Cecil v. Clark

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON, P
Citation30 S.E. 216,44 W.Va. 659
PartiesCECIL et al. v. CLARK et al. HALL et al. v. SAME
Decision Date09 April 1898

30 S.E. 216
44 W.Va.
659

CECIL et al.
v.
CLARK et al.
HALL et al.
v.
SAME

Supreme Court of Appeals of West Virginia.

April 9, 1898.


Partition—Jurisdiction—Equity—Jury Trial-Co-tenants—Purchase of Tax Title—Rights of Parties—Adverse Claims—Judgment—Collateral Attack—Forfeited School Lands— Husband and Wife — Deed — Acknowledgment.

1. The fact that one tenant in common has been ousted by another in sole possession, claiming the whole under conveyance from another co-tenant, will not debar a court of equity from jurisdiction in partition, so long as the right of entry is not barred by the statute of limitations. They are still co-tenants for the purpose of partition, under section 1, c. 79, Code 1891. In such suit the court may pass on the adverse right claimed by the co-tenant.

2. In matters of such nature as give right to a jury trial under the constitution, the legislature cannot extend equity jurisdiction over them, and deprive the party of jury trial against his will.

3. Where already, at the time of the adoption of the constitution, equity exercised jurisdiction in certain matters, the clause of the constitution guarantying jury trial does not relate to such matters or deprive equity of jurisdiction therein to act without a jury.

4. A tax purchase by one tenant in common of the land owned in common is but a redemption, and inures to the benefit of co-tenants. So with a purchase under a sale of land under the common title forfeited for taxes, and sold by commissioner of school lands.

5. Is it necessary, to enable one tenant in common to share in the benefit of an adverse title or incumbrance purchased by a co-tenant, that the two tenants have acquired their right by separate instruments?

6. Can a tenant in common, who has ousted his co-tenant, and claims adversely, buy to his sole benefit an adverse incumbrance or title?

7. As a general rule, a tenant in common cannot purchase to his exclusive benefit an outstanding adverse incumbrance or title to the common property; but his co-tenant, to participate in its benefit, must, within a reasonable time, make his election to claim its benefit and contribute to the expense of its purchase. If he unreasonably delays until there is a change in the condition of the property, or in the circumstances of the parties, he will be held to have abandoned all benefit arising from the new acquisition.

8. In such case, before the co-tenant can be held to have abandoned the benefit of the purchase, it must appear not only that he knew of the purchase, but of an adverse claim to its exclusive benefit, set up by his co-tenant. He may reasonably presume the acquisition was made to support, not to defeat, the common title.

9. Where, upon one ground, a court of equity has jurisdiction, it will give complete relief, even in matters as to which, considered alone, it would not have jurisdiction.

10. Where a proceeding is instituted by a commissioner of school lands in a circuit court of a county to sell land forfeited for nonentry in that county, and there is a redemption under it, and the land declared exonerated from forfeiture, and it turns out that no part of the land is in that county, yet the state cannot, in a collateral proceeding, deny the validity of the proceeding or the redemption for want of jurisdiction in the court, nor can strangers nor privies in estate with those who asked and were allowed redemption.

11. A circuit court acting in proceeding by a commissioner of school lands to sell forfeited land under chapter 134, Acts 1872-73, though the proceeding be in nature administrative, not judicial, is yet, so far as its jurisdiction is concerned, to be regarded as a court of general jurisdiction, and in a collateral proceeding no proof of the existence of facts essential to jurisdiction is required, nor can the same be received to disprove their existence. It is presumed that the court ascertained those facts giving it jurisdiction to exist.

12. In the case of an inferior court, if its record does show that facts necessary to give it jurisdiction existed, its jurisdiction will not be open to attack, nor can proof of such facts be demanded, or disproof thereof admitted, in a collateral proceeding.

13. A deed by husband and wife must have been signed by him when acknowledged by her. She cannot acknowledge a paper not signed by him. It must be one deed, not separate or duplicates, one executed by the husband, the other by the wife, though both are to same effect.

Dent, J., dissenting.

(Syllabus by the Court.)

Appeal from circuit court, Summers county; A. N. Campbell, Judge.

Actions by W. P. Cecil and others and J. R. Hall and others, respectively, against E. W. Clark and others, trustees of Flat Top Coal Land Association. These suits were united, and tried together. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. S. Clark, A. W. Reynolds, and J. W. Hale, for appellants.

Couch, Flournoy & Price, Mollohan & McClintic, D. W. Mc-Claugherty, Dauthitt & Ayers, and P. W. Strother, for appellees.

[30 S.E. 217]

BRANNON, P. By patent, In 1851, Virginia granted to Henley Chapman and David Hall a tract of 1, 750 acres of land lying in Mercer and Tazewell counties, "the greater part being in Mercer." Later the patentees conveyed 825 acres of it to Perdue, leaving 925 acres, but called in these cases 850 acres. The deed recited that the land conveyed to Perdue was all that part of the original survey lying in Mercer; but it gave metes and bounds not certainly telling whether it took all land in Mercer, and the patent said the greater part was in Mercer, and oral evidence shows some of the 850 acres remnant in Mercer. McDowell county was formed wholly from Tazewell in 1858, and took in all of this land that was in Tazewell. Chapman and Hall died, leaving each five children. Hail died in 1866 leaving a widow, Mary E. Hall, and five children. He left a will giving his estate to his wife for life, with power of disposition, and remainder to his children. In 1875, Mary E. Hall conveyed one undivided fourth of the 850 acres to Johnson under contract that, as the tract had been omitted from the tax books of Mercer, Johnson would replace it on the books, and pay back taxes, and keep it on the books. The deed described the land as In Mercer. Thus Johnson became owner of half the Hall half. In December, 1881, all the Hall heirs gave Johnson an option to purchase the other half of the Hall half, and under it they conveyed it to Johnson, 18th December, 1882. By deed of August 2, 1882, Manilius Chapman, one of the five heirs of Henley Chapman, conveyed the whole of the Chapman moiety to Johnson. The Chapman heirs, in 1889, brought a chancery suit against Johnson and others to cancel the deed from Manilius Chapman to Johnson, and certain conveyances under which, from Johnson, the trustees for Flat Top Coal Company, claimed this Chapman moiety, and asked partition and assignment of their shares. In 1889 the Hall heirs brought a chancery suit against Johnson and others to cancel their deed to Johnson for the half of the Hall moiety, on the ground of fraud in its procurement, and asked partition of the land and the assignment of their shares. Both sets of heirs attacked a tax deed made to the coal company as assignee of a tax purchase made by Johnson affecting their entire interest, and also a conveyance made by the commissioner of school lands of McDowell county to the coal company under a sale in a proceeding in the circuit court of that county against the land in controversy as forfeited. The cases were heard together. The decree admitted four of the Chapman heirs to partition under their father's right to the Chapman moiety, giving the coal company the Manilius Chapman interest, and refused to cancel the deed from the Hall heirs to Johnson, finding the charge of fraud not sustained, and that none of them were entitled to have partition, except Mrs. Torbett, and gave her partition to have assigned to her one-tenth. The trustees holding title for the coal company appeal. So do the Hall heirs.

The first question is one of jurisdiction in equity. It is said there is no jurisdiction on the basis of partition, and this because the Chapman and Hall heirs have been ousted, and that the trustees of the coal company are in possession holding and claiming by title and claim adversely to the plaintiffs, and that equity has no jurisdiction in partition when the parties hold by adverse title, and that the plaintiffs must sustain their right at law. Under the old common-law writ of partition, and in suits in equity purely for partition, prior to the statute found in Code 1891, c. 79, § 1, the court would not pass on conflicting titles; and, where the rights of the parties were involved in adversary claims, would grant no partition until the title was settled by the proper action at law. Therefore, when a joint tenant, tenant in common, or parcener did such acts as constituted an actual ouster of another, that other could not maintain a writ of partition or chancery suit for partition, but must, by writ of right, establish right to an undivided interest. Where one conveyed the whole tract to a stranger, and under his conveyance the stranger took possession, that was an actual ouster of the other co-tenants, and they could not have partition until they recovered at law admission to their undivided interests, and then could have partition. But that statute has wrought some change. This inability to give effective relief in cases of partition because of the presence of a controversy or question as to the title detracted from the efficiency of the remedy in equity in matters of partition, and this act was meant to change the rule theretofore prevailing by enabling the court to try all the questions of title incidental to the partition in hand. It was to give power to do just what the court had not till then been able to do, —pass on the title as between the parties interested under the common title....

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67 practice notes
  • Bennett v. Neff, No. 9780.
    • United States
    • Supreme Court of West Virginia
    • April 11, 1947
    ...secures the title in his own name, may be avoided by his cotenants and held to be a redemption for their benefit, Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Parker v. Brast, 45 W.Va. 399, 32 S.E. 269; Lannerd v. Burnam, 93 W.Va. 744, 117 S.E. 682, has no application to the facts of this cas......
  • Mary J. Bennett v. A. H. Neff, (No. 9780)
    • United States
    • Supreme Court of West Virginia
    • April 11, 1947
    ...secures the title in his own name, may be avoided by his cotenants and held to be a redemption for their benefit, Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; Parker v. Brast, 45 W. Va. 399, 32 S. E. 269; Lannerd v. Burnam, 93 W. Va. 744, 117 S. E. 682, has no application to the facts of th......
  • Webber v. Offhaus, No. 10120
    • United States
    • Supreme Court of West Virginia
    • December 12, 1950
    ...523; Downes v. Long Timber and Lumber Company, 99 W.Va. 267, 128 S.E. 385; Watson v. Watson, 45 W.Va. 290, 31 S.E. 939; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Chrislip v. Teter, 43 W.Va. 356, 27 S.E. 288; Hanley v. Watterson, 39 W.Va. 214, 19 S.E. 536; Yates v. Stuart's Adm'r., 39 W.Va.......
  • Kwass v. Kersey, No. 10622
    • United States
    • Supreme Court of West Virginia
    • March 16, 1954
    ...a litigant of a jury trial against his will. Lawhead v. Board of Trustees of Grand Lodge, 115 W.Va. 475, 176 S.E. 860; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216. But, if at the time equity had jurisdiction in certain litigation, the clause of our constitution guaranteening jury trial does n......
  • Request a trial to view additional results
68 cases
  • Bennett v. Neff, No. 9780.
    • United States
    • Supreme Court of West Virginia
    • April 11, 1947
    ...secures the title in his own name, may be avoided by his cotenants and held to be a redemption for their benefit, Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Parker v. Brast, 45 W.Va. 399, 32 S.E. 269; Lannerd v. Burnam, 93 W.Va. 744, 117 S.E. 682, has no application to the facts of this cas......
  • Mary J. Bennett v. A. H. Neff, (No. 9780)
    • United States
    • Supreme Court of West Virginia
    • April 11, 1947
    ...secures the title in his own name, may be avoided by his cotenants and held to be a redemption for their benefit, Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; Parker v. Brast, 45 W. Va. 399, 32 S. E. 269; Lannerd v. Burnam, 93 W. Va. 744, 117 S. E. 682, has no application to the facts of th......
  • Webber v. Offhaus, No. 10120
    • United States
    • Supreme Court of West Virginia
    • December 12, 1950
    ...523; Downes v. Long Timber and Lumber Company, 99 W.Va. 267, 128 S.E. 385; Watson v. Watson, 45 W.Va. 290, 31 S.E. 939; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Chrislip v. Teter, 43 W.Va. 356, 27 S.E. 288; Hanley v. Watterson, 39 W.Va. 214, 19 S.E. 536; Yates v. Stuart's Adm'r., 39 W.Va.......
  • Kwass v. Kersey, No. 10622
    • United States
    • Supreme Court of West Virginia
    • March 16, 1954
    ...a litigant of a jury trial against his will. Lawhead v. Board of Trustees of Grand Lodge, 115 W.Va. 475, 176 S.E. 860; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216. But, if at the time equity had jurisdiction in certain litigation, the clause of our constitution guaranteening jury trial does n......
  • Request a trial to view additional results

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