Edwards v. El Al

• Decision Date: 31 January 1870
• Citation: 4 W.Va. 352
• Court: West Virginia Supreme Court
• Parties: William II. Edwards v. "William E. Chilton el al

4 W.Va. 352

William II. Edwards

v."William E. Chilton el al

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. An agreement is entered into between the heirs of a deceased party, to partition lands, which is accordingly done, and one of them enters into possession of his portion, but no deed of partition is made. Held:

That a continuous actual possession for a period of twenty years, will perfect his title against the other heirs.

2. Where a period of more than twenty years has elapsed since the executing of a deed of trust upon real estate, before a bill filed by a subsequent vendee deriving title from the party executing the trust, enjoining the collection of purchase money on the ground of defect in a title, it must be presumed that the debt secured by the trust deed has been paid; especially where it is not alleged in the bill that it is claimed to be unpaid, or that the creditor threatens to cause the land to be sold under the trust.

3. C. sold to E. a tract of land. C. subsequently bought an outstanding title

claimed to be older than that which he sold to E., from P. and C. On a bill of injunction filed by E., to enjoin payment of purchase money to C. on the ground of defect in title; it is, among other defects, alleged that the title is imperfect, because there was a failure to procure the relinquishment of dower of Mrs. P. and Mrs. C, wives of the vendors of the outstanding title. Held:

I. That inasmuch as it was not averred in the bill that either P. or C. had a wife who was entitled to dower in the land, the objection is unavailing.

II. That a continuous actual possession of one of the grantors of C. for more than twenty years, would bar the outstanding title, though it may have been originally the better title.

This cause arose in Kanawha county. The bill was filed in April, 1868.

William II. Edwards and F. A. Lovell and others, pur- chased of William E. Chilton a tract of land, situate in Wirt county, in 1865, for a large sum of money, and made several large payments thereon. The title deed was made solely to Lovell, and he alone gave a trust deed on the land to secure the unpaid purchase money, but Edwards and others were jointly interested with Lovell in the purchase, and Edwards was bound with Lovell on the notes for the deferred instalments of the purchase money. Chilton had the land advertised for sale, under the trust deed executed by Lovell, in May, 1866, and the sale thereof was enjoined by Lovell, on account of a deficiency in the quantity of land, and also because of defects in title discovered by Lovell. Chilton, before Lovell's bill came on to be heard in the circuit court, removed the defects of title discovered by Lovell, and also some other defects known to Chilton, but not known to Lovell, and the circuit court thereupon dissolved Lovell's injunction. From the decree dissolving the injunction Lovell appealed to this court, and the decree of the circuit court was affirmed. Chilton thereupon again had the land advertised for sale in April, 1868, and Edwards having discovered, since the decision of the suit of Lovell, other and various supposed defects in Chilton's title, not known at the time...