McNeeley v. South Penn Oil Co.
| Decision Date | 28 March 1903 |
| Citation | 44 S.E. 508,52 W.Va. 616 |
| Parties | McNEELEY et al. v. SOUTH PENN OIL CO. et al. |
| Court | West Virginia Supreme Court |
Submitted September 6, 1902.
Syllabus by the Court.
1. Husband and wife being seised as joint tenants of land, her interest being separate estate, the husband alone, during coverture, sells the whole tract by executory contract, and the purchaser goes into possession during the coverture, and later the wife dies, leaving the husband and children surviving her, and later the husband conveys the whole tract to the purchaser by deed. The possession of the purchaser is not adverse to the wife in her lifetime, and right of entry or action does not accrue to her children until the husband's death, and the statute of limitations begins to run against them first at his death.
2. Survivorship in estate by entirety was abolished 1st July 1850, by section 18, c. 116, of the Virginia Code of 1849 continued in the West Virginia Code of 1868, c. 71, § 18.
3. Curtesy in a wife's separate estate vests in her husband first upon her death.
4. Quaere: Where man and wife are jointly seised of land, her interest being separate, and adverse possession under a distinct hostile title begins during the coverture, but before the period fixed as a bar by the statute of limitations has run out, the wife dies, leaving children and husband surviving her: Does the statute stop running as to the heirs until the close of the curtesy by the death of the husband? Does his failure to sue affect them? Is there a second or separate right of entry or action accruing to the heirs at the husband's death? How when the husband during coverture has conveyed to the occupant by deed purporting to pass in fee the whole tract? Does the statute run against the heirs before the husband's death?
5. The conveyance of land to husband and wife since 1st April, 1869 does not create an estate by entirety, but a joint tenancy, and the wife's interest is separate estate.
The joint effect of section 18, c. 71, abolishing survivorship in estate by entirety, and of chapter 66, relating to separate estates of married women, of the Code of 1868, is to abolish estate by entirety. The husband is not entitled to sole possession during coverture, but has curtesy in his wife's half after her death.
6. Possession by a purchaser under an executory contract of sale, made by the husband alone, of land owned in joint tenancy by husband and wife, is not adverse to the wife.
7. When a husband, by executory contract during coverture, sells land owned by him and his wife as joint tenants, and the purchaser takes possession, and then the wife dies, and then the husband conveys to the purchaser the whole tract by deed, the possession is not adverse to the heirs of the wife until the husband's death, as until then they have no right of entry or action, and the statute of limitations does not run against them until then.
8. An executory contract for the sale of land, stipulating for the future conveyance of legal title, the purchase money payable in future, is color of title under the statute of limitations as to hostile claimants.
9. There can be no constructive actual adverse possession of land by reason of possession of part of the occupant's land, where there has been no actual possession of some part of the land of another person, which he might treat as a trespass and sue for.
10. Where an occupant's boundary covers adjoining lands of separate owners, his possession on land of one of them will not be adverse possession of land of the other, without actual possession of such other's land, on the theory that possession of part is possession of the whole.
11. Chapter 61, p. 152, Acts 1872-73, fixing three years' limitation for suits to recover land leased for oil or other minerals, was repealed by chapter 102, p. 298, Acts 1882, re-enacting chapter 104 of the Code of 1868.
12. The said chapter 61, p. 152, Acts 1872-73, is unconstitutional and void because of failure in its title to express the object of the act.
13. A married woman will not, by reason of estoppel in pais, lose her right to land owned jointly by her and her husband simply by knowledge that her husband is negotiating an exchange of the whole land in his name, or has exchanged it as his sole land, or by expressing, casually, satisfaction with the exchange after it has been made. Silence does not bar her right. Nor will her heirs be so barred by mere silence, though they know of improvements put upon the land by or under the other party to the exchange.
Appeal from Circuit Court, Wetzel County; M. H. Willis, Judge.
Bill by C. B. McNeeley and others against the South Penn Oil Company and others. Decree for defendants, and plaintiffs appeal. Reversed.
Thomas P. Jacobs, Edward A. Brannon, and Thomas R. Hornor, for appellants.
Erskine & Allison, Fleming & Fleming, W. S. Haymond, U. N. Arnett, Jr., and Arnold, Morton & Irvine, for appellees.
BRANNON, J. (after stating the facts).
A vital question in this case arises on the statute of limitations. Is the right of the plaintiffs to that half of the tract of 100 acres vested in Mary Higgins lost to them by reason of the statute of limitations? The defendant oil companies say that when Starkey, under the executory contract of exchange between him and Nathan Higgins, took actual possession of the 100 acres, in October, 1873, the statute at once began to run, and had run the limitation period of 10 years long before the commencement of this suit. That depends upon the question whether that possession was adversary to Mary Higgins. Counsel for plaintiffs say that it was not adversary, for the reason, first, that the conveyance to Nathan and Mary Higgins created, not a joint tenancy, but an estate by entirety, and that he could not sell either his own or his wife's estate in the land, and his contract of sale would constitute no color of title, but was nugatory for all purposes, and, besides, that Nathan had the right to the control, possession, and rents and profits of his wife's share--in short, a life estate therein, just as by common law a husband had a life estate in the sole land of a wife--and under settled principles the statute would not begin against her or her heirs until the death of the husband. The defense says that the conveyance of the land did not create an estate by entirety, but simply a joint tenancy, by the law ruling at the date of such conveyance. By common law, land conveyed simply to a husband and wife did not, as in the case of a conveyance to two persons not husband and wife, create a joint tenancy, but an estate by entirety. This statement of the nature of this ancient estate in land, dating far back in time, in Thornton v. Thornton, 3 Rand. 179, is supported by all the authorities. No partition, voluntary or involuntary, can be made between husband and wife of such an estate. 11 Am. & Eng. Ency. Law, 49; 2 Minor, 471. One dying, the survivor gets the whole. In such land the husband had at least an estate for his life, and if he outlived his wife he simply retained the whole. His conveyance of the whole would operate to confer on his grantee an estate during his life, and, if he survived, it would pass the fee to the whole. 1 Washb. R. Prop. § 913; Bl. Comm. bk. 2, p. 182; Gray v. Bailey (N. C.) 23 S.E. 318.
If Nathan and Mary Higgins did take an estate in entirety, and she had outlived him, on common-law principles the statute would not count against her in favor of Starkey until his death, because until then Nathan's marital right of possession would not expire. Until then she could not recover of Starkey either her own or his interest, but, as she died first, there could not be, by common law, any question of the statute, as his contract with Starkey would upon her death confer right of possession upon Starkey. But this could not be the case, because at the date of the contract the statute found in Code 1868, c. 71, § 18, was in force, providing that "if hereafter an estate of inheritance be conveyed or devised to a husband and his wife, one moiety of such estate shall, on the death of either, descend to his or her heirs, subject to debts, curtesy or dower as the case may be." This enactment has been in force since the Virginia Code of 1849 took effect, 1st July, 1850; and therefore Nathan and Mary Higgins took subject to it, and Nathan could not take the fee upon his wife's death, as he would have done by common law, and his exchange with Starkey did not confer a fee in his wife's moiety upon her death, as the fee in reversion went to her heirs. But the statute says that he shall have curtesy in his wife's moiety, and it is settled that the heirs would not be subject to the statute until the close of the curtesy estate by the death of Nathan Higgins, the life tenant by curtesy. Arnold v. Bunnell, 42 W.Va. 473, 26 S.E. 359; Merritt v. Hughes, 36 W.Va. 356, 15 S.E. 56; Austin v. Brown, 37 W.Va. 634, 17 S.E. 207. But here a question of nicety arises, on which but one case has been cited, and on which I have been able to find but little authority. Say that, as the right of Mary Higgins was separate estate,...
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