Depue v. Miller

Citation64 S.E. 740,65 W. Va. 120
CourtSupreme Court of West Virginia
Decision Date03 February 1909
PartiesDEPUE et al. v. MILLER et al.

64 S.E. 740
(65 W. Va. 120)

DEPUE et al.
MILLER et al.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1909.

Rehearing Denied May 14, 1909.

1. Husband and Wife (§ 48*)—Conveyances Between.

If a husband convey land directly to his wife, and she, in turn, attempt to reconvey it directly to him, by executing a deed to him, and after her death he convey it to a third person, and then die. the equitable title is in the heirs of the wife by descent, and the legal title in such third person or his successors in title.

[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 242, 243; Dec. Dig. $ 48.*]

2. Appeal and Error (§ 917*)—Review-Presumption in Favor of Correctness of Decision.

A general demurrer to a bill in equity challenges its sufficiency in all respects, and a decree sustaining such a demurrer is presumed, in the appellate court, to rest upon any sufficient ground disclosed by the bill, even though it was not assigned in writing, as a ground of demurrer, while others, not well taken, were.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3708; Dec. Dig. § 917.*]

3. Appeal and Error (§ 854*)—Wrong Reason for Correct Decision.

A sound decree, sustaining a demurrer, should not be reversed merely because the trial court assigned an erroneous or incorrect reason therefor.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3408, 3411; Dec. Dig. § 854.*]

4. Equity (§ 19*) —Jurisdiction — Equitable Title.

A purely equitable title cannot be maintained in a court of law, and, for that reason, all relief, respecting the same, must be sought in a court of equity.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 46, 47; Dec. Dig. § 19.*]

5. Limitation of Actions (§ 5*)—Equitable Rights.

The statute of limitations never runs against a right, the vindication of which belongs to the exclusive jurisdiction of the equity courts.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. l§§ 13, 15; Dec. Dig. § 5.*]

6. Equity (§ 17*)—Adverse Possession (§ 106*)—Legal Estates—Recognition.

Courts of equity recognize legal estates and titles, and in such courts such titles prevail over equitable ones. A title to land, acquired by adverse possession, is respected in courts of equity as well as in courts of law.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 39, 40; Dec. Dig. § 17;* Adverse Possession, Cent. Dig. § 605; Dec. Dig. § 106.*]

7. Equity (§ 71*)—Laches.

Laches will bar a purely equitable demand, and the period of delay allowed depends upon the peculiar circumstances of the case.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 204; Dec. Dig. § 71.*]

8. Equity (§ 72*)—Laches.

If the right of the plaintiff is clear and not dependent upon oral evidence, and no injury or prejudice to the defendant has resulted from the delay, as by the death of parties, change of conditions, loss of evidence, or the like, the cause of action is not barred by laches, unless the lapse of time and the circumstances are such as to raise a presumption of intent, on the part of the plaintiff, to abandon or relinquish the right.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 212-226; Dec. Dig. § 72.*]

9. Equity (§ 71*)—Laches.

Mere forbearance to compel rendition of a just debt or other right, the existence of which is clear beyond doubt, does not prejudice the party from whom it is due, and it is not inequitable to enforce rendition thereof after long delay; but if the length of time be long enough in itself, or with the aid of circumstances and conduct, to satisfy the chancellor that the plaintiff had abandoned his right before he brought suit to enforce it, his demand will be regarded as stale and lost by laches.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 209; Dec. Dig. § 71.*]

10. Equity (§ 71*)—Laches.

Delay, for a period less than 20 years, in the assertion of an exclusively equitable demand, fully proven by documentary evidence, under circumstances not in any way operating to the prejudice of the defendants, and tending to negative the inference of intent on the part of the plaintiff to abandon or relinquish the right, will not bar relief.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 204, 206; Dec. Dig. § 71.*]

[64 S.E. 741]

11. Equity (§ 752-*)—Laches.

Moral as well as legal considerations, such as ignorance of law or regard for the feelings of relatives, will be considered and given weight in determining whether the plaintiff has abandoned his cause of action; but such considerations do not relieve from, or stay, the statute of limitations, nor excuse delay, working prejudice by death of parties, loss of evidence, or other similar circumstances.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 227; Dec. Dig. § 75.*]

12. Curtesy (§ 8*)—Estates Subject to.

A husband has an estate by the curtesy, after the death of his wife, in lands which he had voluntarily settled upon her, if he did not, in express terms or by plain implication, relinquish such right in the instrument of conveyance.

[Ed. Note.—For other cases, see Curtesy, Cent. Dig. § 27; Dec. Dig. § 8.*]

13. Curtesy (§ 11*)—Estates Subject to. As the husband's estate by the curtesy in his wife's real estate is given by the law for reasons of public policy, and not created by contract between the husband and wife, no presumption of intention to preclude it arises from the mere fact of a conveyance from the former to the latter, however it may have been effected.

[Ed. Note.—For other cases, see Curtesy, Cent. Dig. § 35; Dec. Dig. § 11.*]

14. Equity (§ 150*)—Bill — Multifariousness.

If, under the circumstances stated in point 1 of this syllabus, the husband, after the death of the wife, has conveyed a portion of the land to persons who have, in turn, conveyed it, in separate portions, to others, so that it constitutes two tracts claimed by different persons, the heirs may assert their rights as to both of such tracts against all the interested parties in a single suit.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 371; Dec. Dig. § 150.*]

(Syllabus by the Court.)

Appeal from Circuit Court, Roane County.

Bill by Hal. H. Depue and others against H. W. Miller and others. Decree for defendants, and complainants appeal. Reversed and remanded.

Cunningham & Harper, for appellants.

Pendleton & Boggess, for appellees.

POFFENBARGER, J. In the circuit court of Roane county a demurrer to the bill of Hal. H. Depue and others, heirs at law of Henry Depue, was sustained and the bill dismissed. From this decree the plaintiffs have appealed.

The object of the suit is the cancellation of a number of deeds to clear the alleged title of the plaintiffs from cloud and obtain an accounting for timber taken from the land. They are out of possession, but the bill proceeds upon the theory of an equitable title only in the plaintiffs, which will not sustain an action at law for the recovery of possession. The facts alleged are substantially as follows: The ancestor being the owner of two tracts of land, the home place, containing 275 acres, and the Ward land, containing 433 acres, made a deed, on the 21st day of December, 1880, by which he conveyed both of said tracts directly to his wife, Anna B. C. Depue. Thereafter they resided together on the home place, until the death of the wife about July 19, 1889; but on the 25th day of May, 1889, about two months before her death, the wife attempted directly to recon-vey all the land back to her husband. In neither transaction was there a conveyance from both husband and wife to a trustee and then a conveyance by the trustee back to one of them. More than two years after the death of the wife, the husband, by deed, dated October 2, 1891, conveyed 103 acres out of the 433-acre tract to Julia A. Bridwell and Walter Bridwell. On the 9th day of June, 1892, the Bridwells conveyed to John C. and Ira S. Bartlett 35 3/4 acres of the land so conveyed to them. On the residue thereof they executed a deed of trust to Walter Pendleton, trustee, to secure a debt due to H. W. Miller, under which it was sold; Miller purchasing it. On February 23, 1903, the Bartletts conveyed their part of the 103-acre tract and some other land to Sidney Wine, who has possession thereof, while the other is in the possession of Miller. Both tracts have been denuded of their timber by these purchasers. Henry Depue died about the 3d day of January, 1907, and this suit was commenced on the 16th day of February, 1907.

If it shall appear that the plaintiffs have only an equitable title to the land, a court of equity is the only forum in which it can be vindicated, and the bill should have been entertained, unless it is multifarious or relief is barred by laches. No other conceivable grounds of defense appear on its face. If, on the contrary, they have the legal title, giving a right of action at law, they have no standing In a court of equity to recover possession, for they do not need its aid, nor to remove a cloud from the title because they are out of possession. In order to maintain a bill to remove cloud from title, the plaintiff must have not only the legal title, but possession of the land as well. Mackey v. Maxin, 63 W. Va. 14, 59 S. E. 742; Harr v. Shaffer, 45 W. Va. 709, 31 S. E. 905; Smith v. O'Keefe, 43 W. Va. 172, 27 S. E. 353; Moore v. Mc-Nutt, 41 W. Va. 695, 24 S. E. 682.

Indubitably the deed from Henry Depue to his wife vested in her the equitable title to the land (McKenzle v. Ohio River R. R. Co., 27 W. Va. 306), and the deed from the wife back to the husband was utterly void (Smith v. Vineyard, 58 W. Va. 98, 51 S. E. 871; Austin v. Brown, 37 W. Va. 634, 17 S. E. 207; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216). Obviously at the date of the death of the wife she held the equitable title and the husband the legal title. On her death the former went to the plaintiffs by descent. If the legal title remained in the husband until his death, it also passed to them on his death, and, the legal...

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