Ellison v. Torpin

• Decision Date: 26 March 1898
• Citation: 30 S.E. 183,44 W.Va. 414
• Court: West Virginia Supreme Court
• Parties: ELLISON. v. TORPIN et al.

30 S.E. 183

44 W.Va. 414

ELLISON.

v.TORPIN et al.

Supreme Court or Appeals of West Virginia.

March 26, 1898.

Appeal from circuit court, Logan county; Thomas H. Harvey, Judge.

Action by J. B. Ellison against Richard Torpin, Jr., and others. Judgment for plaintiff. Defendants appeal. Affirmed by divided court. ENGLISH and McWHORTER, JJ., for affirming. ENGLISH, J., prepared an opinion, in w^Thich McWHORTER, J., concurred and filed a note. BRANNON, P., being of opinion that the decree should be reversed, prepared an opinion, in which DENT, J., concurred.

E. Spencer Miller, Maurice G. Belknap, J. B. Wilkinson, and Campbell, Holt & Campbell, for appellants.

John A. Sheppard, Vinson & Thompson, H. K. Shumate, and McWhorter & Loewenstein, for appellee.

ENGLISH, J. Jacob Cline, Sr., was the owner of a tract of land situated In Logan county, Va., now in Mingo county, W. Va., which was supposed to contain 5, 000 acres, and was conveyed to him by one John Law-son. A portion of this tract was situated on Tug river, just above the mouth of Grapevine creek, and was known as the "Old Home Place." The remainder of the boundary is situated on Grapevine creek and Tug river. In March, 1858, said Jacob Cline, Sr., made and published his last will and testament, which was probated and recorded in Logan county, Va., in 1858, by the seventh clause of which he gave to his sons, Perry and Jacob Cline, a tract of land in Loffan county, on Tug river, bounded as fol lows, to wit: "Beginning at two maples

about one-quarter of a mile above the mouth of Grapevine creek; thence out to the top of the ridge, to the river at the lower end of his land on said Tug river, including all the land he held on the river, with said lines up Grapevine creek; all he held on said creek, including below said lines, —to Perry and Jacob Cline in coparcenary, to them and their heirs, forever." By the ninth clause of said will he gave to his son Perry Cline a tract of land on Tug river, in Logan county, Va., described as follows: "Beginning at two maples standing about one-quarter of a mile above the mouth of Grapevine creek; thence running up the river, including all the land he held on the river up to Jackson Mounts' line, to him and his heirs, forever." In 1870 or 1871, Perry Cline traded all the lands devised to him by his father to one Anderson Hatfield for lands on the other side of Tug river, in Pike county, Ky., and said Hatfield, who had been cutting timber as a trespasser, and building cabins on said Grapevine creek, claiming some sort of title under a survey made by his father, left Grapevine creek, and moved to the old home place, where he lived until 1888, when he and his sons sold all the lands they had to the appellants, and moved away. In order to carry into effect this exchange of lands, said Cline and wife, on March 23, 1877, executed to said Anderson Hatfield a deed by which they conveyed all the lands willed to Perry Cline by his father, located on Tug river, in Logan county, including the home place and Perry Cline's interest in the Grapevine lands. In 1879, Jacob Cline, Jr., died intestate, leaving two sons, to wit, P. A. Cline, Jr., and Wayne Cline, who were then infants. On January 30, 1888, Anderson Hatfield and his two sons and their wives conveyed to J. D. Sergeant, who conveyed afterwards to the appellants, trustees, etc., five small boundaries of land, aggregating 1, 500 acres, the description of which tracts of land in said deed concludes as follows: "All of the real estate herein conveyed being part of a 5, 000-acre survey conveyed from P. A. Cline to said Hatfield, Sr., by deed bearing date on the 23d day of March, 1877." And when we refer to a copy of said last-named deed, which Is made part of the record, it is perceived at once that by that deed P. A. Cline only conveyed to Anderson Hatfield, Sr., the lands which were willed to him by his father, Jacob Cline, Sr., which a reference to a copy of said will In the record shows includes a moiety of the lands on Grapevine creek belonging to said Jacob Cline, Sr., in his lifetime, showing a clear and manifest Intention to embrace no more than the home place, and P. A. Cline's undivided moiety of the Grapevine lands, in the deed of conveyance to said Sergeant.

With the records of Logan county in this condition, and the land books showing that the land in controversy had been charged, in the name of Jacob Cline's heirs, with taxes as 5, 000 acres, until 1884, when 2, 900 acres, part thereof, composed of the home place and P. A. Cline's half of the Grapevine lands, were charged to Anderson Hatfield under his deed from P. A. Cline of March, 1877, placed on record in 1882, the plaintiff, J. B. Ellison, went to Anderson Hatfield, Sr., in order that there might be no mistake, and asked him if he had ever bought Jacob Cline's interest in the Grapevine lands, and was informed that he had not. Having thus been satisfied that the undivided moiety of the Grapevine lands yet belonged to the heirs at law of Jacob Cline, Jr. (who died in 1879 intestate, leaving two sons, P. A. Cline, Jr., and Wayne Cline), the appellee, J. B. Ellison, met the said P. A. Cline, Jr., and Wayne Cline, at their home in Kentucky, on December 6, 1893, and purchased from them the undivided moiety of said Grapevine lands devised by Jacob, Sr., to their father, and paid them $100 each for their respective interests, taking from them deeds with covenants of special warranty, which were joined in by their mother, and duly recorded. With the title of these heirs on record, said Ellison, on February 27, 1894, instituted this suit in the circuit court of Logan county against said trustees and others, claiming to be the owner of the Jacob Cline moiety of the Grapevine lands, and praying that the lands embraced in the seventh clause of the will of Jacob, Sr., might be partitioned, and one-half thereof assigned to him, and the other half to the defendants entitled thereto.

On the 19th of June, 1894, said trustees filed their joint and separate answer, admitting that Jacob Cline, Jr., was in his lifetime the owner of a moiety of Grapevine lands under his father's will, but denying the legitimacy of said P. A. Cline, Jr., and Wayne Cline, who conveyed their interests to said Ellison, and attempting to allege a sale by Jacob Cline, Jr., of his moiety of said lands in his lifetime; which allegation was stricken out of the answer by the court for indefi-niteness, as it failed to allege the terms of sale, the name of the purchaser, or whether the same was oral or in writing. The plaintiff replied generally to the modified answer, and depositions were taken establishing the fact that P. A. Cline, Jr., and Wayne Cline, the grantors of Ellison, were the lawful heirs of Jacob Cline, Jr., and on January 4, 1895, the trustees tendered and filed an amended answer, denying the plaintiff's (Ellison's) title to the Jacob Cline moiety of the Grapevine lands; and alleging, as new matter, a parol sale by Jacob and P. A. Cline of said lands in 1869, subsequently reduced to writing, exhibiting the title bond dated August 24, 1869, as such writing, the delivery of possession, and the payment of the purchase money; and, by way of affirmative relief, prayed that the plaintiff, Ellison, be held as trustee holding the legal title for them, and that he be compelled by the court to convey the same to them. The plaintiff filed a special replication to this answer, denying the parol sale and title bond alleged in said amended answer, and alleged that the title bond, if genuine, was never recorded, and claiming that he was a purchaser for value, without notice of said title bond, and that the same was void as to him, under section 5 of chapter 74 of the Code. Depositions were taken by both the plaintiff and defendants, and on August 3, 1895, a decree was rendered denying the prayer of the defendant trustees for affirmative relief, holding that the plaintiff, Ellison, was the owner in fee of the Jacob Cline moiety of the lands devised by the seventh clause of Jacob Cline, Sr.'s, will, and directing a partition of the same between the plaintiff and the defendants; and from this decree the trustees applied for and obtained this appeal.

The appellants in their petition for appeal claim that the circuit court erred in refusing to remove this cause to the circuit court of the United States for West Virginia on their application, they being citizens and residents of the state of Pennsylvania, and the plaintiff a citizen and resident of the state of West Virginia, and the controversy, as between them, related wholly to that part of the land claimed by appellants, and in which controversy the co-defendants had no interest; hence the controversy was separable, and should have been removed. This assignment, however, is not insisted upon by the appellants in their briefs, and no reason is assigned by them for sustaining the same, and, as we see no error in the action of the court in this respect, this assignment must be considered as waived and abandoned.

The second assignment of error relied on by the appellants is that the court erred in its decree of August 3, 1895, in adjudicating that the plaintiff is the owner in fee of an undivided moiety of the land mentioned in the bill, and in decreeing a partition accordingly, and in refusing to compel the plaintiff to convey to appellants an undivided moiety of that part of said land claimed by them, in specific performance of the title bond set up in their answer. The controversy in this case is in regard to the ownership of the tract of land devised by the seventh clause of the will of Jacob Cline, Sr., to his sons, Perry and Jacob, known as the "Grapevine Tract." This land is claimed by the appellants by virtue of a deed executed by P. A. Cline and wife to Anderson Hatfield, dated March 23, 1877, which deed described the property conveyed as "all the land that was willed to P. A. Cline by Jacob Cline, Sr., his father, said...