Arnold S. v. Als

• Decision Date: 15 February 1921
• Docket Number: No. 4142.,4142.
• Court: West Virginia Supreme Court
• Parties: Elizabetpi E. Arnold et als. v. Charles E. Mylius et als. Charles E. Mylius el als. v. Elizabeth E. Arnold el als. and C. I. Farnsworth v. Charles E. Mylius.

87 W.Va. 727

Elizabetpi E. Arnold et als.

v.Charles E. Mylius et als.

Charles E. Mylius el als.

v.Elizabeth E. Arnold el als.andC. I. Farnsworth

v.Charles E. Mylius.

No. 4142.

Supreme Court of Appeals of West Virginia.

Submitted February 8, 1921.

Decided February 15. 1921.

1. Partition Qiiestions of Title Dependent Upon Location of Boundary Lines Under Different Titles Cannot be Heard in Suit for Partition.

Questions of title to land dependent upon issues of fact proper for jury determination and arising out of uncertainty as to the location of boundary lines between tracts of land held under different and hostile titles, one of them by three persons and the adjoining tracts by two of them, cannot be heard and determined by a court of equity in a suit for partitution of the tract owned by all of them as cotenants. (p. 732).

2. Same Court Held Not to Have Jurisdiction to Determine Oicnership Where Boundaries in Dispute.

Even though, in such case, the title of one of the cotenants in the subject of partition is merely equitable and he is a cotenant with another one of the three in the adjoining lands, there is no jurisdiction in such suit to determine the ownership of the lands in dispute by reason of the conflicting claims as to the location of the boundary lines, (p. 732).

3.-Same That Hostile Titles Go Back to Common Source Held Not to Confer Jurisdiction.

In such case, it is immaterial that the titles to all of the tracts of land so situated go back to a common source. When land once held as a single tract under a single title has been divided by alienation into separate tracts and conveyed to different people, the several titles so created are hostile to one another, (p. 732).

4. Tenancy in Common Agreement as to Boundary for Purpose of Voluntary Partition Held Not to Inure to Benefit of Cotenants in Another Tract.

If a cotenant in one tract of land agree with his cotenants in another and adjoining tract, the owners of the two tracts being different, upon the location of the boundary line between the two tracts, for the purposes of a voluntary partition of the latter tract, with intent and purpose to retain his claim of title to the land lying between such location and what he believes to be the true location, his action in so doing does not inure to the benefit of his cotenants in the other or first mentioned tract, (p. 732).

5. Partition Equity Has No Jurisdiction of Demand by One Cotenant for An Accounting Against Another for Land and Timber Sold Within Disputed Territory.

In a suit for partition of a tract of land, a court of equity has no jurisdiction of a demand by one cotenant, for an accounting for land and timber sold by another, within territory in dispute by reason of conflicting claims as to locations of boundary lines, based upon strange and hostile titles, (p. 732).

6. Appeal and Error Appellate Court Will Reverse Decree in Partition Ex Mero Motu, Though No Objection Made to Lack of Jurisdiction Below.

If, in a suit in equity for partition of land, in which the pleadings and proofs introduce issues of title proper for jury Feb. 1921] Arnold et al. v. Mylius et al. determination, arising out of claims made under strange and hostile titles, no objection is made by any of the parties, on the ground of lack of jurisdiction, and the trial court by its decree determines such questions, the appellate court, on an appeal from the decree, will reverse it, ex mero motu, and remand the cause, (p. 736).

Appeal from Circuit Court, Randolph County.

Consolidated suits by Elizabeth E. Arnold and others against Charles E. Mylius and others; by Charles E. Mylius and others against Elizabeth E. Arnold and others; and by C. I. Farnsworth against Charles E. Mylius. From decrees rendered, Charles E. Mylius appeals.

Reversed in part. Affirmed in part. Remanded.

W. B. & E. L. Maxwell, for appellant.

Le Roy See, II. G. Kump, D. II. Hill Arnold, and Blue) & McCabe, for appellees.

pofeenbarger, judge:

The nature of this controversy and the character of the issues made in the three consolidated suits in which the decrees complained of on this appeal were entered are revealed by the statement thereof in the opinion filed in Arnold v. Mylius, 85 W. Va. 123 and 101 S. E. 78, dismissing an appeal entered in the same causes, as having been improvidently allowed. This appeal brings up the decree from which that appeal was attempted and a decree subsequently entered, the effect of which was to broaden the previous one so as to make it pass upon and dispose of all the basic issues raised. The boundary lines of Lot No. 21 of the Goff division of the Phillips and Law Survey are now fixed, as to the Farnsworths, as well as the other parties interested, for the purposes of the partition sought by the several suits, on different bases, as determined by the issues as to the southern and western boundaries of said Lot No. 21, in which all of the parties are interested, the Arnolds owning one-half and Mylius, or he and the Farnsworths, the other half.

As will appear by reference to said statement, the pleadings make an issue of title between the Arnolds and Mylius, as to about 300 acres of land, dependent upon the location of the boundary line between Lot No. 21 and Lot No. 15. If that land is in Lot No. 15, the Arnolds never had any title to it, the title thereto being now in Mylius and the Farnsworths. If on the other hand, it is in Lot No. 21, the Arnolds have title to it in common with Mylius. The Mylius title to Lot No. 15, according to his claim, goes back to a sale of that lot, by David Goff, Commissioner of Forfeited and Delinquent Lands, to L. D. Morrell, in, 1840, and a conveyance of it to him by a deed dated, December 13, 1841. Later, it having become again forfeited, Goff, as Commissioner of School Lands, sold and conveyed it to Squire B. Ward, by a deed dated, May G, 1871. From Ward, it passed to Isaac Baker ami others, and from them to Mylius and Carl Kupfer and Farnsworth became interested in it with him. The Arnold title to Lot No. 21 also goes back to the Goff division of the Phillips and Law Survey. Goff sold it to Samuel Morrison. Later it became delinquent for nonpayment of taxes, in the name of John L. Hare, and was sold by the sheriff and conveyed by Wm. Bennett, Eeeorder, to Nicholas Marstiller, who by a deed dated, March 2, 1878, conveyed it to Jonathan Arnold, the ancestor of the Arnolds who are parties to these suits. Mylius acquired an undivided half of that lot and Farnsworth became interested in it with him.

The conflict in title on the western side of Lot No. 21 is similar. On that side, Lot No. 20 of the Phillips and Law Survey adjoins it, and, in that lot, the Arnolds do not claim ever to have had any title. Baker Brothers, Isaac Baker and others, owned 535 acres in it, which they conveyed to Mylius by a deed dated, Aug. 18, 1879, and Kupfer and Farnsworth became interested in it with him.

The Arnold claim and contention as to the location of Lot No. 21, would shift it south about 162 poles and west about 100 poles from that given it by the lines laid down on the Goff may) with reference to which it was originally sold and conveyed by him, and thus make it take in part of the northern end of Lot No. 15 and part of the eastern portion of Lot No. 20.

The tax deeds and some of the other conveyances under which Mylius claims title, in all of the three lots contain particular descriptions purporting to locate them agreeably to the contention of the Arnolds, but they go back by reference and deraignment to the lots as sold and conveyed by Goff in 1840. Most, if not all of them contain, in some form, general deseriptons by the numbers given the lots by Goff in his sales, deeds and map. While there has been much inconsistent conduct on the part of Mylius with respect to the locations of his lands, and he has uniformly claimed for and against location as determined by the Goff map, as it has suited his interests, his position being determined always by the situation and circumstances and the parties he was dealing with, and possibly some such conduct on the part of all the other parties, it remains, nevertheless, that he has always been, insistent upon his right to adhere to the locations agreeable to the Goff map, in his contentions for land in the northern end of the original survey.

He sold the timber off the land in dispute as between Lots Nos. 15 and 21. He sold and conveyed to the Otter Creek Boom and Lumber Company, through Wm. G. Parsons, 181 3/4 acres, as being in Lot No. 21, and 478 3/4 acres, as(being in Lot No. 20. The decree he complains of extends Lot No. 21 westward so as to include that. 178% acres and directs that, in the partition of Lot No. 21, he shall be charged with that area, as having been received or taken out of his share. In the opinion filed by the trial court as well as in the brief filed for the Arnolds, it is asserted that he had no land in Lot No. 20 at the date of his deed to Parsons, because he had previously conveyed his entire interest in the 535 acres, known as the Hartman land, to Carl Kupfer, and, apparently, he had, and Kupfer had conveyed the same land to the Otter Creek Boom and Lumber Company. Nevertheless, the deed from Mylius to Parsons recites an unrecorded deed from 'Kupfer to him for the land conveyed to Parsons. No doubt, these inconsistent acts are founded upon differences in location, and the lands conveyed by him and Kupfer to the Otter Creek Company are not identical, he having conveyed to Kupfer and Kupfer to the Otter Creek Company, with reference to the locations claimed by the Arnolds, and he to Parsons, with reference to the location he now contends for. At any rate, he is charged with what he did convey, as being in Lot No. 21, while he contends, it is in Lot No. 20, and if he is right, he should not be charged wdth it. Here, as well as at the south of Lot 21, there is a controversy as to boundary lines, upon the; determination of which very substantial...