Davis v. Tebbs

• Decision Date: 08 April 1886
• Parties: DAVIS v. TEBBS AND ALS.
• Court: Virginia Supreme Court

81 Va. 600

DAVIS v. TEBBS AND ALS.

Supreme Court of Appeals of Virginia.

April 8, 1886

Appeal from decree of circuit court of Loudoun county, rendered October 25, 1880, in the chancery cause therein pending, in which Samuel J. Tebbs was plaintiff and Alexander G. Davis was defendant. The object of the suit was to have partition of a tract of 202 acres, one rood and thirty-five perches of land, situate in said county, near Aldie, and held by defendant under a deed executed by Thomas Triplett, dated December 20, 1852. Plaintiff claimed one-third of the land under the will of his grandfather, William Carr, deceased which was probated in Prince William county, Virginia February 8, 1791; but admitted the title of Davis through Triplett, to two-thirds thereof, to which title had been derived through said will by plaintiff's two sisters, who had passed the same to Triplett.

The decree of the circuit court being adverse to the defendant Davis, he obtained from one of the judges of this court an appeal and supersedeas.

Opinion states the case.

John M. Orr and Joseph Christian, for the appellant.

Payne & Alexander, for the appellee.

OPINION

LEWIS, P.

The plaintiff in the court below, the appellee here, filed his bill on the 20th of June, 1867, alleging that he was entitled to an undivided third interest in a certain tract of land, situate in the county of Loudoun, derived by him under the will of his grandfather, William Carr, senior, deceased, and which land was in the possession of the defendant, the appellant here. That under the then recent construction of the will by this court, in the case of Tebbs v. Duval, 17 Gratt. 349, Mrs. Betsy Tebbs, daughter of the testator and mother of the plaintiff, took an estate for life in the land, with remainder in fee to such of her children as might survive her. That the life tenant died on the 18th of March, 1852, leaving surviving her three children, whose interest thereupon became vested. That by some arrangement one Thomas Triplett, a son-in-law of the said Betsy Tebbs, had become entitled to the interests of two of the surviving children, sisters of the plaintiff, and that by deed dated the 20th of December, 1852, the said Triplett had undertaken to convey the absolute title to the whole tract of land to the defendant. And the prayer of the bill was that partition of the land between the plaintiff and the defendant be decreed; that an account of rents and profits be ordered, and for general relief.

The defendant demurred to the bill, and also answered. And the cause coming on to be heard, the demurrer was overruled and a decree entered for the plaintiff; whereupon the defendant appealed.

Various errors are assigned, of which the first is that the circuit court erred in overruling the demurrer. It is insisted that the bill shows no equity on its face, and that the plaintiff's right ought first to have been established in an action at law. We are of opinion that this assignment is not well taken. The jurisdiction of a court of equity to decree partition in a case like the present is too well established to admit of doubt. Indeed, the objection of the appellant is decisively met by the statute itself, which, in order to prevent a multiplicity of suits, expressly confers on courts of equity jurisdiction of all questions affecting the legal title to lands, of which partition is sought by a suit in equity. It enacts as follows:

" Tenants in common, joint tenants, and coparceners shall be compellable to make partition, and the court of equity of the county or corporation wherein the estate, or any part thereof, may be shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceeding." Code 1873, ch. 120, sec. 1; 2 Min. Insts. 416, et seq.

It is also contended that the bill is demurrable, because it does not allege that the land was purchased by the defendant with notice of the plaintiff's claim. But this position is clearly untenable. An authenticated copy of the will is exhibited with the bill, from which it appears that, in 1791, the will was duly admitted to probate and ordered to be recorded. The presumption, of course, is, though the record does not show, that it was recorded. But whether recorded or not, it is referred to in subsequent deeds which are links in the chain of title conveyed by Triplett to the defendant in 1852, and thus the latter was put upon inquiry when that conveyance was made. And " whenever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty." Cardova v. Hood, 17 Wall. 1; Effinger v. Hall, 81 Va. 94.

The case of Carter v. Allen, 21 Gratt. 241, upon which the appellant relies, has no application to the present case. There land was sought to be recovered on the strength of a latent equity of...