Flynn v. *(GtReen
| Decision Date | 15 September 1888 |
| Citation | 31 W.Va. 487 |
| Court | West Virginia Supreme Court |
| Parties | Flynn v. Lee.*(GtReen, Judge, absent.) |
An adverse possession depends upon the intention with which the possession was taken and held. Wherever the act itself imports that there is a superior title in another, by whose permission, and in subordination to whose still continuing and subsisting title, the possession is held, such possession can not be adverse to the owner of the legal title.
Statute of Limitations Notice.
Where a vendor conveys land by deed, which, though absolute on its face, is in fact a mere trust or mortgage, and he continues in possession after the conveyance, such possession will not be adverse to the title of the vendee. To make such possession adverse, and start the running of the statute of limitations, there must be a disclaimer or repudiation of the trust-relation, and notice of that fact to the vendee.
R. S. Blair for plaintiff in error. George Loomis for defendant in error. Snyder, Judge:
John Flynn, by deed dated September 24, 1858, convened with covenant of general warranty, to John and Edward Reid as tenants in common, certain land lying in Ritchie and Doddridge counties. By deed dated December 6, 1875, said John Reid ancl wife conveyed all their interest in said land to the said Edward Reid. These two deeds were duly recorded in Ritchie county in December, 1875. Subsequently, by deed dated January 11, 1876, and duly recorded in said county, July 5, 1876, the said Edward Reid and wife conveyed to E. 0. C. Lee, with general warranty, a boundary of 157 acres, part of the aforesaid land. At the time of his purchase Lee was placed in possession of the 157 acres of land, made valuable improvements thereon, and has continued in the actual and open possession thereof ever since his said purchase. John Flynn died intestate in the year 1861, leaving Ann V. Flynn and several children. In May, 1883, the said widow and children of John Flynn, deceased, commenced this action of ejectment against E. C. C. Lee, to recover from him the said 157 acres of land, claiming title thereto in fee. The defendant pleaded not guilty, and the case was twice tried by jury, and upon each trial there was a verdict for the plaintiffs. The first verdict, returned March 11, 1884, found that all the plaintiffs were entitled to the land in fee; while the second verdict, returned March 5, 1886, found that the widow, A. V. Flynn, was entitled to one-third of the land for life, and the other plaintiffs to the fee, subject to said lifeestate. These two verdicts were each, on the several motions of the defendant, set aside, and new trials ordered. The plaintiffs duly excepted to the action of the court, and on their motion the court, by bills of exceptions, certified all the evidence heard upon each separate trial. The plaintiffs obtained this writ of error, and claim that the court erred in setting aside both or either of said verdicts.
The evidence tends to prove that at the time John Flynn conveyed the land to John and Edward Reid, in the year 1858, Flynn was indebted to said Reids, and that the deed, then made, while absolute and unconditional on its face, was, according to the understanding and agreement of the parties, simply a trust-deed or mortgage. The Reids were to hold the title as a security for the indebtedness of Flynn to them; and, upon the request of Flynn and the payment of said indebtedness, the Reids were to convey the land back to Flynn or to his wife and children. These facts fully appear from the letters of the Reids written to some of the plaintiffs after the death of Flynn.
The evidence further tends to prove that, in the latter part of the year 1875, the plaintiffs wrere anxious to pay off the claim held by the Reids, and redeem the land; that, at the instance of some of the plaintiffs, the defendant, Lee, was induced to make an agreement with Edward Reid, who then held the title to the land, for the purchase of about 150 acres of the land; that after this agreement the Flynns seem to have made some objection to the survey and quantity of land sold to Lee; but Reid, claiming that he was bound by his agreement to let Lee have the 157 acres of land at the price agreed upon, which was $1,099, in consideration of said sum conveyed the...
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