Another v. Payne

• Decision Date: 27 January 1887
• Citation: 1 S.E. 1947,82 Va. 759
• Parties: Fry and another, Trustees, etc. v. Payne and others.
• Court: Virginia Supreme Court

1 S.E. 1947

(82 Va. 759)

Fry and another, Trustees, etc.

v.Payne and others.

Supreme Court of Appeals of Virginia.

January 27, 1887.

1. Partition—Equity Jurisdiction—Questions of Title—Code Va. 1873, Ch. 120, §1.

Section 1, c. 120, Code Va. 1873, expressly confers jurisdiction upon a court of chancery in a suit for partition of real estate to adjudicate questions of title arising in the cause. 2 Statute op Limitations—Adverse Possession—Dower Land—Possession op One Coparcener.

Where a son, by permission of his mother, entered upon her dower land, and after her death continued in possession of the same for more than 35

[1 S.E. 198]

years, held, in the absence of proof of an actual ouster or disseizin, or some other act amounting to a total denial of the rights of the other coparceners, that he acquired no title by adverse possession.¹

Appeal from circuit court, Madison county.

Bill for partition of real estate. Decree for plaintiffs. Defendants appealed. The facts are stated in the opinion.

Jas. Hay, W. 0. Fry, and John G. Williams, for appellants.

John L. Jeffries, for appellees.

Lacy, J. This is an appeal from two decrees, rendered by the circuit court of Madison county at the April term, 1883, and the April term, 1885, in the consolidated causes of Thomas v. Thomas, Trustee; Payne, Trustee, and others v. Thomas and others; aud W. 0. Fry and others, Trustees, v. Thomas and others. In February, 1883, the appellees filed their bill against William Thomas, John C. Utz, and others, alleging that Robert Thomas died in 1832, leaving a widow and nine named children, seized and possessed of a considerable quantity of real estate, of which 360 acres were assigned to the widow, and the residue divided among his children. The said widow lived there until her death; and one of her sons, William Thomas, lived with her until her death, and afterwards on the said land, until the whole of his land was rented out, in the suit of Thomas v. Thomas, Trustee, when A. B. Thomas rented the said land, and William Thomas lived with him; and that up to that time no division of the said land had been made between the parties entitled thereto, —the heirs of Robert Thomas, deceased, —and setting out these at length, and the rights of each* and the interests which had been aliened. It is further alleged that these lands occupied by William Thomas, in the manner stated above, together with other lands belonging to William Thomas, had been sold in a suit, to which they were not parties, to, one John C. Utz, by which, however, they claimed they could not be prejudiced, and could not be bound, and prayed a partition of the land, or sale of the same for distribution. The cause was referred to a commissioner, who took the depositions, and reported to the court that, as to the said 360 acres, known as the dower of the widow of Robert Thomas, deceased, that William Thomas had in his own right one-ninth of this land; that be had purchased three-ninths, for which he had a deed; and that he had acquired the other five-ninths by adversary possession, having held the same with color of title for

[1 S.E. 199]

more than 35 years. Exceptions were taken to said report, and sustained by the court, and by the decree of April term, 1885, the cause was decided. The court held that William Thomas was the owner of four-ninths of this land only, which had been conveyed by him to trustees, for the benefit of his creditors, and the parties being willing to accept the proceeds of the sale of the land to J. C. Utz, except the creditors of William Thomas. The court referred the cause to a commissioner to apportion the proceeds of the sale to Utz among the heirs of Robert Thomas and...