Cecil v. Hall.

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON, P.
Citation44 W.Va. 659
PartiesCecil et at. v. Clark et al.Hall et al. v. Same.Cent,Judge, dissenting).
Decision Date09 April 1898

44 W.Va. 659

Cecil et at.
Clark et al.
Hall et al.

Cent, Judge, dissenting).

Supreme Court of Appeals of West Virginia.

Submitted March 25, 1898
Decided April 9, 1898.

[44 W.Va. 659]

Partition Equity Jurisdiction Co-Tenancy Statute of Limitations.

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, chapter 79, Code 1891. In such suit the court may pass on the adverse right claimed by the co-tenant.

[44 W.Va. 660]

2. Equity Jurisdiction Jury Trial Constitutional Law.

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. Equity Jurisdiction Jury Trial Constitutional Law.

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. Co-Tenancy Purchase of Tax Title Forfeiture for Taxes.

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. Co-Tenancy Adverse Title Purchase by Co-Tenant.

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. Co-Tenancy Ouster of Co-Tenant Purchase of Adverse Title.

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. Co-Tenancy Purchase of Adverse Title Laches of Co-Tenant.

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 onpense 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. Co-Tenancy Purchase of Adverse Title Knowledge of Purchase.

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. Equity Jurisdiction.

Where, upon one ground, a court of equity has jurisdiction, it

[44 W.Va. 661]

will give complete relief, even in matters as to which, considered alone, it would not have jurisdiction.

10. Forfeiture for Taxes Redemption Collateral Attack.

Where a proceeding is instituted by a commissioner of school hinds 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, end 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.

11. Forfeiture for Taxes-Jurisdiction of Court Collateral Attack Presumption.

A circuit court acting in proceeding-by a commissioner of school lands to sell forfeited land under chapter 124, 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. Jurisdiction of Court Record Collateral Attack.

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. Husband and Wife -Deed Acknowledgment.

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, ix>t separate or duplicates, one executed by the husband the other by the wife, though both are to same effect,

Appeal from Circuit Court, Summers County.

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.


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

[44 W.Va. 662]

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

Brannon, President:

By patent, in 1851, Virginia granted to Henley Chapman and David Hall a tract of one thousand, seven hundred and fifty acres of land lying* in Mercer and Tazewell counties, "the greater part being in Mercer." Later the patentees conveyed eight hundred and twenty-five acres of it to Perdue, leaving nine hundred and twenty-five acres, but called in these cases eight hundred and fifty 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 eight hundred and fifty 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. Hall 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 eight hundred and fifty 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

[44 W.Va. 663]

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 of equity purely for partition, prior to the statute found in Code 1891, c. 79, s. 1, the court would not pass on conflicting titles; and, where the rights of the...

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1 practice notes
  • State Ex Rel. I. M. Conley v. Thompson, (No. 5543)
    • United States
    • Supreme Court of West Virginia
    • October 27, 1925
    ...shows want of jurisdiction, applies to courts of limited or special jurisdiction. Shank v. Eavenswood, 43 W. Va. 242; Cecil v. Clarke, 44 W. Va. 659. So that the appointment of relator is not subject to collateral attack by respondent, and as he never made application to the court to have s......
1 cases
  • State Ex Rel. I. M. Conley v. Thompson, (No. 5543)
    • United States
    • Supreme Court of West Virginia
    • October 27, 1925
    ...shows want of jurisdiction, applies to courts of limited or special jurisdiction. Shank v. Eavenswood, 43 W. Va. 242; Cecil v. Clarke, 44 W. Va. 659. So that the appointment of relator is not subject to collateral attack by respondent, and as he never made application to the court to have s......

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