Carneal v. Lynch 1

• Decision Date: 07 February 1895
• Citation: 91 Va. 114,20 S.E. 959
• Parties: CARNEAL . v. LYNCH et al.1
• Court: Virginia Supreme Court

20 S.E. 959

91 Va. 114

CARNEAL .

v.LYNCH et al.¹

Supreme Court of Appeals of Virginia.

Feb. 7, 1895.

Partition—Life Tenants and Remainder-Men —Decree for Sale — Effect ox Remainder-Men not in Esse — Quantity of Land Sold— Notice to Purchaser.

1. Under section 2432, Code 1887, which provides for the partition and sale of all classes of contingent remainders, and the reinvestment of the proceeds, and section 2562, declaring that "tenants in common, joint tenants and coparceners shall be compellable to make partition, " a life tenant of one moiety of land can maintain a suit for partition against the remainder-men in esse and the fee-simple owners of the other moiety.

2. A tenant for life of an undivided share of an estate, with remainders to his unborn sons, may file a bill for partition, and the decree will be binding on the sons, when in esse.

3. Where property sold under decree of court is correctly represented by a plat which discloses an encroachment of about 2 1/2 feet on a street, which plat is referred to in the advertisement of sale, and exhibited on the day of sale, a purchaser cannot plead ignorance of said encroachment.

4. Under Acts 1883-84, p. 494, where a corner lot in the city of Richmond has encroached on the street for 20 years the owner has title by adverse possession to the land encroached on.

Appeal from chancery court of Richmond; James C. Lamb, Chancellor.

J. D. Carneal purchased certain property at a judicial sale, and appeals from a decree declaring the title to be good. Affirmed.

J. L. Anderson, for appellant.

Courtney & Patterson, for appellees.

HARRISON, J. This is an appeal from a decree of the chancery court of the city of Richmond. It appears from the record that Benjamin Sutton, by the sixth clause of his will, gave to his two grandsons, William M. Lynch and Charles G. Lynch, a certain house and lot on the corner of Grace and Jefferson streets, in Richmond, for their lives, with cross remainders to their children; and, in the event of death of both without issue, then said property was to pass to their sister, Mollie A. Lynch, or her issue. Charles G. Lynch died leaving two children, who, under the terms of said will, are now the fee-simple owners of their father's moiety. On the 27th day of April, 1893, William M. Lynch, the life tenant in one moiety of said property, filed his bill in the chancery court of Richmond, praying for a sale of this property for partition, and a reinvestment of the proceeds, and for general relief. To this bill he makes, as parties defendant, his own five children, remainder-men in his moiety; the two children of his brother, Charles, fee-simple owners of their father's moiety; and his sister, Mollie A. Lynch. His children and his brother's children are all infants, and appear by guardian ad litem. All the proceedings in the case are regular, full, and complete. The commissioner's report and the evidence fully establish the propriety of granting the prayer of the bill. The court decreed the sale, and it was made, in accordance with the terms prescribed, to James D. Carneal. An upset bid was put in, and at a second sale said Carneal became the purchaser at $11,575; and on the 26 th day of June, 1893, the court entered a decree confirming said sale, but reserving to the purchaser leave to have the title examined within a reasonable time. Counsel for the purchaser examined the title, and made two objections thereto. The court overruled both objections, and on the 9th day of August, 1893, entered a decree fully confirming the sale to J. D. Carneal, directing that he forthwith comply with the terms. It is from this decree that the case is before this court on appeal.

There are two assignments of error, which are the two objections made by the appellant to the title to the property. The first is that William M. Lynch being only a life tenant in one moiety of the land, the remainder of said moiety being unascertained, and the other moiety being owned in fee simple by infants, he, the said William M. Lynch, had no power in law to maintain a suit for partition and sale of the whole of said land. This presents the simple question whether a life tenant of one moiety of land can maintain a suit for partition against the remainder-men, in esse, of that moiety, and the fee-simple owners of the other moiety. The bill is framed in a double aspect, being brought under section 2432 of the Code, which provides for the sale of contingent estates, and under section 2562, which provides for the partition of lands. This latter section provides that "tenants in common, joint tenants and co-parceners shall be compellable to make partition, " etc. If, then, William M. Lynch, the life tenant in one moiety, is in law a tenant in common with the children of his brother, who are the owners in fee of the other moiety, it would seem clear that he can maintain a suit to compel partition against his cotenants. Mr. Minor says: "A tenancy in common is Where two or more hold the same land, with interests accruing under different titles, or accruing under the same title, but at different periods, or conferred by words of limitation importing that the grantees are to take in distinct shares." Minor, Inst. p. 494, citing 1 Steph. Comm. 323. Judge Lomax says: "A tenancy in common is where two or more persons hold lands or tenements in fee simple, fee tail, or for term of life or years, by several titles, not by a joint title, and occupy the same lands or tenements in common, from which circumstance they are called 'tenants in common, ' and their estate a 'tenancy in common.'" 1 Lomax, Dig. p. 641. According to these high authorities, one of the conditions creating a tenancy in common is where two or more persons hold the same land, with interests accruing under the same title, but at different times. The record...