, or to recover the possession
thereof, or some share, interest, or portion thereof.
§55-4-4. Parties defendant.
If the premises be occupied, the occupant shall be named
defendant in the declaration; and whether they be occupied or not,
any person exercising acts of ownership thereon, or claiming title
thereto, or any interest therein, at the commencement of the
action, may also be named as defendant in the declaration. If a
lessee be made defendant without joining his landlord, such
landlord may appear and be made defendant with, or in place of his
§55-4-5. How action commenced.
The action shall be commenced by the service of a declaration
in which the name of the real claimant shall be inserted as
plaintiff; and all the provisions of law concerning a lessor of a
plaintiff shall apply to such plaintiff.
It shall be sufficient for the plaintiff to aver in his
declaration that, on some day specified therein (which shall be
after his title accrued), he was possessed of the premises claimed,
and that, being so possessed thereof, the defendant afterwards, on
some day to be stated, entered into such premises, and that he
unlawfully withholds from the plaintiff the possession thereof, or
exercises acts of ownership thereon or claims title thereto some
interest therein, to his damage, such sum as the plaintiff shall
state. The plaintiff shall also state whether he claims in fee or
for his life, or for the life of another, or for years, specifying
such lives, or the duration of such terms; and when he claims an
undivided share or interest, he shall state the same. The premises
shall be described in the declaration with convenient certainty, so
that from such description possession thereof may be delivered.
§55-4-7. Joinder of parties plaintiff.
The declaration may contain several counts, and several
parties may be named as plaintiffs jointly in one count and
separately in others.
§55-4-8. Service of declaration and notice; order of publication.
To such declaration there shall be subjoined a written or
printed notice by the plaintiff, or his attorney, addressed to the
defendant and notifying him that such declaration will be filed on
some specified rule day, in the clerk's office of the court in
which the action is to be prosecuted, or in such court on some day
named at the next term thereof, and that if he fails to appear and
plead thereto, within the time required by law, judgment will be
given against him. Such declaration and notice may be served in
the same manner as other notices may by law be served. But if the
defendant do not reside in the county where the action is brought,
or cannot be found therein, such service may be made in any part of
the state where he may reside or be found; and if he do not reside
in the state, or cannot be found therein, so that such service
cannot be made, an order of publication, as provided by law in
other cases, may be awarded against him, and all the laws in force
in relation to judgments and decrees obtained on publication and
proceedings in such cases shall be applicable to the proceedings
and judgment had and rendered in such action on such publication.
§55-4-9. Rule to plead; default judgment.
Upon filing the declaration and notice, with proof of the
service thereof as aforesaid, the plaintiff shall be entitled to a
rule upon the defendant to appear and plead at the next rule day,
if the same be filed at rules, or if filed in court, to appear and
plead within such time as shall be prescribed by the court; and if
the defendant fail so to appear and plead, his default shall be
entered and judgment given against him.
§55-4-10. Plea or demurrer; issue on plea; evidence admissible.
The defendant may demur to the declaration, as in personal
actions, or plead thereto, or do both. But he shall plead the
general issue only, which shall be that the defendant is not guilty
of unlawfully withholding the premises claimed by the plaintiff in
the declaration. Upon such plea, the defendant may give in
evidence any matter which, if pleaded in the former writ of right,
would have barred the action of the plaintiff.
§55-4-11. Equitable title of vendee as defense.
A vendor, or any person claiming under him, shall not at law
recover against a vendee, or those claiming under him, lands sold
by such vendor to such vendee, when there is a writing stating the
purchase, and the terms thereof, signed by the vendor or his agent.
§55-4-12. Payment or performance by mortgagor as defense.
The payment of the whole sum, or the performance of the whole
duty, or the accomplishment of the whole purpose, which any
mortgage or trust deed may have been made to secure or effect,
shall prevent the grantee or his heirs from recovering at law, by
virtue of such mortgage or trust deed, property thereby conveyed,
whenever the defendant would in equity be entitled to a decree
revesting the legal title in him without condition.
§55-4-13. Notice of equitable defense; resort to equity not
A defendant shall not be allowed to avail himself of either of
the two preceding sections, unless notice in writing of such
defense shall be filed with his plea. Whether he shall or shall
not make or attempt such defense, he shall not be precluded from
resorting to equity for any relief to which he would have been
entitled, if the said sections had not been enacted.
§55-4-14. Consent rules not to be used; what plaintiff must prove
The consent rules shall not be used. The plaintiff need not
prove an actual entry on or possession of the premises demanded, or
receipt of any profits thereof, nor any lease, entry or ouster,
except as hereinafter provided. But it shall be sufficient for him
to show a right to the possession of the premises at the time of
the commencement of the suit.
§55-4-14a. When proof required of location of reservations or
exceptions contained in instruments of title.
In any action, suit or other judicial proceeding involving the
title to land embraced in the exterior boundaries of any patent,
deed, or other writing, which reserves or accepts one or more
parcels of land from the operation of such patent, deed or other
writing, if there be no claim made by a party to the proceedings
that the land in controversy, or any part thereof, lies within such
reservation or exception, such patent, deed, or other writing,
shall be construed, and shall have the same effect, as if it
contained no such reservation or exception; and if any party to
such proceeding claims that the land in controversy, or any part
thereof, lies within such reservation or exception, the burden
shall be upon him to prove the fact, and all land not shown by a
preponderance of the evidence to lie within such reservation or
exception shall be deemed to lie without the same.
This section shall apply in cases involving the right to the
proceeds of any such land when condemned or sold, as well as in
cases where the title to land is directly involved, and shall apply
in any case in which the title to any part of the land, or its
proceeds, but for this section, would or might be in the state.
§55-4-15. What plaintiff must prove against cotenant.
If the action be by one or more tenants in common, or joint
tenants, or coparceners, against their cotenants, the plaintiff
shall be bound to prove actual ouster or some other act amounting
to a total denial of the plaintiff's right as cotenant.
§55-4-16. Extent of possession under patent, deed or other
In a controversy affecting land, when a person claiming under
a patent, deed or other writing shall enter upon and take
possession of any part of the land in controversy under such
patent, deed or other writing, for which some other person has the
better title, such adversary possession under such patent, deed or
other writing shall be taken and held to extend to the boundaries
embraced or included by such patent, deed or other writing, unless
the person having the better title shall have actual adverse
possession of some part of the land embraced by such patent, deed
or other writing.
§55-4-17. Verdict as to parties.
If the jury be of opinion for the plaintiffs, or any of them,
the verdict shall be for the plaintiffs or such of them as appear
to have the right to the possession of the premises, or any part
thereof, and against such of the defendants as were in possession
thereof, or exercised acts of ownership thereon, or claimed title
thereto or any interest therein, at the commencement of the action.
Where any plaintiff appears to have no such right, the verdict as
to such plaintiff shall be for the defendants. If the action be
against several defendants, and a joint possession of all be
proved, and the plaintiff be entitled to a verdict, it shall be
against all, whether they plead separately or jointly.
§55-4-18. Verdict as to premises.
When the right of the plaintiff is proved to all the premises
claimed, the verdict shall be for the premises generally, as
specified in the declaration; but if it be proved to only a part or
share of the premises, the verdict shall specify such part
particularly as the same is proved, and with the same certainty of
description as is required in the declaration. If the verdict be
for an undivided share or interest in the premises claimed, it
shall specify the same; and if for an undivided share or interest
of a part of the premises, it shall specify such share or interest,
and describe such part as before required. The verdict shall also
specify the estate found in the plaintiff, whether it be in fee or
for life, stating for whose life, or whether it be a term of years,
and specifying the duration of such term.
§55-4-19. Judgment; assignment of dower.
The judgment for the plaintiff shall be that he recover the
possession of the premises, according to the verdict of the jury,
if there be a verdict; or if the judgment be by default, or on
demurrer, according to the description thereof in the declaration.
If the action be brought to recover dower which has not been
assigned before the commencement of such action, the court in which
the judgment is rendered may have dower assigned by commissioners
appointed for that purpose. If the action be against several
defendants, and it appear on the trial that any of them occupy
distinct parcels, in severalty or jointly, the plaintiff may
recover several judgments against them for the parcels so held by
one or more of the defendants separately from others. The
plaintiff may recover any specific or any undivided part or share
of the premises, though it be less than he claimed in the
§55-4-20. Change in plaintiff's right pending action; additional
If the right or title of the plaintiff in ejectment be that of
a tenant for life or for a term of years, and such right or title
shall expire after the commencement of the action, but before
trial, the verdict shall be according to the fact, and judgment
shall be entered for his damages sustained by the withholding of
the premises by the defendant; and as to the premises claimed, the
judgment shall be that the defendant go thereof without day. But
the right of the plaintiff to recover in the action shall not be
affected or impaired by reason of any conveyance or transfer of the
legal title to the premises in controversy, by or from the
plaintiff to another, pending the action. And where any such
conveyance or transfer is made, the person in whom the legal title
to such premises is thereby vested may, at any time before trial,
on motion of either party, be made a party plaintiff in the action,
either with or without an amendment of the declaration, as the
court may deem proper; and in such case, if the plaintiff recover,
the verdict and judgment may be for all the plaintiffs, or for such
of them as may be entitled to the possession of the premises at the
time of the trial.
§55-4-21. Mesne profits and damages.
If the plaintiff file with his declaration a statement of the
profits and other damages which he means to demand, and the jury
find in his favor, they shall at the same time, unless the court
otherwise order, assess the damages for mesne profits of the land
for any period not exceeding five years previous to the
commencement of the suit until the verdict, and also the damages
for any destruction or waste of the buildings or other property
during the same time for which the defendant is chargeable.
§55-4-22. How damages assessed.
If there be no issue of fact tried in the cause, and judgment
is to be rendered for the plaintiff on demurrer, default, or
otherwise, such damages shall be assessed by the court, unless
either party shall move to have them assessed by a jury, or the
court shall think proper to have them so assessed, in which case a
jury shall be impaneled to assess them.
§55-4-23. Claim for improvements.
If the defendant intends to claim allowance for improvements
made upon the premises by himself or those under whom he claims, he
shall file with his plea, or at a subsequent time before the trial
(if for good cause allowed by the court), a statement of his claim
therefor, in case judgment be rendered for the plaintiff.
§55-4-24. Balance as between damages and improvements.
In such case, the damages of the plaintiff and the allowance
to the defendant for improvements shall be estimated and the
balance ascertained, and judgment therefor rendered, as prescribed
in article five of this chapter.
§55-4-25. Postponing assessment of damages and allowance for
On motion of either party, the court may order the assessment
of such damages and allowance to be postponed until after the
verdict on the title is recorded.
§55-4-26. Effect of judgment.
Any such judgment in an action of ejectment shall be
conclusive as to the right of the possession established in such
action upon the party against whom it is rendered, and, subject to
the provisions of section two, article eleven of this chapter,
against all persons claiming from, through, or under such party, by
title accruing after the commencement of such action, except as
§55-4-27. Effect of judgment as to persons under disability.
If any person against whom such judgment is rendered shall be
at the time of the judgment an infant, or insane, the judgment
shall be no bar to an action commenced within three years after the
removal of such disability.
§55-4-28. Right to recover mesne profits and damages against
person other than defendant.
Nothing in this article shall prevent the plaintiff from
recovering mesne profits, or damages done to the premises, from any
person other than the defendants, who may be liable to such action.
§55-4-29. Default or surrender by tenant for life.
If any tenant for life of land make default or surrender, the
heirs, or those entitled to the remainder, may, before judgment, be
admitted to defend their right, or after judgment may assert their
right, without prejudice from such default or surrender.
§55-4-30. Right of entry not tolled by descent cast.
The right of entry on, or action for, land shall not be tolled
or defeated by descent cast.
§55-4-31. Petition for ascertainment and designation of boundary
line or lines of real estate.
Any person having a subsisting interest in real estate and a
right to its possession, or to the possession of some share,
interest or portion thereof, upon petition filed in the court which
would have jurisdiction in an action of ejectment concerning such
real estate, shall have the right to have ascertained and
designated by the said court, the true boundary line or lines to
such real estate, as to one or more of the coterminous landowners.
Petitioner in his petition shall state whether his interest is in
fee, for life, for a term or otherwise, and shall describe with
reasonable certainty said real estate and the boundary line or
lines thereof which he seeks to establish. A plat showing such
real estate and boundary line or lines, filed with the petition,
may serve the purposes of such description.
The petitioner shall make defendants to said petition all
persons having a present interest in the boundary line or lines
sought to be ascertained and designated, and the case shall be
commenced by serving a copy of the petition upon the defendant or
defendants. If the petition shall have been served on the
defendant or defendants and filed in the clerk's office not less
than thirty days preceding the first day of a term of court the
case shall be matured for trial at said term. The defendant or
defendants may file an answer to said petition which shall state
the grounds of defense, if any, and the parties shall be deemed to
be at issue, which issue shall be the true boundary line or lines
of such real estate. The trial shall be conducted as other trials at law, and the same rules of evidence shall apply and the same
defenses may be made as in other actions at law. A trial by jury
may be waived by consent of the parties, and the case be tried by
the court. Counsel for the petitioner shall have the right to open
and conclude the argument. The judgment of the court shall be
recorded in the law order book, and in the current deed book in the
office of the clerk of the county court, and indexed in the names
of the parties.
The judge of the court in term time or vacation may direct
such surveys to be made as he may deem necessary. The judgment of
the court, unless reversed, shall forever settle, determine, and
designate the true boundary line or lines in question, and be
binding upon the parties, their heirs, devisees, and assigns. The
judgment may be enforced in the same manner as a judgment in an
action of ejectment. A writ of error from the supreme court of
appeals shall lie to such judgment in like manner as in a
In a proceeding under this section, no claim for rents,
profits or damages shall be considered.
§55-4-31a. Resolution of boundary disputes; corrective deeds;
petition for ascertainment and designation of
boundary line or lines of real estate.
Where a survey has been made to establish the boundary to a
parcel of land and there is a dispute between two or more owners of
the land so surveyed as to the location of the boundary as located
by such surveyor, the surveyor may make or cause to be made a
review of the appropriate deeds of the parcels of land involved to
determine the correct property description and location of the
If there is not sufficient evidence at the site of the parcels
involved to ascertain the true location of the boundary line, the
parties to the dispute may secure the judgment and knowledge of
another licensed land surveyor or surveyors or registered
professional engineer or engineers as to the true location. If an
agreement is reached between all of the owners of the land involved
in the dispute, then a straw deed or deed of correction shall be
made, with the signatures of all parties affixed thereto.
If after the intervention of the additional surveyor,
surveyors, engineer or engineers, there still exists a dispute as
to the location of the boundary line, then any party may bring an
action pursuant to section thirty-one of this article in the
circuit court of the county where the land is located to ascertain
the true location of the boundary line: Provided, That in any such
action no party to such action shall be permitted to introduce into
evidence any agreement with respect to the boundary dispute between
two or more parties to the action if such agreement is not embodied in a corrective or straw deed executed by the parties.
Nothing in this section shall prevent or be deemed a condition
precedent to the institution of an action under section thirty-one
of this article.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.