Bennett v. Neff

Decision Date11 April 1947
Docket Number9780.
Citation42 S.E.2d 793,130 W.Va. 121
CourtWest Virginia Supreme Court

Rehearing Denied June 23, 1947.

Appeal from Circuit Court, Nicholas County.

Syllabus by the Court.

1. Under Code, 51-2-2, a plaintiff who has clear legal title to real estate is not required to allege or prove actual possession thereof by him to maintain a suit in equity to remove a cloud upon his title to such real estate.

2. A deed in which the grantee is a designated person 'and all the heirs' of the husband of such person, and in which are incorporated, in the granting clause, words which convey real estate to the grantee, operates to vest the title to such real estate in the particular grantee and does not pass title to any interest or estate to the children of the husband who was living at the time of the delivery of the deed.

3. Delivery of a deed by the grantor with intent that it take effect as his deed and its acceptance, express or implied, by the grantee are essential to its validity.

4. No delivery occurs when deeds not signed by some of the grantors are given by a grantor who has signed and acknowledged them to the grantee in one of such deeds, upon the unperformed condition that they shall not become effective until signed and acknowledged by all of the grantors; and such deeds do not pass title to the real estate described therein to any of the designated grantees.

5. Fraud is never presumed and when alleged it must be established by clear and distinct proof.

6. In equity the finding of fact by the trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless it is clearly wrong or against the clear preponderance of the evidence.

7. A person owning no interest or estate in land assessed for taxation as a single tract in the name of the owner may, at the instance of persons in possession of parts of such tract but who own no interest or estate therein, purchase it at a sheriff's sale for delinquent taxes and, after he obtains a tax deed for such land, make valid deeds to such persons for separate parcels of land which lie within the entire tract.

W. G. Brown, of Summersville, for appellant.

A N. Breckinridge and B. P. Brown, both of Summersville, for appellee.


The plaintiffs, Mary J. Bennett and Cleveland Bennett, her husband, instituted this suit in June, 1943, in the Circuit Court of Nicholas County, to remove, as a cloud upon the title of the plaintiffs to a tract of 39 acres of surface land and a tract of 13 acres of land in fee located in Wilderness District of that county, certain designated deeds under which the defendants, A. H. Neff and Lula Bennett Neff husband and wife, claim to own and hold interests in those lands. The bill of complaint was filed at July rules, 1943. At the succeeding regular term of the circuit court the defendants filed their answer and cross-bill seeking affirmative relief against the plaintiffs and other designated persons, including Waldo Bennett, who on February 15, 1944, filed his demurrer and his answer to the cross-bill. The plaintiffs also filed a demurrer and an answer to the corss-bill of the defendants.

The case was heard upon the foregoing pleadings and upon depositions filed in behalf of the respective parties. By final decree, entered May 16, 1945, the court overruled the demurrers of Waldo Bennett and of the plaintiffs to the answer and cross-bill of the defendants, granted the plaintiffs the relief prayed for in their bill of complaint and dismissed the cross-bill of the defendants. From this decree the defendants, A. H. Neff and Lula Bennett Neff, obtained an appeal to this Court.

The lands involved in this controversy are parts of a 93 acre tract of land in Wilderness District, Nicholas County, formerly owned by C. H. Champ. He and his wife made a deed, irregular in form and dated December 12, 1888, in which they designated, in the premises, Louisa F. Bennett, the wife of S. L. Bennett, and all the heirs of S. L. Bennett as the grantee. In the granting clause the grantors convey to the grantee the real estate described in the deed. Louisa F. Bennett and S. L. Bennett, her husband, entered into possession of the land and lived upon it until the death of S. L. Bennett on January 25, 1921. After his death Louisa F. Bennett continued to live upon the land until her death on January 1, 1938. The Bennetts were the parents of seven children, Cleveland Bennett, Waldo Bennett, John William Bennett, Sarah Bennett Kelly, Rebecca Bennett Shuck, Ada Bennett Nutter, and Lula Bennett Neff. On June 1, 1920, and before the death of his father S. L. Bennett, John William Bennett died intestate leaving surviving him his widow and five children.

Some time prior to December 15, 1925, Louisa F. Bennett employed a surveyor to partition and divide the 93 acre tract into separate parcels. Her purpose in so doing was to convey one of such parcels to each of her six living children and the remaining parcel to the widow and the five children of her deceased son, John William Bennett, and to obtain from each of her children a stated annual amount for her support and maintenance during her lifetime. A plat which showed five 13 acre parcels and one 26 acre parcel and divided the tract designated as 93 acres, but which evidently contained only 91 acres, was made and seven separate deeds were prepared. Because of the language in the deed under which Louisa F. Bennett held the land, all the persons affected by the proposed partition entertained the belief that the children of Louisa F. Bennett and the widow and the children of her deceased son owned and held joint interests or estates in the land, and that it was necessary for them and the spouses of those who were married to join as grantors in any deed to the grantee for each of the parcels. It also appears that Louisa F. Bennett required, as consideration in each of the deeds to her children, the payment of $12 annually from each grantee for her support and maintenance so long as she lived and a provision to that effect, as part of the consideration, is incorporated in each of those deeds. Some of her children were willing, others unwilling, to pay that sum.

Seven separate deeds, dated December 15, 1925, were signed and acknowledged by Louisa F. Bennett, and her children and their spouses in each instance in which it was proposed that they should join as grantors of a particular parcel, except Rebecca Bennett Shuck and her husband who refused to sign any of the deeds and the widow and the children of John William Bennett and their spouses whose reason for not signing is not indicated. Five of these deeds were for parcels of 13 acres each and undertook to convey to Sarah Bennett Kelly, Rebecca Bennett Shuck, Ada Bennett Nutter, and Lula Bennett Neff, each a 13 acre parcel as the share of each of them, and to the widow and the children of John William Bennett a 13 acre parcel as his share, in the 93 acre tract. The deed in which Cleveland Bennett was designated as grantee was for the surface of a tract of 26 acres which included, within one boundary, the 13 acre parcel which he would otherwise have received in the petition, and the 13 acre parcel which would otherwise have been allotted to Waldo Bennett, and the deed in which Waldo Bennett was named as grantee was for the minerals underlying the same two parcels which were embraced within the description of the 26 acre tract of surface land.

These deeds, so signed and acknowledged, were given to Cleveland Bennett. The evidence relative to that transaction is not clear. He does not mention that phase of the matter in his testimony. According to the evidence of the surveyor, which is not contradicted, the seven deeds were brought to him by Cleveland Bennett about five or six years before the surveyor testified in the case in February, 1944, and they remained in his possession until the summer of 1943, at which time he returned them to Cleveland Bennett. Five of them, the deeds in which the designated grantees were, respectively, Ada Nutter, Sarah Kelly, Rebecca Shuck, Cleveland Bennett, and the widow and the children of John William Bennett, were produced at the depositions by counsel for the plaintiffs and all seven deeds were introduced in evidence by counsel for the defendants. None of them was ever recorded and it does not appear that any of them was ever actually received by any of the respective grantees, except Cleveland Bennett and Lula Bennett Neff, whose deed was given to her by Cleveland Bennett. She testified on that subject that she was told that the deeds 'wouldn't be much account to record' unless all the parties signed them.

Before the partition was undertaken, the taxes assessed against the 93 acre tract had at times been voluntarily paid by Cleveland Bennett, Waldo Bennett, Ada Bennett Nutter and A. H. Neff. The other children of Louisa F. Bennett, however, refused or neglected to contribute, and the land became delinquent for the taxes assessed against it for the year 1927. At this point, no satisfactory arrangement having been worked out among the children and the grandchildren for the payment of the taxes, and the parties designated in the various deeds dated December 15, 1925, regarding the proposed partition as incomplete and of no effect, the plaintiff, Cleveland Bennett, Waldo Bennett and the defendant A. H. Neff, who represented both himself and his wife, the defendant Lula Bennett Neff, in order to accomplish the partition of the tract of 93 acres by another method, entered into a verbal arrangement by which the land should be allowed to be sold for the taxes. They consented that a man named W. R Pitsenbarger, who was suggested for that purpose by Cleveland Bennett, should purchase...

To continue reading

Request your trial
1 cases
  • Sandy M. v. Donald M.
    • United States
    • West Virginia Supreme Court
    • October 26, 2023
    ... ... implied, by the grantee are essential to its validity." ... Syl. Pt. 3, Bennett v. Neff , 130 W.Va. 121, 42 ... S.E.2d 793 (1947); accord Syl. Pt. 5, Walls v ... Click , 209 W.Va. 627, 550 S.E.2d 605 (2001) ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT