Upon a Rehearing, June 28, 1906.

Absent, Keith, P.

This case is before us upon the award of a rehearing to a former decision rendered Kovember 23, 1905.

The principal assignment of error to which our attention has been directed in the petition for a rehearing grows out of a conclusion of the court, founded upon an incorrect copy of the certificate of acknowledgment to an agreement between Jasper Sutherland and others, of the one part, and P. A. Stratton, of the other part, dated October 7, 1887. It appeared that Jasper *596Sutherland’s name and cross-mark, unattested, was attached to-the agreement, hut his name did not appear in the certificate of acknowledgment. Upon that record the court, therefore, held that notice of the contents of the agreement could not he imputed to Jasper Sutherland, and that the paper was rightly excluded from the evidence. Thereupon, the plaintiff in error presented', its petition for a rehearing, calling our attention to the fact that Jasper Sutherland’s name did appear in the original certifícale,, and was by mistake transcribed as "Joseph Sutherland” in the-former record; and assigned that and other reasons as grounds for rehearing the decision.

In considering the ruling of the court with respect to the-exclusion of the Stratton agreement, to appreciate the significance of that decision it is proper to remark that the trial court had already excluded the record of the suit in equity instituted' by Joseph Kelly and others against the heirs of Dale Carter and Mary Campbell for the purpose of setting aside the Imbbden compromise, which compromise agreement was filed as an' exhibit with the rejected record. Kor reasons satisfactory tO' the court the action of the Circuit Court in ruling out that record' was affirmed. It is clear, therefore, that the rejection of theStratton agreement and power of attorney was corollary to the previous ruling.

The sole purpose for introducing the Stratton agreement and' power of attorney was to affect Jasper Sutherland with notice-of the Imboden compromise; but the court had already held that the Imboden compromise and the suit brought to annul it had no place in this record; and a fortiori, subordinate papers-in relation to the same subject matter were likewise immaterial and inadmissible in an action of ejectment.

The objection to the introduction of these documents was general, and, if for any reason they were inadmissible, the*597mling of the trial court in excluding them must he sustained. While basing the rejection of the Stratton agreement upon a different ground from that upon which it was rested in the former decision, we are, nevertheless, of opinion that it was rightly excluded.

It may also be observed, as affecting the probative value of the Stratton agreement, that it bears date October 5, 1887, whereas the deed from William Sutherland to Jasper Sutherland was executed January 15, 1887, about nine months previously. In this connection the court, in its former opinion, observes: “The evidence is clear and conclusive that from January, 1887, until the institution of this suit on the 13th day of October, 1902, a period of more than fifteen years (the limitation being only ten years west of the Alleghany mountains), Jasper Sutherland and his vendee had been in the open, notorious, exclusive and hostile possession of the land in dispute.”

Tor the purpose merely of excluding a conclusion we desire to say that nothing in the discussion of the factum and the acknowledgment of the Stratton agreement in the former opinion of the court was intended to alter or modify the rule enunciated in Board of Supervisors, etc., v. Dunn, 27 Gratt. 608, and that line of authorities, to the effect that “A person who signs, seals and delivers an instrument as his deed will never be heard to question its validity upon the ground that it was not acknowledged by him nor proved at the time of delivery. It is the sealing and delivery that gives efficacy to the deed, not proof of its execution. And this principle applies to all bonds, whether executed by public officers or private persons, unless there is a statute making the acknowledgment or proof in court essential to the validity of the instrument.”

The remaining grounds alleged in the petition to rehear have been sufficiently discussed and disposed of in the opinion of the *598court ou the former hearing, and do not demand further notice.

Por obvious reasons we cannot comply with the request of counsel to declare, if we should be of that opinion, that plaintiffs in error háve an equitable title to the minerals underlying the land in controversy. The functions of this court are exhausted when it has ruled upon the specific assignments of error submitted, and a mere advisory opinion, touching extraneous questions, expressed for the purpose of influencing future litigation, would be gratuitous and unwarranted.

Upon the whole case, we are of opinion to adhere to the previous decision, and to affirm the judgment of the Circuit Court.

Affirmed.

delivered the opinion of the court.

This is an action of ejectment, brought by plaintiff in error, to recover a certain tract of land lying in Dickenson county, and the real subject of controversy is the coal underlying the surface rather than the surface itself; the claim upon the part of plaintiff in error being that the coal and the surface are held by distinct titles, and that while defendants in error may be the owners of the surface, they wrongfully claim the minerals beneath it.

Upon the trial there was a verdict and judgment for the defendants, and a writ of error was allowed to the Interstate Coal and Iron Company, which brings the case before us for review.

We shall assume in this opinion, without further investigation, that plaintiff in error made out a complete paper title to the premises in question.

The case of defendants in error rests upon their claim of ad-' versary possession, and upon that defense the facts are as follows: Jacob Chaney conveyed this land to William Sutherland in-1864, by deed, which has been lost or destroyed. William Sutherland put his son, Jasper, into immediate possession, and Jasper has since then continuously lived upon the land. Ko deed or other writing, however, was ever given by William *588Sutherland to Jasper until the year 1887. It appears that William Sutherland intended this tract of land for his two sons, Jasper and Edward T. Sutherland. There is uncertainty in the proof as to whether Jasper Sutherland occupied the land from 1864 until 1887 as a donee of William Sutherland, or as his tenant. E. T. Sutherland sold whatever interest he had in the land to his brother, Jasper, but he made no deed, the title being still in their father; and on January 15, 1887, William Sutherland conveyed the land to Jasper. In February, 1888, he and his wife executed another deed to Jasper for the same land, in order to correct certain errors in the former deed, and to make the description thereof more specific. Jasper became involved in debt, and in a suit, brought by his creditors, in the Circuit Court of Dickenson county, his interest was sold and purchased by his brother, William B. Sutherland. This sale was made on the 13th of July, 1894, was duly reported to the court, and by it confirmed on the 11th day of February, 1895, but a deed conveying the legal title appears not to have been executed until the 27th day of June, 1901. The evidence is clear and conclusive that from January, 1887, until the institution of this suit, on the 13th day of October, 1902, a period of more than fifteen years, Jasper Sutherland and his vendee had heen in the open, notorious, exclusive and hostile possession of the land in dispute.

During the progress of the trial the plaintiff in error offered to introduce the record of a suit instituted by Joseph Kelly and others against the heirs of Dale Carter and Mary Campbell. This suit was brought by a number of plaintiffs, citizens of Dickenson county, who had squatted on portions of what is known as the “French lands,” for the purpose of setting aside the Imboden compromise, which was an agreement dated February 19, 1883, between F. M. Imboden, as agent for Dale *589Carter’s heirs, and Mary Campbell, Joseph Kelly, William Sutherland and a number of others, by which Kelly and others agreed to release the coal and other minerals on the lands then claimed by them, respectively, in consideration that the Carter heirs and Mary Campbell would release the surface and timber to them. This compromise agreement was never carried into execution, and, in 1888, the plaintiffs, Joseph Kelly, William Sutherland, and all of the parties who had signed the compromise, save one or two, brought this suit for the purpose of having it vacated and annulled. The devisees of Mary Campbell answered in the case, and numerous depositions were taken. The suit pended for a number of years and was transferred from court to court until it finally reached the' Circuit Court of Washington county, where it was dismissed, the order of dismissal being as follows: “On motion of complainants, by counsel, Bullitt & McDowell and D. F. Bailey, and by agreement of defendants, by their counsel, it is ordered that this cause be dismissed at the defendant’s cost, and the cause is retired from the docket.” It appears that this dismissal was in pursuance of a voluntary settlement made by the plaintiffs with the Virginia, Tennessee and Carolina Steel and Iron Company, which had theretofore purchased the interest of the Campbells in the land in controversy.

In connection with this suit, the object of the offer of which was to bring the Imboden compromise into this record, an agreement, dated October 7, 1887, between F. A. Stratton and practically all of the parties who signed the Imboden compromise, and also a power of attorney, dated the same day, from the same parties, or the greater part of them, were also offered in evidence. But the court refused to permit the record and papers to be read in evidence to the jury, and in this we think there was no error.

*590Jasper Sutherland was not a party to the Imhoden compromise, nor was he a party to the suit to have that compromise set aside. He is named as a party to the agreement between Elihu Long and others, on the one part, and F. A. Stratton, on the other part, the object of which was to employ Stratton to have the Imboden compromise set aside, and that paper sets out the Imboden compromise quite fully and may fairly be said to have brought home substantial knowledge of its contents to all who were parties to it. But though Jasper Sutherland’s name appears as one of the signers with his cross-mark affixed, he does not appear from the certificate of the commissioner in chancery as one of those who acknowledged its execution before him. There is no evidence that Jasper Sutherland can read; there is the presumption from the fact that he signed his name with a cross-mark that he cannot read; and there is no evidence in the record which proves or tends to prove any knowledge on his part of the contents of the paper known as the Imboden compromise. His name appears also in the power of attorney from Sympson Dyer and others, the object of which was to create F. A. Stratton an attorney “to settle up in full all business for us as it relates to the land now owned or occupied by us at the time of the compromise made and entered into by and between F. M. Imboden, as agent for Dale Garter’s heirs,” etc. This paper is also signed by Jasper Sutherland with his cross-mark, and his name appears as one of those who acknowledged it before D. B. B. Sutherland, a commissioner in chancery. But we do not think that this is sufficient to charge him-with knowledge of the terms of that compromise, and, therefore, that all of these papers were properly excluded.

There was an effort to prove that Jasper Sutherland never laid claim to the coal subsequent to the Imboden compromise; but all that could be extracted from any of the witnesses was that *591the question was never raised, and that they never heard anything said upon the subject; while Jasper Sutherland in his deposition (and he is a disinterested witness) states positively that he asserted entire ownership over all of the land, including the coal. There was an effort to prove by a witness that Jasper Sutherland had admitted to him that the Interstate Coal and Iron Company owned the coal on the land in controversy; but it appears that at the time of the alleged admission Jasper Sutherland had been deprived by the proceedings in the chancery suit brought by his creditors of all interest in the premises, so that no admission of his prejudicial to the interests of his vendee could properly be admitted. He was at the time of the alleged admission occupying the land as a tenant of his brother and vendee, William B. Sutherland, and no admission of his in derogation of his title could be binding upon his vendee.

It seems that William Sutherland and others executed a release deed of this property to the Virginia, Tennessee and Carolina Steel and Iron Company, in 1894, and that Jasper and William B. Sutherland refused to sign this deed, and the witness by whom their refusal was proved was asked if Judge Bichmond, the attorney engaged in the endeavor to perfect the title of this land in the Virginia, Tennessee and Carolina Steel and Iron Company, considered it necessary for Jasper and William B. Sutherland to sign this deed of release. The court excluded this evidence, and in this ruling we are of opinion that there was no error. We cannot see upon what principle the opinion of Judge Bichmond could be regarded as a fact to be considered by the jury in the trial of the issue before them.

It is true that the ownership of coal or other underlying mineral may be separated from the surface by a deed of record, and that thereafter there will be two estates in the same land (Va. Coal and Iron Co. v. Kelly, 93 Va. 352), and where such *592separation has taken place the owner of the surface of the land and the owner of the minerals under it are neither joint tenants nor tenants in common. “They are not the owners of undivided interests in the same subject, hut are the owners of distinct subjects of entirely different natures. The title to the freehold of the one, either in the surface or the minerals, cannot be acquired by adverse possession of the other, and the purchase of the outstanding title by the one does not enure to the benefit of the other.” But the presumption, we think, is that the owner of the surface owns all beneath and above the surface, and the burden is upon him who is interested to prove that there has been a severance of the interest and title, either by a deed of record, or by proof of such facts and circumstances brought home to the party sought to he charged as will affect his conscience with notice of adverse rights, or will serve to put him upon inquiry which would lead to such knowledge.

In this case the severance of the ownership of the coal from the ownership of the surface was brought about, if at all, by the Imboden compromise. That agreement was never executed; Jasper Sutherland was not a party to it; it does not appear in his line of title; it was never recorded; and it is not shown by the evidence that he had any other knowledge of it than such as was derived from his presence at a numerously attended meeting called to inaugurate a movement to set aside that compromise, where the subject seems to have been discussed, hut without any proof that he took part in the discussion, or was informed with reference to it. He is not a party to the first agreement with Stratton, in which the terms of the Imboden compromise are set out, and the power of attorney, which he signed with his cross-mark and acknowledged before a commissioner in chancery, is insufficient to bring home to him knowledge or notice of the contents of that compromise. We are of opinion, there*593fore, that upon all of these subjects the ruling of the Circuit Court was without error.

The court gave to the jury, at the instance of the defendants, certains instructions, which were objected to by plaintiff in error, and among them were the following:

“The court instructs the jury that if they believe, from the evidence, that in June, 1861, Jacob Chaney entered into possession of the land in controversy under color of title describing the whole thereof, and that in 1864 he, the said Chaney, sold said land to William Sutherland, by a writing describing the same, and that William Sutherland, then or shortly afterwards, gave the said land to his two sons, Jasper Sutherland and E. T. Sutherland, and that Jasper Sutherland went on said land, cleared; cultivated and improved the same and held possession thereof openly, notoriously and continuously for ten years after January 1, 1869, then good title to said land in controversy, and each and every part and parcel thereof, was thereby vested in him, the said William Sutherland, which could not be divested except by deed, and that after said ten years had elapsed neither said William Sutherland, Jasper Sutherland, or E. T. Sutherland, could, by any act short of a conveyance, divest themselves of the legal title to said land or any part thereof, and if the jury so believes they shall find for the defendants.

“The court further instructs the jury that if they believe, from the evidence in this case, and the land in controversy is included in the deed from Jacob Blair to Jacob Chaney of 1861 offered in evidence, and that the said Chaney afterwards sold the said land by a written contract to William Sutherland in 1864, and that said William Sutherland gave the said land to Jasper Sutherland and Elijah Sutherland, and that the said Jasper Sutherland took the actual possession of said land, pursuant to said gift, and remained in the actual, continuous and *594exclusive possession thereof, claiming the same as his own, for the period of ten years from the first day of January, 1869, then the jury should find for the defendants.”

These instructions present questions of law upon which we do not feel that it is necessary to pass. They refer to' the possession of Jasper Sutherland between 1864 and the date of William Sutherland’s deed to him in 1887, and even if it were shown that they were erroneous, the error ought not to affect the verdict of the jury, for if, as we have held, there was no error in the ruling of the Circuit Court upon the admissibility of evidence, then from the date of the deeds of William Sutherland to Jasper Sutherland, in January, 1887, and February, 1888, Jasper held adversely to all the world under color of title, and at the date of the institution of this suit that' adversary possession in Jasper and Ms vendee, William B. Sutherland, had continued for more than fifteen years, and had ripened into a good title; and upon the facts the jury could not have found any other verdict.

There were several other instructions given at the instance of defendant in error, which were excepted to.

The third of those instructions is as follows: “The court- . instructs the jury that, even should they believe that E. T. Sutherland did not claim one-half of the coal in controversy between the year 1883 and the date of the sale of Ms interest to his brother Jasper, that fact shall be treated by the jury as wholly immaterial in this case.”

This is certainly true if the view we have taken of the case be correct, and the rejection of this instruction was proper.

What was said with reference to the third instruction applies with equal force to the fourth.

The other instructions given at the instance of defendant in *595error are free from objection, and do not require extended discussion.

Plaintiff in error asked for several instructions, which the court refused to give. The first should not have been given because it is predicated upon the idea that Jasper Sutherland did not claim the coal and other minerals in and under the land, when the proof is positive to thé contrary. The refusal of the second is, in our view of the case, to say the least of it, immaterial, because it states that Jasper Sutherland had no color of title to the land in controversy until January, 1887, and that defendants could not rely upon adversary possession prior to that date, which is the view upon which we have decided the case. The other instructions are all predicated upon evidence which we have held was properly excluded.

We are of opinion that the judgment' of the Circuit Court should be affirmed.