Mcdonald v. Rothgeb

• Decision Date: 16 November 1911
• Citation: 112 Va. 749,72 S.E. 692
• Parties: McDONALD et al. v. ROTHGEB et al.
• Court: Virginia Supreme Court

72 S.E. 692

112 Va. 749

McDONALD et al.

v.ROTHGEB et al.

Supreme Court of Appeals of Virginia.

Nov.16, 1911.

1. Estoppel (§ 38^*)—By Deed —Covenants— Conveyance of Wife's Separate Property—Liability of Husband.

A husband, who unites with his wife in executing a deed of her life estate, covenanting that he and wife have good right to sell the property, and that they will warrant generally the title thereto, is not estopped from claiming his share in remainder as heir of his daughter, who dies unmarried and without issue; his liability on the covenant, if any, being personal, and not operating to enlarge the estate granted.

[Ed. Note.—For other cases, see Estoppel, Dec. Dig. § 38.*]

2. Improvements (§ 4*) — Compensation — Good Faith of Claimant.

Under Code, § 2763, authorizing the recovery of improvements on land made by a claimant having reason to believe that his title is good, a purchaser may not close his eyes to his record title, and recover for improvements on the theory that there was reason to believe that his title is good; but his belief must be founded in ignorance of facts which cannot be predicated of a purchaser affected with constructive notice.

[Ed. Note.—For other cases, see Improvements, Cent. Dig. §§ 4-26; Dec. Dig. § 4.*]

Error to Circuit Court, Page County.

Ejectment by Ethel McDonald and others against U. G. Rothgeb and others. There was a judgment granting insufficient relief, and plaintiffs bring error. Reversed and rendered.

H. W. Bertram, C. A. Hammer, O. B. Roller, and Ed. C. Martz, for plaintiffs in error.

R. F.Parks and Walton & Walton, for defendants in error.

WHITTLE, J. The defendants in error acquired title, by remote purchase, to the life estate of Jennie Powell in certain lots located in the town of Shenandoah, in Page county, Va., and after her death the plaintiffs in error, holders of the fee-simple title to the iots in remainder, instituted an action of ejectment for their recovery.

A jury having been waived, and all matters of law and fact submitted to the court, judgment was rendered in favor of the plaintiffs, other than Robert Powell, for an undivided two-thirds interest in the lots. But the court found for the defendants as to the one-third undivided interest to which Powell asserted title. The court, moreover, allowed the defendants for the value of improvements made by them upon the lots in excess of the dama ges awarded the plaintiffs.

The grounds of error assigned involve the ruling of the court in giving judgment for the defendants for the one-third undivided share of Robert Powell, and also to the allowance for improvements.

Robert Powell was the husband of Jennie Powell, and united with his wife in a deed conveying her estate in the lots to Frittz. Rachael Powell died subsequent to the execution of this deed, unmarried and without issue, and her father, Robert Powell, who was her sole heir at law, inherited her vested remainder, an undivided one-third interest in the property, after the expiration of the life estate of her mother, Jennie Powell. The deed to Frittz contained the following covenant: "And the said Robert Powell and Jennie, his wife, covenant that they have good right to sell and convey said property aforesaid, and that they will warrant generally the title to the same."

The trial court was of opinion that the covenant on the part of Robert Powell ran with the land, and estopped him from asserting his after-acquired title as heir to Rachael. The husband was a stranger to his wife's title to the property, and had no interest in her life estate therein. The recitals of the deed show this, and that it was conveyed by Coverstone to the wife alone. The life estate in the wife, therefore, was all that she had power to convey; and if, in the circumstances detailed, there was any li-

^*For other cases see same topic and section NUMBER in Dec. Dig. & A.m. Dig. Key No. Series & Rep'r Indexesability on the husband upon his warranty, it was a personal liability merely to the grantee in the deed, incident to and coextensive with the life estate of the wife. Certainly such warranty could not operate to enlarge...