Cresap v. Brown
| Decision Date | 31 October 1911 |
| Citation | 72 S.E. 751,69 W.Va. 658 |
| Parties | CRESAP et al. v. BROWN et al. |
| Court | West Virginia Supreme Court |
Submitted March 1, 1910.
Syllabus by the Court.
When one person holds the legal title to land for the joint benefit of himself and others, all having equal rights in equity, any one of them may compel partition thereof at any time.
A bill for partition of the land by one of the equitable owners against his cotenants, including the one who holds the legal title, is not multifarious because it prays for the cancellation of an alleged fraudulent conveyance of the growing timber on the land, made by the holder of the legal title, and also for an accounting by him of proceeds of other sales.
Such holder of the legal title has no right to dispose of the joint property without the consent of his cotenants. The rights of all are equal in equity.
A purchaser for value from such holder of the legal title without knowledge of the latent equities of others, will be protected.
The pendency of a suit, brought to settle the estate of an equitable joint owner of land, against his co-owner, who holds the legal title, and others, but which does not seek to get in the legal title, or to have the rights of such equitable owner in the land adjudicated, will not defeat the rights of a subsequent bona fide purchaser from the holder of the legal title. The purchase, in such case, will not operate to defeat any proper decree which the court may make in the suit, and therefore the doctrine of lis pendens does not apply.
In a suit for partition and for accounting of proceeds of land, it is error to decree all the proceeds to the cotenant who holds them, and to compensate the others by an abatement pro tanto from his allotment of land. Each cotenant should have his share in both land and proceeds.
Appeal from Circuit Court, Randolph County.
Bill by Gustavus J. Cresap and others against Nannie I. Brown and others. Decree for defendants, and complainants appeal. Affirmed in part, and reversed in part.
W. G Bennett and Dent & Dent, for appellants.
S. V Woods and C. W. Maxwell, for appellees.
WILLIAMS P.
Judge John Brannon, Judge Samuel Woods, and C.J. P. Cresap were the equal owners of a number of tracts of undeveloped coal and timber lands situate in Barbour, Upshur, and Randolph counties, aggregating several thousand acres. The legal title was held by Judge Woods. The interest of Brannon and Cresap was a latent equity, but was never denied by Judge Woods in his lifetime, nor by his devisees since his death. The joint interest of all, and the trusteeship of Woods, appear from two declarations in writing signed by him, one held by Woods and another by Brannon. They are the same in substance, though differing a little in verbiage. The copy vouched by Woods' devisees bears date June 24, 1882, and after reciting how and from whom the lands were acquired, reads as follows, viz.: "For this land so purchased, John Brannon, C.J. P. Cresap and myself were to pay equal portions of the purchase money, and of all taxes and levies charged and chargeable thereon, and of all costs and expenses attending the care of the title thereof, and of all costs and expenses of every kind and character attending the surveying, dividing, selling, conveying and contracting the same, and every part thereof; and the proceeds of rents, profits and incomes thereof, shall be for the joint and equal benefit of each of us, share and share alike; and the following accounts are intended to show the details of all the matters arising out of the ownership of said lands." The accounts referred to in this paper do not appear in the record.
A number of small parcels of these lands were sold and conveyed to various persons by Woods in his lifetime, and some were sold by him which were not paid for, and not conveyed until after his death, when conveyances were made by his devisees. All three of the original owners are now deceased; Judge Woods, the last survivor, having died in 1897. All of them made wills, disposing of their respective interests in the aforesaid real estate.
Samuel V. Woods and J. Hop Woods were appointed administrators with the will annexed of their father, Judge Samuel Woods, deceased. Exercising the right which they claim their father had in, and exercised over, said lands in his lifetime, and having power of attorney from their codevisees, the administrators sold the standing timber on the lands to J. B. Moore and Henry Kepple for the cash consideration of $10.50 an acre, and conveyed the same to them by deed, dated December 16, 1902. The deed was recorded in the clerk's office of Randolph county on January 27, 1903. The deed also granted the right to manufacture the timber upon the land, and to remove it therefrom.
Gustavus J. Cresap, Rachel R. Cresap, and Mary B. Cresap, three of the devisees of C.J. P. Cresap, deceased, brought this suit against the executor and devisees of Judge John Brannon, deceased, the administrators with the will annexed, and the devisees, of Judge Samuel Woods, deceased, and Nannie I. Brown, one of the devisees of C.J. P. Cresap, deceased. J. B. Moore and Henry Kepple and J. B. Calkins, now composing the firm of J. B. Moore & Co., were also made defendants.
The suit has a fourfold object: (1) To partition the remaining portion of said lands, consisting now of about 3,500 or 3,600 acres; (2) an accounting against the estate of Samuel Woods, deceased, for the proceeds derived from sales of portions of said land; (3) to cancel the deed made to Moore and Kepple for the timber; and (4) to enjoin the cutting of timber.
The devisees of Judge Brannon answered and united in the prayer of plaintiffs' bill; so that the suit is really a controversy between the devisees of Brannon and Cresap, respectively, on the one side, and the devisees of Samuel Woods on the other, with the right of Moore and Kepple, who claim to be complete purchasers from the Woods devisees, without notice of the equities of the Brannon and Cresap devisees, to be determined as an incidental matter. Two amended and supplemental bills were filed, and demurrers were interposed to each of them on the ground of multifariousness.
A final decree was pronounced on the 20th day of November, 1908, decreeing that J. Hop Woods and Samuel V. Woods, acting for themselves and as agents and attorneys in fact for their codevisees, had a legal right to sell and convey the timber to Moore and Kepple, and confirming the deed made to them. The court had previously awarded an injunction, restraining any operations on the land by Moore and Kepple, but had subsequently so modified the order as to permit Moore and Kepple to proceed with the construction of a railroad which they had commenced to build upon the land, for the purpose of removing the timber. The final decree dissolved the injunction wholly, and directed a partition to be made of the land, and permitted Woods' devisees to retain the whole of the proceeds from the timber sale, but directed the commissioners appointed to partition the land to abate from the allotment to be made to Woods' devisees so much land as would equal in value the share of the money that would otherwise have gone to the Brannon and Cresap devisees. From this decree, the plaintiffs and the devisees of Judge John Brannon, deceased, have appealed.
It is admitted by Woods' devisees in their answer that the Brannon and Cresap devisees, respectively, are equal owners of the land with themselves, but they claim the unqualified right to make sale of it whenever they may think proper. The only evidence of the trust which existed between Woods Brannon, and Cresap is the written declaration which we have quoted above. That writing does not show that Judge Woods had any greater interest in, or control over, the land than either one of his co-owners had. So far as it can be determined by the written declaration, Woods was the trustee, holding the legal title for the benefit of all, with no prescribed duties to be performed by him. The fact that Judge Woods did make sales of the lands, and did make conveyances therefor, without his joint owners uniting with him in such conveyances, does not prove that he had the absolute right to do so without the consent and acquiescence of his co-owners. Such sales and conveyances may have been made by virtue of an express agreement between them, relating only to those sales. But, even if there was no express agreement for the sale of those lands, the subsequent...
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