Bolling v. Teel

• Decision Date: 13 July 1882
• Citation: 76 Va. 487
• Parties: BOLLING v. TEEL ET ALS.
• Court: Virginia Supreme Court

76 Va. 487

BOLLING v. TEEL ET ALS.

Supreme Court of Appeals of Virginia.

July 13, 1882

Writ of error to judgment of circuit court of Floyd county in suit of John L. Teel and other heirs of Amelia Teel, deceased against Henry Bolling, to recover three hundred and eighty-two acres of land in Floyd. Amelia Teel was a daughter of John Ferguson, deceased, in the partition of whose real estate in 1823, this tract was assigned by the commissioners to her husband, " " Mankin Teel, as legatee. " The defendant claimed by deed signed by Mankin Teel and Amelia, his wife, to Jacob and John W. Helms in 1827. In the certificate of the privy examination of Mrs Teel, the justices failed to state that " the deed was explained to her. " Pending the suit several plaintiffs aliened their interests in the land. Mankin Teel died in 1865; his wife in 1870. Opinion of the court states the remaining facts. Judgment for plaintiffs, and writ of error awarded defendant.

John E. Penn, for the appellant.

1. A substantial conformity to the statute is all that is required in the certificate of a feme's acknowledgment. Hairston v. Randolph, 12 Leigh 458. In this case the justices say: " We certify that we did examine Amelia Teel privily and apart from her husband, and that she freely and voluntarily acknowledged the indenture hereto annexed, and that she did it without the persuasions or threats of her said husband, and that she was willing the same should be recorded in the county court of Floyd county." If everything in this certificate be true, it is not reasonable to infer that she did not know what she was doing, and that the deed was not explained. Tod v. Baylor, 4 Leigh 537.

2. The record does not show that the feme owned the land. Commissioners to make partition allotted this land to " Mankin Teel as legatee." The report was confirmed by the decree of the court. Right or wrong, that decree must stand. It cannot be questioned by appeal, or collaterally. Baylor v. Dejarnette, 13 Gratt. 162; 2 Phil. on Ev. 60 et seq. Martin Teel's deed conveyed a good title to those under whom appellant claims.

3. After ejectment brought, the plaintiffs aliened their interest in the land and the judgment is erroneous under § 28, ch. 131, Code, 1873.

J. L. Tompkins, Hale & Brown, for the appellees.

OPINION

STAPLES, J.

This is an action of ejectment brought in the circuit court of Floyd county. The parties having dispensed with a jury, the whole matter of law and evidence was referred to the court.

Upon the trial it appeared that in the year 1823 a suit was instituted in the county court of Franklin for the purpose of partitioning the real estate of John Ferguson, deceased, among his heirs, of whom Amelia, the wife of Mankin Teel, was one. The commissioners, appointed by the court to make the partition, reported that " they had allotted to Mankin Teel, legatee, a tract of 382 acres, lying in Montgomery county," and this report was afterwards confirmed by the court. It would seem, however, that no deeds of conveyance were executed by any of the parties, nor were any directed or required under the decree of the court. Mankin Teel and wife held possession of the three hundred and eighty-two acre tract until the sale and conveyance, hereafter to be more particularly mentioned.

As has been already stated, the commissioners charged with making the partition allotted the land to Mankin Teel, instead of his wife, whose inheritance it was. This was probably due to the ignorance of the commissioners, and the confirmation of this report was no doubt the result of inadvertence on the part of the court.

It is now claimed that the effect of the decree was to clothe Mankin Teel with the legal title to the land, to the exclusion of his wife, and however erroneous it may be, that decree cannot be successfully assailed in any collateral proceeding. It is a very well settled doctrine of courts of equity that a decree of partition does not of itself operate as a conveyance of the title. Such a decree does not purport to invest the parties with title to their several allotments. Hence it is that the court, in making partition, usually requires that mutual conveyances shall be executed. If any of the parties are laboring under disability, the proper deed is made by a commissioner of the court on their behalf, and such deed under our statute has the same effect in passing the title as if the parties had been competent and had actually executed the same. See 2 Minor's Ins. 424; 2 Daniel's Ch. Practice, 1061, 1161; 1 Barton Ch. Prac. 293-4; Freeman on Cotenancy and Partition, § 427.

The case of Hurt v. Jones and Wife, 1 Matthews 341, cited by counsel, is not at all inconsistent with this view. In the opinion delivered by Judge Burks, it is conceded throughout that Hurt, the purchaser, did not acquire under the decree of the court the legal title to his wife's interest in the estate, but a mere equitable right which was sufficient for his protection in an equitable forum, to which the parties complaining had applied for the adjudication of their rights. That case is in the line of the authorities which hold that a decree for a partition in equity is not of itself sufficient to pass the legal title, but at best confers a mere equitable right. The 15th section of chapter 159, Code of 1873, does not alter this rule of the chancery courts. The object of that section was simply to require the registration of decrees of partition or for the assignment of dower, precisely as is required the registration of other muniments of title.

In neither case does the registration give any new effect or impart any additional force to the decree, deed, or assignment. Its efficacy in passing the title depends upon considerations outside the recording acts; the sole purpose and effect of the registration being to give notice of the instrument or writing when duly recorded, whether the estate transferred be legal or equitable.

To give the decree of partition in this particular case, the construction insisted upon by the defendant's counsel would be to extend its operation and effect farther than is warranted by any just rule of interpretation. In all cases, then, where at common law and under our statutes a voluntary partition in pais can only be made by deed (as in case of joint tenants), it would seem that a mere decree of partition will not of itself operate as a conveyance of the legal title to the parties of their several allotments. But in such cases there ought to be mutual conveyances made to pass the legal title.

Looking at the bill and proceedings in the county court, we see that the object was a partition of the real estate of John Ferguson among his heirs, of whom Mrs. Teel was one, and that her husband had no sort of interest in any part of this estate, except as tenant by the curtesy of such portion as should be allotted to his wife. It cannot be supposed that either the commissioners, or the county court, intended to confer upon the husband a title in fee to his wife's inheritance. What they meant, no doubt, was that the husband should hold the land in right of his wife--that is to say, as tenant by the curtesy--and after his death the inheritance should revert to her as its proper owner. This is the just interpretation of the decree, as read by the bill, the orders, and other proceedings in the county court.

It has been said, however, that if Mankin Teel acquired no title under the decree of the county court, neither did Mrs. Teel that no conveyances having been executed by her coparceners, Mrs. Teel had the legal title only to one-ninth of the 382-acre tract, and this one-ninth is all her children can recover in the action of ejectment. The answer to this is, that Mankin Teel had no title to or interest in any part of John Ferguson's estate, except as tenant by...