Custer et ux v. Hall et al.

• Decision Date: 22 October 1912
• Citation: 71 W.Va. 119
• Parties: Custer et ux v. Hall et al.
• Court: West Virginia Supreme Court

71 W.Va. 119

Custer et ux

v.Hall et al.

Supreme Court of Appeals of West Virginia.

Submitted February 28, 1911.

Decided October 22, 1912.

1. Descent and Distribution Estoppel Persons Entitled to Shares Estoppel by Record. The husband joins his wife in a deed conveying, in fee, her undivided interest in a tract of land, and joins in a covenant warranting generally the title thereto; the deed is void as to the wife because of her defective acknowledgment, and she dies, in 1871, intestate and without issue, leading her husbands Held:

I. That, under the statute then in force, the husband was her

sole heir.

II. The husband is estopped by his covenant, to claim title

to such interest, and the effect of the estoppel is to invest the grantee with his title. (p. 121).

2. Judgment Conclusiveness Matters Concluded Title to Land.

An adjudication of the title to a particular tract of land, or an undivided interest therein, is res judicata, between the same parties and their privies, upon the title to another tract of land, claimed adversely by them, in the same manner and under the same chain of conveyances. (p. 122).

3. Same Persons Concluded Joint Tenants.

A decree denying relief and dismissing plaintiff's bill, in a partition suit wherein adverse title is involved, is an adjudication, not only against plaintiff's title, but also against those whom he alleges to be his joint tenants under the same title with himself, and who are served with process and fail to appear. (p. 123).

4. Life Estates Adverse Possession by Life Tenant.

Possession by the life tenant is not adverse to the remaindermen. (p. 126).

5. Adverse Possession Elements Color of Title.

Mere naked possession, without color or claim, will not ripen into good title. (p. 126).

6. Tenancy in Common Mutual Rights of Tenants Adeverse

Possession.

Possession by one joint tenant, who asserts entire ownership, will not become adverse to 'his co-tenant until he has knowledge, actual or constructive, of such claim. (p. 126).

7. Adverse Possession Possession by Tenant Attornment to

Third Person.

Attornment by a tenant in possession, with knowledge of his lessor who takes no steps to regain possession, is sufficient to break the continuity of possession and stop the running of the statute. (p. 127). 8. Quieting Title Right of Action Undivided. Interest.

A party out of possession, having complete equitable title to certain undivided interests in land and a right to the legal title thereto, may maintain a bill in equity, against the party in possession claiming adversely to him, to obtain the legal title and to remove such adverse claim as a cloud upon it. (p. 128).

9. Equity Pleading Prayer for Relief.

Under the prayer for general relief, the court should grant such relief as the plaintiff's cause entitles him to, not inconsistent with the prayer for specific relief, (p. 129).

10. Same Jurisdiction Retention to Give Complete* Relief.

Equity, having jurisdiction of a cause for one purpose, will generally give complete relief by determining all the issues involved, thus avoiding a multiplicity of suits, (p. 129).

11. Taxation Forfeitures Sufficiency of Payment of Taxes.

Payment of taxes by one of two adverse claimants of land, both claiming title mediately from the same original owner, will prevent a forfeiture of the title to the state, (p. 130).

Appeal from Circuit Court, Fayette County.

Bill in equity by Ellen E. Custer and husband against M. J. Hall and others. From a decree for defendants, plaintiffs appeal.

Reversed and Remanded.

C. R. Summer field and C. W. Dillon, for appellants. A. P. Farley, for appellees.

Williams, Judge:

This suit was instituted July 31, 1900, to have certain deeds cancelled as clouds on plaintiffs title to a tract of 390 acres of land; to get in the legal title to four undivided sixths thereof to which plaintiff claims to have the complete equity; to enjoin defendants from cutting timber and for general relief. On final hearing the court held that the case was not one for equitable relief, and dismissed plaintiffs bill, but without prejudice.

The plaintiff Ellen E. Custer and the defendant M. J. Hall, wife of A. J. Hall, each claims to be the true owner of the land, both claiming title from the heirs of Levi Lively, deceased, as a common source. Levi Lively died in the sixties, seized of a tract of 2, 500 acres, leaving a widow Adeline, who thereafter intermarried with one John Hurt, and six children; viz.: Margaret A., who intermarried with Isaac Fisher; Harriet E., who intermarried with William Stinnett; Isabella, who intermarried with Benjamin Smith; Henry W.; Joseph W.; and James W.., the last named four being then infants. The tract of land in dispute was assigned to the widow as her dower. Both parties claim to have purchased and to have owned her life estate; and it appears from the evidence that, during the latter part of the seventies and nearly all of the eighties, plain- tiff was in possession by tenants, and that, in 1888, defendants got possession and have held it ever since. But the claim to the widow's life estate, and possession thereunder, are immaterial now, since she died July 21, 1889, whereupon all estate derived from her ended.

Plaintiff claims one undivided sixth of the land by deed dated 23rd December, 1870, from Harriet E. Stinnett (nee Lively) and her husband. But, because of the defective acknowledgment of the wife, the deed does not operate as a conveyance by her. Central Land Co. v. Laidley, 32 W. Va. 134. It appears, however, that Harriet E. Stinnett died, intestate and without issue, in April or May, 1871; and, as the law then was, her husband was her sole heir. Code 1868, ch. 78, sec. 1; Ried Y. Stuart, 13 W. Va. 338. The deed recites a consideration of $550.00, and warrants generally "all their right, title and interest" in the lands of which Levi Lively died seized, and states the interest granted to be one undivided sixth. The covenant of warranty is good as to the husband, and estops him to claim title; and operates to vest title in S. P. Custer. 3 Wash. Eeal Prop., sec. 1927; Irvin v. Stover, 67 W. Va. 356; Buford v. Adair, 43 W. Va. 211; Mitchell v. Petty, 2 W. Va. 470. In fact, the only evidence that William Stinnett ever afterwards claimed the land against his deed, is his joining as one of the grantors in a deed by H. W. Lively and a number of others to J. E. Hall in 1898, only two years before this suit.

Plaintiff claims another undivided sixth by deeds as follows: (a) deed from Margaret A. Fisher (nee Lively) and husband, to Mildred S. Brazie, made December 26, 1870; and (b) deed from Mildred S. Brazie and II. W. Brazie, her husband, to plaintiff, dated 9th January, 1871. But Mrs. Fisher's deed is void because it was made when she was an infant. Her deed to Mrs. Brazie, and the Stinnett deed to S. E. Custer, respectively, purport to convey the one-sixth, in the whole 2, 500 acre tract. After the death of Margaret A. Fisher, Lewis Tuggle, guardian for her two minor children, Mary Alice and Eliza Jane, brought a suit to sell a tract of 199 acres, being Lot No. 4, a part of the 2, 500 acres, which had been partitioned to their mother as one of the heirs of Levi Lively, on the ground that a sale of the same would be beneficial to their interests..

Ellen E. Custer was a party defendant to that proceeding, and filed her answer claiming Margaret A. Fisher's one-sixth in the whole 2, 500 acres, by virtue of the deed from her and her husband to Mrs. Brazie. The cause was referred to a commissioner to ascertain and make report to court of certain facts, among them, the age of Margaret A. Fisher at the time she and her husband conveyed her interest in the land to Mrs. Brazie. The commissioner reported that neither she nor her husband were then twenty-one years old. The decree made in that cause, 3rd of March, 1884, recites that there were no exceptions to the report, confirms it, and finds that Isaac A. Fisher and Margaret A. Fisher his wife were not competent, at that time, to make a deed; and decreed the two infant children, Mary Alice Fisher and Eliza Jane Fisher, to be the owners of the 199 acres, subject to their father's life estate, and directed a sale of it for their benefit. A copy of the proceedings in that suit is made a part of the record in this. That decree was an adjudication of the Fisher title against Ellen E. Custer, not only as to the 199 acre tract, but also as to the dower tract of 390 acres not directly involved. Because her claim of title to the two tracts is by the same deeds, and her present adverse claimants of the Margaret Fisher interest in the dower tract claim as privies in estate to Mrs. Fisher. Consequently, Mrs. Custer's claim to that one-sixth is res judicata. Preston v. Harvey, 2 H. & M. 55; 3 Va. & W. Va. Dig. p. 5667; Western Mining & Mfg. Co. v. Virginia Cannel Coal Co., 10 W. Va. 250; State v. Irwin, 51 W. Va. 192.

But the principle also applies with equal force against the defendant M. J. Hall, so far as it relates to the claim of any part of the Margaret A. Fisher one-sixth, by virtue of the deed from her and her husband to L. D. Fisher, made on the 16th January, 1871, for the reason that L. D. Fisher, who was Mrs. M. J. Hall's remote grantor, was a party to that proceeding, and claimed the Margaret A. Fisher interest under that deed which the court therein held to be void, for the same reason that it held void the deed to Mrs. Brazie which was made only a month or so before. That decree was rendered in 1884, and was not appealed from.

The other four-sixths plaintiff claims by purchase under judicial sale made in a similar guardian's suit brought in 1872, by P. J. Lawrence, guardian for Isabella Lively, Henry W. Lively, Joseph W. Lively and James W. Lively, infant children of Levi Lively, deceased, for the purpose of selling the interests in remainder of his wards, in the 390 acre dower tract. Their interests were sold, and purchased by S. E. Custer, on the 5th October,...