Hudson et al. v. Putney et al.

• Decision Date: 21 December 1878
• Citation: 14 W.Va. 561
• Court: West Virginia Supreme Court
• Parties: Hudson et al. v. Putney et al.

14 W.Va. 561

Hudson et al.

v.Putney et al.

Supreme Court of Appeals of West Virginia.

Decided December 21, 1878.

Prior to the Code of 1850 a court of equity in a suit for partition Si of land could decide on the rights of parties to participate in ~ the division, but not on the simple question of title to the land; and if the plaintiff's title was denied, and it depended on doubtful facts, or questions of law, the court should have either dismissed the bill, or retained the cause till the plain-I, tiff's rights were decided at law.

2. But since the passage of the Code of 1850 (see ch. 124 §1, p. 526, ch. 79, §1, p. 487 Code of W. Va.) when the title of the plaintiff is doubtful, the court of equity should decide the question, observing the general rules of practice in courts of equity for the purpose of ascertaining facts either by x jury, or otherwise as may be most proper.

3. The claim of the defendants in their answer, that they hold possession of the land sought to be partitioned adversely, will not oust the jurisdiction of the court, where they hold no adverse title, and their possession appears to be in point of fact not adverse to the plaintiffs but under the same title.

4. 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 entry is made, such entry can not be adverse to the owner of the legal title; and such possession so commencing can not be converted into adverse possession, but by disclaimer, the assertion of adverse title and notice.

5. A vendee, who enters under;an executory contract which leaves the legal title where it was and contemplates a future supreme couet of aPPeals

conveyance, enters in subordination to it, holds under and relies upon it to protect his possession in the meantime. And in such case a privity exists, which precludes the idea of a hostile tortious possession, which could silently ripen into a title by adverse possession under the statute of limitations.

Appeal from and supersedeas to a decree of the circuit court of Kanawha county, rendered on the 12th day of October, 1874, in a cause in said court then pending, in which John Hudson and others were plaintiffs, and James Putney and others were defendants, allowed on the petition of said plaintiffs.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decree complained of.

Green, President, furnishes the following statement of the case:

In July, 1868, John Hudson, Joseph Hudson, Enoch Hudson and Matthew Hudson, the appellants, brought a suit in chancery in the circuit court of Kanawha county against James Putney, the heirs of David Ruffner, who were Lewis Putney, Richard E. Putney, said James Putney, Ann Doyle, Fannie Doyle, Ellis Thayer, Ernest Thayer, Annie Thayer, Henry Norton, Lewis Ruffner, David L. Ruffner, Wm. H. Ruffner and Arthur Howell and Ann, his wife, Eliza Patton administratrix de bonis non of John Alderson, and his heirs, who were Z. A. Woodson and Sarah his wife, Thomas G. Aiderson and Margaret his wife, Hester Alderson, the infant children of Rufus D. Alderson, to-wit, B. Ammer Aiderson and Rufus D. Alderson, Matilda Alderson, the infant children J. M. Alderson, deceased, to-wit, M. Jordon Alderson, Charlie R. Alderson and Betty M. C. Alderson, B. A. Alderson, R. D. Alderson, M. J. Alderson, C. R. Alderson, B. M. C. Alderson and Hester Aiderson, as guardian of the infant children of Rufus D. Alderson, deceased, and Matilda Alderson, as guardian of the infant children of J.M. Alderson, deceased.

The bill states, that on June 29th, 1868, the complain- ants purchased of a portion of the heirs at law of J. g Alderson, to-wit, all but the five last nan ted and from the; then administrator of J. Alderson, said Z. A. Woodson, for $1,000.00, of which $600.00 was paid in cash, all their right in a certain contract made by John Alderson with James Putney, 'whereby in consideration of $350.00, of which $100.00 was paid in cash and the balance to be paid in six and eighteen months, John Alderson on April 10, 1851, agreed to make said Putney a deed with general warranty for seventy acres of land, reserving to John Alderson one-half of the coal on said land with all the rights necessary to enjoy same; the deed to be made when all the purchase money was paid. This land so contracted to be sold being a tract of land patented to George Alderson, deceased, lying on Spring Fork of Campbell's run, in Kanawha county, W. Va., and which tract, after deducting the interlaps of older patents, contained about seventy acres; and they file with their bill this contract between J. Alderson and James Putney; the assignment of it to the complainants by the administrator and a portion of the heirs of J. Alderson, and a plat of the land patented to George Alderson. And the bill further states, that the plaintiffs understood that the heirs of David Ruffner in some way claim the interest of James Putney in this seventy acres of land, and are thus co-tenants with the complainants in the coal on said land; that they had removed a large quantity of coal from the land, for which they pray an account, and that the proper division of the coal interest in this land may be made among the co-tenants thereof, and that their vendor's lien on this land may be enforced against James Putney and those claiming under him.

The survey on which the patent to George Alderson was based, was made February 16, 1800, and it contained two hundred and fifty-six acres; but the whole of this survey was taken up before except seventy and threefourths acres by older surveys and patents which covered the residue of this two hundred and fifty-six acres; one was a survey of John Dickinson of five hunclred and two acres made November 12, 1784, and the other was for nine hundred acres surveyed for James Reed, August 21, 1786, and patented to Reed & Brown. George Alderson having obtained this patent, which gave him a good title to this seventy and three-fourths acres of land, died shortly thereafter, in the year 1805; and by his will he gave all his lands to his wife for life, and disposed of the remainder in a number of tracts, but made no disposition of this tract on Spring Fork of Campbell's creek.

It appears from this will, that when it was wrritten, in May, 1801, the testator had six children then living: John, Catherine, Levi, George, Joseph, and James Osborne. If he had no others, and these or their issue survived him, then the interest of John Alderson, as one of the heirs of George Alderson, in this tract of seventy and three-fourths acres was one undivided sixth part thereof, after the death of his mother. It does not appear when she died, or that she ever had possession of any part of this land. Between the years 1822 and 1849, but at what times do not clearly appear, portions of this seventy and three-fourths acres of land were in the possession of different parties, some of these claiming to be tenants of John Alderson or of Alderson & Ruffner, and some of them as tenants of D. Ruffner.

James Putney in his answer states, that the defendants, the heirs of David Ruffner, of whom he was one, are claiming this land under a title bond executed October 12, 1808, by John Alderson to John Gallahan, which title bond was assigned to Robert Johnson in November, 1809, and that in October, 1810, it was assigned by Ben. Johnson, the heir of Robert Johnson, to Joseph Caldwell, and in April, 1822, this bond was assigned by Joseph Caldwell to David Ruffner. This bond with its various endorsements is filed as an exhibit with this answer, and is as follows:

"Article of agreement entered into between John Alderson, of Monroe county, and John Gallahan, of Kanawha county:

Whereas, this day John Alderson hath sold to John Gallahan three and one-half undivided parts of lands lying on a branch of Campbell's creek, known by the name of Spring Fork, adjoining a survey of Andrew Donnally, and purchased of Abraham Ruffner; for the performance thereof said Alderson binds himself, his heirs, executors, &c, in the penal sum of $900.00 to be paid to John Gallahan, his heirs, executors, &c. Be it further understood that Alderson is to make to said Gallahan, his heirs, &c, a good and sufficient title and fee simple to said lots of land, so soon as the youngest child comes of age, and give him, said Gallahan, peaceable and unmolested possession, on demand for in consideration the said Gallahan paid to said Alderson a horse beast for the above said land. Said Alderson further binds himself to procure a complete relinquishment of the widow's dower to the above said land to said Gallahan.

"In witness whereof we set our hands and affix our seals this day above written.

"John Alderson, [Seal.]

"Teste: Joseph Ruffner, Samuel Burk.

"October 12, 1808, "

The endorsements on this bond are: "November, 1809. I have paid John Gallahan $100.00, being Robert Johnson's money, for the within bond, for the benefit of said Robert Johnson; and said Gallahan agreed that said Johnson shall have the benefit of this bond. But the said Gallahan is not to be liable for any failure on the part of said John Alderson, as said Gallahan has paid said Alderson the said horse beast for this bond or article of agreement.

"Jacob Martin, Sr.

"Teste: Jacob Martin, Jr., Joel Martin."

"I assign the within bond to Joseph Caldwell, without any responsibility on myself as to the title.

October 1, 1810. Ben. Johnson."

"J assign all my right to the within bond or agreemeut to David Ruffner.

"Jos. Caldwell.

"April 20, 1822."

This bond with its endorsements after the formation of this State, was spread on the record books at the instance of James Putney.

D. L. Ruffner, another heir of David Ruffner and a defendant in this cause, proves that he got this titlebond of Lewis Ruffner, who was one of the heirs and the...