Dooley v. Baynes

• Decision Date: 13 March 1890
• Parties: Dooley v. Baynes et al.
• Court: Virginia Supreme Court

10 S.E. 974

(86 Va. 644)

Dooley

v.Baynes et al.

Supreme Court of Appeals of Virginia.

March 13, 1890.

Ejectment—Wife's Separate Estate.

1. In ejectment by the heirs of a wife against the grantees of the husband, on the ground that the land came to the wife through her father, and therefore descended to her heirs, declarations of the husband that such was the fact, and that he had only a life-estate in the land, are admissible, and such declarations are not objectionable, as tending to vary the terms of a deed from the wife's brothers to the husband and wife, where the deed, though reciting a consideration, was not executed by the wives of the brothers, and was claimed to be a deed of partition.

2. Testimony of three witnesses that the husband admitted that the land belonged to the wife's estate, together with the fact that in a suit for divorce the pleadings on both sides stated the same fact, is sufficient proof that the land belonged to the wife's estate.

3. The husband and wife separated under an agreement setting apart to the wife one-third of the land, free from all claims of the husband, but making no stipulation as to the residue, on which the husband continued to live. Held, that he was tenant by the curtesy, and did not hold adversely to the wife, or to her heirs after her death. Facntle-bot and Hinton, JJ., dissent.

H. E. Barksdale, for plaintiff in error

Staples & Munford, for defendants in error

Lewis, P. This was an action of ejectment in the circuit court of Pittsylvania county, brought by the heirs at law of Polly Arnett, deceased, to recover a tract of 151 acres of land situate in that county. At the trial neither party requiring a jury, the case was submitted to the court, and judgment rendered for the plaintiffs; and, on a writ of error to this judgment, the case is now before us.

It appears from the record that Polly Arnett was a daughter and heir at law of James Woody, Sr., who it seems died intestate about the year 1818, seised and possessed of considerable real and personal estate, and leaving five children, his heirs at law. There was never any suit brought for the partition of the land between the heirs, but partition thereof seems to have been made in pais. A number of deeds which, it was claimed, were partition deeds by and among the heirs, were offered in evidence by the plaintiffs, and among these deeds was one purporting to be "between Thomas Woody, James Woody and his wife, of the one part, an Joseph Arnett and Polly, his wife, all of the county of Pittsylvania, of the other part. " The deed recites that it was made for and in consideration of $560, to the parties of the first part in hand paid by the said Joseph and Polly Arnett, and embraces 216 acres of land. The deed, however, was not signed or acknowledged by the wife of James Woody, nor is her name even mentioned in the deed, but was signed and acknowledge by Thomas and James Woody only. The deed bears date February 8, 1822, and was duly recorded. Joseph and Polly Arnett lived together on the land until some time in the year 1840, when a suit for a divorce was brought by the latter against the former, which seems to have been compromised by the parties entering into an agreement for a separation, whereby Joseph Arnett agreed, among other things, to lay off and assign to the plaintiff one-third of the land, according to quality and quantity, "to hold as her own." Under this agreement, 61 acres of the land were assigned for the benefit of Mrs. Arnett, possession of the residue, to-wit, 151 acres, (which is the land in controversy,) being retained by Joseph Arnett, who continued in possession thereof until the 17th of January, 1881, when, for valuable consideration, he conveyed it to the defendant in this action, Henry C. Dooley. At the time of this conveyance to Dooley, Polly Arnett was dead. Joseph Arnett died in 18S3, and the action to recover the land was commenced in 1885.

The principal question in the case, and to which the argument at the bar was chiefly addressed, is whether the land was the maiden land of Mrs. Arnett, decived by descent from her deceased father, or wheth-er it was land belonging to her brothers Thomas and James Woody, and by them conveyed in fee-simple to her and her husband jointly, by the above-mentioned deed of February 8, 1822. If the latter view be the correct one, then the deed vested in the husband and wife, as the law in Virginia was, prior to the revisal of 1849, an estate by entireties, with the right of survivorship in fee to the longest liver. Thornton v. Thornton, 3 Rand. (Va.) 179; Norman v. Cunningham, 5 Grat. 63; 2 Minor, Inst. 411.

But we are of opinion that this is not the correct view, and that the plaintiffs, as the heirs at law of Polly Arnett, are entitled to recover, as the circuit court held. That the land was inherited by Mrs. Arnett from her father is, we think, very clearly established by the evidence. In the bill for divorce filed by her in 1840, it was charged that the 216 acres of land came to her " by the bounty of her father, " and in his answer the defendant Joseph Arnett admitted that he came into possession of the land "as part of the estate of the plaintiff." So, also, in the agreeement for a separation, the land is described as the land mentioned in the bill. But this is not the only evidence on the subject. Three witnesses, who were introduced by the plaintiffs, testify to certain declarations and admissions by Joseph Arnett before his conveyance to the defendant, and while he was in possession of the land in controversy, which are decisive of the case. The first of these witnesses, Jackson Waters, testified that on one occasion he proposed to Joseph Arnett to buy timber growing on the land; but he refused to sell, saying that the land came to him by his wife, and that he had only a life-estate in it. Another witness, Mrs. Lucy Bayes, one of the plaintiffs, and a daughter of Joseph and Polly Arnett, testified that she had frequently heard her father declare that the land was his wife's, and that it came from her father; that the heirs of James Woody, the elder, divided his lands among themselves; and that he (Joseph Arnett) paid nothing for the land. The third witness testified to the same effect, saying, further, that on one occasion he offered to buy a part of the land in controversy from Joseph Arnett, when the latter told him his wife had gotten the land from her father's estate, and that he had only a life-estate in it. The same witness also says he heard Arnett make similar admissions respecting his title, repeatedly.

That these declarations are admissible in evidence is denied by the appellant, but their admissibility would seem to be too plain to admit of doubt. "In regard to the declarations of persons in possession of land, explanatory of the character of their possession, " says Greenleaf, "there has been some difference of opinion, but it is now well settled that declarations in...