Berry v. Seawall

• Decision Date: 08 January 1895
• Docket Number: 154-158.
• Parties: BERRY et al. v. SEAWALL et al. SHEPHERD v. SAME. BAUGHMAN et al. v. SAME. HAYS v. SAME. ARBOGAST v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

65 F. 742

BERRY et al. v. SEAWALL et al. SHEPHERD v. SAME. BAUGHMAN et al. v. SAME. HAYS v. SAME. ARBOGAST v. SAME.

Nos. 154-158.

United States Court of Appeals, Sixth Circuit.

January 8, 1895

These are five writs of error to review the same number of judgments in actions for the recovery of real estate, in which, the plaintiffs below being the same, and the questions of fact and law being identical, the court below ordered a consolidation under section 921, Rev. St. U.S. All the cases turned on the existence, validity, and effect in Ohio of a parol partition of lands by a married woman and her husband followed by long possession and acquiescence in accordance therewith, as a defense to an action for recovery of real estate in a circuit court of the United States. The real estate in controversy in the different actions was the undivided one-third interest in lands all of which are embraced in a survey of 1,500 acres lying in Fayette and Union counties, Ohio, and in the Virginia military district and which were conveyed by patent of the United States government, dated August 21, 1821, to the heirs and legal representatives of Col. William Greene Munford, in consideration of said Munford's services in the war of the Revolution. This patent was one of several issued in satisfaction of a United States land warrant for 6,666 2/3 acres in favor of the same beneficiaries, directed to the surveyor of the Virginia military land district in Ohio. Patents for 1,500 acres in the aggregate were issued to Duncan McArthur for his services in locating and surveying the land. The other patents in satisfaction of the warrant were for 1,500 acres (the one in controversy), for 1,300 acres, for 1,299 2/3 acres, for 437 acres, for 100 acres, for 410 acres, and for 120 acres. These, except the first, were dated August 22, 1822.

The original plaintiffs in the actions below, which were begun in 1877, were all of them descendants and heirs at law of Margaret Ann Sinclair, a granddaughter of William Greene Munford, and one of his heirs, when the patents above mentioned were issued. Subsequently a majority of the original plaintiffs conveyed all their interests to J Hairston Seawall, and by consent of all parties the causes proceeded entitled as above. At the date of the issuance of the patents the heirs of William Greene Munford were in three branches, as follows: (1) Margaret Ann Sinclair, the daughter of a deceased son of William Greene Munford. She was born January 1, 1800, was married to John Sinclair, July 4, 1819 and died September 13, 1837. Her husband survived her, and did not die until August, 1875, shortly after which these suits were brought. (2) Robert H. Munford, Stanhope R. Munford, and Ann Munford, children of John Munford, a deceased son of William Greene Munford. (3) The children of Mary Stubblefield, daughter of William Greene Munford, and wife of Edward Stubblefield. It was conceded at the trial that Margaret Ann Sinclair, by the patent for 1,500 acres, became the owner in fee of an undivided one-third of the lands in controversy; that the plaintiffs were her lawful heirs or grantees; and that, unless the defendants could establish some possession, the plaintiffs must have a verdict. The answer of the defendants, in addition to denying the title of the plaintiffs, pleaded the statute of limitations. On the trial the defendants sought to establish a parol partition, under which Margaret Sinclair and her husband parted with all interest in the 1,500-acre tract to her cotenants, and acquired the exclusive right in severalty to the 1,300-acre patent, which she and her husband subsequently, in 1824, sold by deed, with covenants of general warranty, for $1,300. There was no direct evidence of the partition, but the proof of its existence rested on circumstances, the chief of which were the warranty deed of Margaret Ann Sinclair for the 1,300-acre tract above referred to, and the quiet possession of the 1,500-acre tract by the plaintiffs and their grantors, the other cotenants of Margaret Ann Sinclair, for more than 50 years. The court below submitted to the jury several questions, the answers to which show the facts to be as already stated. The jury found that there had been a parol partition as claimed by defendants, and also found a general verdict for the defendants. The circuit court was of the opinion that the evidence was not sufficient to sustain the special finding that there had been a parol partition, and set it aside. The court was further of the opinion that a parol partition, though followed by possession in accordance with it, was not a valid partition in Ohio against a married woman, and constituted no defense to the plaintiffs' case. Therefore, disregarding the finding of a parol partition as immaterial, the court, on motion, gave judgment in each case for the plaintiffs on the other special findings non obstante veredicto.

Mills Gardner and Humphrey Jones, for plaintiffs in error.

Matthews & Cleveland, for defendants in error.

Before TAFT and LURTON, Circuit Judges, and BARR, District Judge.

TAFT Circuit Judge, after stating the case as above, .

Counsel for the plaintiffs in error have devoted some time in argument and some space in their brief to a discussion of the action of the court in setting aside the finding of the jury that there had been a parol partition between Margaret Sinclair and her cotenants. This action of the court is not before us for review. A motion to set aside a special finding is a motion for a new trial on the issue thereby decided, and is addressed solely to the discretion of the trial court. It is not reviewable by writ of error. Railway Co. v. Struble, 109 U.S. 381, 3 Sup.Ct. 270. The only question for our consideration here is whether the action of the court below was right in giving judgment for the plaintiffs on the facts found by the jury, including the fact of a parol partition. If a parol partition, followed by a correspondent possession in severalty, was a good defense by the law of Ohio, then the fact that the evidence was insufficient to sustain a finding of such parol partition would not justify the court in ignoring the finding and giving judgment for plaintiffs; and, having submitted the question of fact as to parol partition to the jury, the court could only set aside the finding, and grant a new trial. The judgment under review therefore rests on the proposition that a parol partition between a married woman and her husband and her cotenants, followed by long correspondent possession, is not, in Ohio, a valid defense in an action by her or her heirs for the recovery of her original undivided interest in the part assigned under the partition to her cotenants. If this proposition cannot be supported, the judgment must be reversed; otherwise it must stand.

The statute of limitations was pleaded in these cases, but cannot avail the defendants. The statute in force at the time the possession of defendants and their grantors was begun is still in force and is as follows:

'An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within twenty-one years after the cause of such action accrues. ' Rev. St. Ohio, Sec. 4977.

The saving clause of this statute, in force until after the bringing of these suits, was as follows:

'If a person entitled to commence such action is, at the time his right or title first descends or accrues, within the age of twenty-one years, a married woman, insane or imprisoned, such person may, after the expiration of twenty-one years from the time his right or title first descended or accrued, bring such action within ten years after such disability is removed, and at no time thereafter. ' Section 4978.

By virtue of the foregoing section, the statute did not run against Margaret Ann Sinclair during her life, because she was under coverture from the time possession was taken in accordance with the partition until her death in 1837. When she died, the right of entry was in her husband as tenant by the curtesy, and the statute could not begin to run against her heirs until his death, in 1875, and the termination of his right of entry. Till then no right of entry or action accrued in favor of the heirs. Lessee of Ford v. Langel, 4 Ohio St. 465; Koltenbrock v. Cracraft, 36 Ohio St. 584; Carpenter v. Denoon, 29 Ohio St. 398; Holt v. Lamb, 17 Ohio St. 374.

The consideration of the question of the parol partition, which, for the purposes of our decision, must be assumed to have taken place between 1821 and 1824, as claimed by the defendants below, has been divided by counsel in argument into four heads: First. Does a parol partition of land in Ohio between all the cotenants, consummated by long possession and acquiescence short of the period for ripening of title by adverse possession under the statute of limitations, pass a legal title in severalty to the allottees in their respective shares? Second. Does it pass the legal title of a married woman who, as one of the cotenants, consented to and took part in the division and possession? Third. Even if it does not pass the legal title, will it estop in pais a cotenant who was sui juris to bring an action at law in courts of the United States to recover an undivided interest in the parts assigned in the partition to his other cotenants? Fourth. Will such an estoppel in pais prevail in Ohio against a cotenant who was a married woman, and joined with her husband in making such a partition?

It will be convenient for us to take the same course as counsel in our consideration of this case.

1. The effect of a parol partition consummated by possession and acquiescence upon the legal title to the land has never been directly decided in Ohio. The...