Martin v. Martin

• Decision Date: 15 July 1897
• Citation: 27 S.E. 810,95 Va. 26
• Parties: MARTIN et al. v. MARTIN.
• Court: Virginia Supreme Court

27 S.E. 810

95 Va. 26

MARTIN et al.

v.MARTIN.

Supreme Court of Appeals of Virginia.

July 15, 1897.

Partition—Parties—Pleading—Title—Division in Kind—Powers op Court—Practice.

1. The defect of a misspelled name of a party defendant is cured by serving process upon the proper party, and by amending the bill by inserting the correct name.

2. Persons holding land as trustees to secure a debt are not necessary parties to a suit for the partition of the land, as partition does not affect the rights of mortgagees.

3. A bill for partition, alleging that the mother of plaintiff was seised and possessed of the land in question, and that, she having died intestate, plaintiff and those named as parties defendant comprise the only children and heirs at law, sufficiently shows the rights of the parties to the land.

4. A claim for improvements on land which a co-tenant may have, not against his co-tenants, but against a former holder of the undivided land, who was the common ancestor, cannot be asserted in a suit for partition of the land among the co-tenants, especially when an opportunity is afforded to present such claims, in a suit in which an account of the debts of the former holder or her estate is being taken.

5. An exception by one co-tenant that a partition is unequal as to quantity and quality will not be sustained if the inequality is not specifically pointed out.

6. In partitioning lands which are incapable of exact or fair division a court of equity has power to charge one portion with an easement in favor of another portion, to render the partition equitable.

Appeal from circuit court, Giles county.

Bill brought by S. D. Martin against J. W. Martin, Lelia Martin, and others for the partition of land. Partition was decreed, and defendants appeal. Affirmed.

Blair & Blair, J. B. Peck, and Johnston, Taylor & Johnston, for appellants.

Henson & Mason and Williams & Fulton, for appellee.

CARDWELL, J. This is a suit for the partition of land. The bill was filed by S. D. Martin, and alleges that his mother, Mrs. Almira Martin, was in her lifetime seised and possessed of certain real estate lying in the county of Giles, state of Virginia, containing about 340 acres, adjoining the lands of L. Caldwell and others; and, being so seised and possessed, she died, leaving complainant, J. W. Martin, Ella Echols, wife of W. W. Echols, and Lelia Martin her only children and heirs at law; that her husband, complainant's father, having died some years before, she (Mrs. Almira Martin) had conveyed the land to C. W. Echols, trustee, to secure a debt due one W. W. Echols. It is further alleged that this land is susceptible of partition among the parties, and the prayer is that J. W. Martin, Ella Echols, and W. W. Echols, her husband, L. D. Martin, and C. W. Echols, trustee, be made parties defendant to the bill; that the land be divided among the parties entitled thereto, etc.

It appears that Lelia Martin was not named In the prayer of the bill, or was incorrectly named, though process issued and was served upon her as upon the other defendants except O. W. Echols., trustee. Upon the bill being taken for confessed as to all the defendants, commissioners were appointed to go upon the land, and partition the same among the heirs at law of Mrs. Almira Martin, deceased, according to quality and quantity, if a partition could be made in kind; if not, they were to so report to the court, giving the reasons therefor. The commissioners went upon the land, made partition of it, filed their report, together with a plat of the land as partitioned, and, after the same had been filed morethan 30 days, the cause came on to be heard at the October term of the court, 1894, upon the papers formerly read, the report of the commissioners who made the partition, exceptions taken by J. W. Martin thereto, and upon the demurrer and answer of J. W. Martin, then filed. The demurrer was urged upon the grounds that Lelia Martin had not been made a party defendant by complainant's bill, and C. W. Echols, trustee, had not been served with process; that the bill does not allege that the plaintiff was seised and possessed of the land asked to be partitioned, and does not allege sufficient description of the land. Whereupon the complainant was permitted to amend his bill by inserting the name of Lelia Martin therein; and thereupon Lelia Martin and 0. W. Echols, trustee, by their attorneys, entered their appearance, and consented that the case should then be heard. The court overruled the demurrer, and by reason alone of the amendments to the complainant's bill then made J. W. Martin moved for a continuance of the cause, which was refused, the report of the commissioners partitioning the land was approved and confirmed, and it is from this decree that the case is appealed to this court.

We are of opinion that the demurrer was properly overruled. Lelia Martin, although not correctly named in the prayer of the bill, was served with process to answer, and the amendment which was permitted cured any defect as to her, and C. W. Echols, trustee, was not a necessary party to the...