Mcconaha v. Rust

• Decision Date: 02 March 2006
• Docket Number: No. 32726.,32726.
• Citation: 632 S.E.2d 52
• Court: West Virginia Supreme Court
• Parties: Christine McCONAHA, Individually and in Her Capacity as Administratrix of the Estate of James Vinton Slater and Mabel Florence Slater, Plaintiff Below, Appellant v. Ethel Isabelle RUST, Janet Evene Burdette, Marvin Darrell Slater, Jesse Edward Slater, Jesse Edward Slater, Jr., Roberta I. Kintz, Samuel Webster Harrison, Jr., and George Harrison, Defendants Below, Appellees.

632 S.E.2d 52

Christine McCONAHA, Individually and in Her Capacity as Administratrix of the Estate of James Vinton Slater and Mabel Florence Slater, Plaintiff Below, Appellant v. Ethel Isabelle RUST, Janet Evene Burdette, Marvin Darrell Slater, Jesse Edward Slater, Jesse Edward Slater, Jr., Roberta I. Kintz, Samuel Webster Harrison, Jr., and George Harrison, Defendants Below, Appellees.

No. 32726.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 2006.

Decided March 2, 2006.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 1, Public Citizen, Inc. v. First Natl. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

2. "To entitle any person to obtain a writ of error or appeal from a judgment, he must be both a party to the case and be aggrieved by the judgment." Syl. Pt. 1, Williamson v. Hays, 25 W.Va. 609 (1885).

3. "If one tenant in common use the common land, and exclude his co-tenant, he is accountable to such co-tenant, though he does not take beyond his just share of rents and profits." Syl. Pt. 4, Cecil v. Clark, 47 W.Va. 402, 35 S.E. 11 (1900).

4. "If a tenant in common use the land for purposes allowable by law to a tenant in common, but use no more than his share, and do[sic] not exclude a co-tenant, he is not accountable to him for rents and profits." Syl. Pt. 5, Cecil v. Clark, 47 W.Va. 402, 35 S.E. 11 (1900).

5. "[T]he Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review." Syl. Pt. 6, in part, Parker v. Knowlton Const. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).

6. "Where parties have made a settlement . . ., such settlement is conclusive upon the parties thereto as to the correctness thereof in the absence of accident, mistake or fraud in making the same." Syl. Pt. 1, in part, Calwell v. Caperton's Adm'rs., 27 W.Va. 397 (1886).

7. This Court when reviewing an action in partition generally will not disturb a settlement agreement reached before and/or ratified by the circuit court where the party John H. Tinney, James K. Tinney, The Tinney Law Firm, P.L.L.C., Charleston, for the Appellant.

Kevin Wayne Hughart, Sissonville, for the Appellees, Jesse Edward Slater and Jesse Edward Slater, Jr.

C. Page Hamrick, III, Charleston, for the Appellee, Samuel Webster Harrison, Jr.

ALBRIGHT, Justice:

In this proceeding, Christine McConaha (hereinafter "Appellant") appeals the November 16, 2004, final order of the Circuit Court of Kanawha County effecting the partition of three parcels of real property owned by Appellant's father at his death, subject to the dower interest of his surviving wife, Appellant's mother. The dower interest was subsequently extinguished by the wife's death and is not relevant to this appeal.

The three parcels passed by intestate succession to Appellant and her siblings, as tenants in common, leading in time to this action to partition the properties. The order appealed from reflects the lower court's decision to partition the property in kind based on the conclusions that three of the heirs had transferred their interests in the property to another heir, one of the heirs owned five-sevenths of the undivided property subject to the exclusion of two acres for another of the heirs and the agreement that the remaining two heirs receive certain portions of the property as their proper share. Appellant contends the lower court erred by: (1) finding that three heirs had transferred their shares of the property to a cotenant, (2) ruling that a specific portion of an undivided property interest could be conveyed by quitclaim deed or other agreement; and (3) failing to account for rents owed to the cotenants by fellow cotenants who were using more than their share of the common property.¹ Upon due consideration of the briefs and argument, the record below and the relevant legal principles, we affirm the lower court decision.

I. Factual and Procedural Background

James Vinton Slater died intestate on January 30, 1962, survived by his wife, Mabel Florence Slater, and seven children, namely, Christine McConaha, Ethel Isabelle Rust, Janet Evene Burdette, Marvin Darrell Slater, Jesse Edward Slater, Sr., Roberta I. Kintz and Elvin D. Slater. At the time of his death, James Vinton owned three parcels of real estate totaling approximately 55.18² acres, which through intestate succession became by equal shares the property of his seven children, subject to the dower interest of his widow. Mrs. Slater lived with her son Elvin on the land until she died on October 16, 1992. Mrs. Slater's death extinguished her interest in the land. Elvin Slater died on March 5, 1997.

On September 29, 1999, Appellant, individually and in her capacity as administratrix of the estates of both her father and mother, filed suit against the five living siblings and Samuel Webster Harrison, Jr., the adopted son and sole heir at law of Elvin Slater, seeking partition of the land by sale or in kind. The complaint further requested an accounting of the fair rental value of the real estate and the value of any property removed from the land by Jesse Edward Slater, Sr., and Samuel Webster Harrison, Jr., who resided on the land. Finally, Appellant named Jesse Edward Slater, Jr.,³ and George Harrison⁴ defendants as tenants by sufferance on the subject real estate without ownership interest in the property in an attempt to obtain an accounting of the lost rental value for their use of the property.

The court below referred the case to a special commissioner to determine the state of the legal interests in the real estate. The commissioner held a hearing and received testimony and other evidence before issuing his report dated February 13, 2004. The commissioner considered three documents referred to as "Bills of Sale" which purported to convey the interests of Marvin Slater, Ethel Rust and her spouse, and Janet Burdette and her spouse to Elvin Slater in exchange for various sums of money. The bills of sale were recorded⁵ on February 12, 2002, after the partition suit was filed. The commissioner also considered the appraisal of Elvin Slater's estate in which it was indicated that Elvin Slater owned an undivided one-seventh interest in his father's estate and listed Samuel Harrison, Jr., as his heir at law, as well as a February 21, 2002, quitclaim deed executed by Samuel Harrison conveying to the elder Jesse Slater Mr. Harrison's interest in the subject property except for two acres of land around structures on the property, which Mr. Harrison reserved for himself. The quitclaim deed was recorded on February 27, 2002. Based on the examination of these matters, the commissioner concluded that the bills of sale did not serve to transfer to Elvin Slater the interests of the three siblings in the property and that each of the siblings and Samuel Harrison, as Elvin Slater's heir at law, had a one-seventh interest in the property.⁶ The commissioner further concluded that the quitclaim deed from Samuel Harrison to Jesse Slater, Sr., was void because "[t]he holder of an undivided interest can only convey the undivided interest and cannot exempt and reserve a portion thereof."

Objections were raised to the report of the special commissioner for which the lower court convened hearings. During these proceedings, testimony was received from Appellant, Mrs. Rust, Mrs. Burdette, Marvin Slater, Jesse Slater, Sr.,⁷ and Samuel Harrison, Jr. Among the exhibits admitted into evidence at the hearings were the bills of sale, property tax receipts, the appraisement of Elvin Slater's estate, and the quitclaim deed of Samuel Harrison. Based upon this evidence and agreement of the parties, the lower court concluded: (1) the seven siblings each inherited a one-seventh interest in the subject property; (2) Mrs. Rust, Mrs. Burdette and Marvin Slater transferred their interests in the property to Elvin Slater; (3) Elvin Slater had entered into an agreement with Jesse Slater, Sr., to exchange his four-sevenths interest in the real estate for construction of a house and outbuildings on a portion of the land but excepting the structures and two acres surrounding the structures from the transfer; (4) Samuel Harrison's undivided interest in the real estate as Elvin Slater's sole heir at law was reduced by his father's agreement with his brother, Jesse Slater, Sr.; and (5) the property was conducive to partition in kind. By agreement before the court among all cotenants present at the hearing, Appellant accepted as her one-seventh share of the property a ten acre segment which she had formerly graded in preparation for construction of a house. These findings were contained in the final order entered by the lower court on November 16, 2004. It is from this final order that Appellant seeks relief from this Court.

II. Standard of Review

The order from which this appeal was taken stemmed from a hearing on the objections to the report of a special commissioner at which the lower court received testimony and allowed the introduction of other evidence. In the past we have construed such proceedings as a bench trial with the resulting order being treated on review as a judgment entered in a bench trial. Ark Land Co. v. Harper, 215 W.Va. 331, 334 n. 4, 599 S.E.2d 754, 757 n. 4. As we indicated in syllabus point one of Public Citizen, Inc. v First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996), appellate...