Lambert v. Peters
| Decision Date | 06 December 1938 |
| Docket Number | 8778. |
| Citation | 200 S.E. 33,120 W.Va. 741 |
| Parties | LAMBERT v. PETERS et al. |
| Court | West Virginia Supreme Court |
Submitted October 25, 1938.
Syllabus by the Court.
1. In a suit to partition land, all known claimants to any part thereof, or interest therein, or at the time suit is instituted, whose interests are made to appear at any stage of the cause, are necessary parties.
2. A person claiming some particular part of, or an interest in land sought to be partitioned, under a conveyance from the predecessor in title of the party seeking partition, is entitled to have his claim passed upon in the partition suit; and a decree which, without good cause appearing upon the record, rejects such claim, or ignores the same, is erroneous.
3. Whether or not land sought to be partitioned is susceptible of partition in kind can only be determined after all persons claiming a particular part thereof, or some interest therein are before the court as parties to the suit, and their claims determined.
Appeal from Circuit Court, Lincoln County.
Suit in equity by Jerome Lambert against Dollie Peters and others to partition a tract of land. From a decree in favor of the plaintiff, the defendants appeal.
Decree reversed and cause remanded.
Daugherty & Daugherty, of Huntington, for appellants.
D. E Wilkinson, of Hamlin, for appellee.
Jerome Lambert instituted his suit in equity against Dollie Peters and others, in the circuit court of Lincoln County, to partition a tract of 150 acres of land. The land in question was held not to be susceptible of partition in kind, and was sold to the plaintiff. From a decree confirming said sale and distributing the proceeds thereof, and ignoring certain claims to portions of said land, and failing to partition the same in kind, Dollie Peters and others appeal.
B. D. Toney and Catherine Toney, his wife, were the joint owners of a tract of 150 acres of land situated in Lincoln County. Catherine Toney died intestate, leaving surviving her three children, P. M. Toney, J. M. Toney and Dollie Toney, who is made a party to this suit as Dollie Peters, and Ora Toney, widow, Hazel Toney Sanders, W. B. Toney, Buster Toney, Jim Toney, Beatrice Toney and Grady Toney, children of K. E. Toney, a son of the said Catherine Toney, who had preceded her in death. After the death of Catherine Toney, P. M. Toney and J. M. Toney conveyed their interests in the said tract of land to their father, B. D. Toney, making him the owner of his own half of said land and one-half of the Catherine Toney interest, or three-fourths of the entire tract, independently of any dower interest. After the death of B. D. Toney, a suit to settle his estate was instituted in the circuit court of Lincoln County, and the interest of the said B. D. Toney in the said 150 acres was sold to Jerome Lambert, the plaintiff herein, and the same conveyed to him by D. E. Wilkinson, special commissioner, on October 4, 1935; it is under this deed that the plaintiff in his bill claimed title to an undivided seven-eighths interest in the said 150 acres, not then recognizing the interest of the heirs of K. E. Toney therein.
It appears that while B. D. Toney was the owner of said land, or at least three- fourths interest therein, he conveyed 15 acres thereof to Jake B. Toney, who is the same person as W. B. Toney, a defendant in this cause, by deed dated October 7, 1930, which 15 acres were later conveyed to Lottie Toney, the wife of the said Jake B. Toney; on the same day, the said B. D. Toney purportedly conveyed 25 acres of surface to Lottie Toney by deed which is recorded in Logan County, but this deed is alleged to be a forgery, and, so far as we can see from the record, no party in interest makes any claim thereunder. On July 8, 1931, B. D. Toney conveyed 25 acres of the said 150 acres to Hazel Toney, who is made a party to this suit as Hazel Toney Sanders, and who afterwards conveyed the same to Dollie Peters, one of the defendants herein. In the separate answer to the bill filed by Dollie Peters August 4, 1936, and the joint answer of the K. E. Toney heirs, filed August 12, 1937, it is alleged that Lottie Toney, to...
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