McNeeley v. South Penn Oil Co.
| Decision Date | 28 March 1903 |
| Citation | 46 S.E. 499,52 W.Va. 616 |
| Parties | McNEELEY et al. v. SOUTH PENN OIL CO. et al. |
| Court | West Virginia Supreme Court |
On petition for rehearing. Denied.
For former opinion, see 44 S.E. 508.
NOTE BY BRANNON, J.
Upon a petition for rehearing, the court carefully examined the case, and saw no ground for rehearing. It occurs to me to add this note, to present a further view for the position taken in the above opinion that never for a moment was there any adverse possession until after the death of Nathan Higgins. I have stated above that it is impossible to say that, as the possession under the executory contract was not hostile to Nathan Higgins, it was nevertheless hostile to his wife; and I say again that there could not be a possession adverse to half the tract, half the acre, half the pebble, half the molecule. But reflect further that nobody will say that as to Nathan Higgins the possession as to the whole tract was adverse. Every one must admit that it was friendly. This being so, we then bring in the fact that between Higgins and his wife there was a relation of privity and unity--that of joint tenancy--and the same character the possession bore to Nathan Higgins it bore to his wife. The possession being by executory contract while the wife lived, and not being adverse to him, neither was it adverse to her. He was her tenant, as well as his tenant. Dry law views them as such. A court of law views them as such, and adverse possession is governed by this view. Had Higgins made a deed instead of a contract, the possession would have been adverse to him; and, being adverse to him, so it would have been as to her.
But even if the possession had been adverse to Mrs. Higgins while she lived, at her last breath the law cut off that adverse possession because of her husband's curtesy. Her heirs were instantly barred from suit by an act of God, for which they are not responsible, and they should not suffer therefrom. Upon her death the law gave their father curtesy and that prevented their suit, and they had to obey the law. So far as disability of infancy is concerned, the statute did not stop. As to it they could sue, but then that curtesy stood in their way, and it prevented them from suing until the last breath of their father. That was not a disability and is not tested by the law of disability. How can it be said, with reason or justice, that, when only two years of adverse possession...
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