Merritt et al. v. Hughes et al.

• Decision Date: 02 April 1892
• Citation: 36 W.Va. 356
• Court: West Virginia Supreme Court
• Parties: Merritt et al. v. Hughes et al.

36 W.Va. 356

Merritt et al.

v.Hughes et al.

Supreme Court of Appeals of West Virginia.

Submitted February 8, 1892.

Decided April 2, 1892.

J. Partition.

A reversioner or remainder-man can not compel partition durng the continuance of the particular estate.

2. Partition.

A wife owning land in fee (not separate estate) whose husband las made a deed passing such estate as is vested in him as husband, can not, while such estate continues, compel partition.

3. Statute of Limitations-Life-Estate Construction of

Statutes.

Where a wife is seised in fee of land (not separate estate) and her husband makes a deed purporting to convey the fee, but void as to the wife, such deed vests in the grantee a life-estate either for the joint lives of the husband and wife or by the curtesy according to facts; and the statute of limitations does not begin to run against the wife's reversion until the termination of such lifeestate.

4. Statute of Limitations Life-Estate Construction of

Statutes.

Though such grantee be in possession twenty years during the continuance of such life-estate, yet that will not bar the wife's reversion under section 4 of chapter 104 of the Code. That section has no reference to a such case.

5. Statute of Limitations Life-Estate Construction of

Statutes.

A continuance of possession by such grantee for ten years after the termination of such life-estate would bar the wife's reversion under section 1 of chapter 104 of the Code.

6. Statute of Limitations Life-Estate Construction of

Statutes.

A wife owning land in fee (not separate estate) makes a deed purporting to convey the land in fee, but her husband does not join in the deed. The deed being void, possession by the grantee is adverse to husband and wife. Twenty years of such possession will, under section 4, c. 104, of the Code, bar her right, though she remained married during the whole twenty years; and suit to recover the land may be brought during coverture, though ten years of such possession have elapsed. This does not mean that if, after ten years, the coverture cease, there must not be suit within five years after it ceases, under section 8, c. 104.

JE. W. Wilson, J. Ruffner and Brown $ Jackson for appellant cited 34 W. Va. 107; 15 1ST. Y. 623; 48 111. 453; 52111. 449; 19 Minn. 170; 4 Munf. 328; 3 Rand. 364; 2 Gratt. 340; 2 Min. Inst. 416.

Mollohun § McCUntie for appellees cited Free. Co-Ten. & Par. §§ 440, 441; 4 Minn. 328.

Brannon, Judge:

John Nugent died in 1859, the owner of land in Kanawha county, which descended to thirteen children. Two of these children are Lucy A. Merritt, wife of Moses Merritt, and Theresa Wright, wife of Washington Wright, Two others of said children, George and Thomas Nugent, acquired the interests of all their coparceners, except those of Lucy Merritt and Theresa Wright. On 3d September, 1864, Washington and Theresa Wright made a deed for their interest to George and Thomas Nugent. On 1st August, 1864, Lucy A. Merritt made a deed for her interest to George and Thomas Nugent, who have since sold various paiis of said lands to different persons, and these persons have sold to others, so that the lands are owned by various persons. Before their father's death said Lucy A. Merritt and Theresa Wright were married.

Lucy A. Merritt and husband and Theresa Wright and husband, on 30th July, 1884, brought a suit in equity in the Circuit Court of Kanawha county against James Hughes and others, owners of said lands, claiming that the certificate of acknowledgment of the deed from Theresa Wright and husband to George and Thomas Nugent was defective, and the deed void as to Theresa Wright, leaving her still owner of her interest in the land; and that, as the husband of Lucy A. Merritt did not join in her deed to Gecrge and Thomas Nugent, that deed was void, and left her still owner of her interest. Upon demurrer the bill was dismissed, and the Merritts and Wrights appeal.

Some important questions arise in this cause. It is conceded, and is unquestionable, that the deed from Mrs. Wr ght and her husband is void because of insufficiency of the certificate of the wife's acknowledgment, and that the deed from Mrs. Merritt is void as to both her and her husband because the husband did not unite therein with his wife; and thus the estates of the wives in the land are wholly unaffected by said deeds.

It is clear also, that when title by descent vested in the married women on the death of their father, their husbands became by virtue of their marital rights under the then existing law entitled to the possession and rents and profits of the interests of their wives in said land during the joint lives of the husbands and wives, having thus a life-estate.

The deed of Mrs. Wright and husband, though void as to her, is valid as to the husband, and passed to the grantees an estate during the joint lives of husband and wife. Thus arises the question whether they did not bring this suit for partition prematurely. Could they sue while they were both living, and their vendees were yet entitled to hold possession under such life-estate, conferred by such deed?

Mrs. Wright was not entitled to possession until her husband's death a reversion after the termination of a lifeestate. Can a remainderman or reversioner maintain a bill for partition while the life-estate exists? I think it very clear that he can not.

The reason, for which the law enables a party to compel partition, is that a possession common to all the joint owners, giving all right to rents and profits, entailing clashing management and confusion, and forbidding permanent improvement by individuals, may be severed, and the land divided, so that each may enjoy his separate parcel, and do with it as he will.

Prof. Minor, in 2 Inst. 416, states the law to be that "an outstanding, continuing, particular estate for life existing in another in the land" will not forbid a partition; but the authorities he cites do not support the text.

Freeman on Partition (section 446) says: "It is a general rule prevailing in England without exception and also throughout a majority of the United States, that no person has right to demand any court to enforce compulsory partition, unless he has an estate in possession one by virtue of which he is entitled to enjoy the present rents or possession of the property as one of the co-tenants thereof." See, also, section 440. Upon examination of numerous authorities I find this position of Freeman fully sustained.

In Nichols v. Nichols, 28 Vt. 228, it is held that one holding under a deed an undivided half of a farm, which reserved a life-estate, can not compel partition, as right to immediate possession is necessary to maintain the proceeding.

In Brownell v. Brownell, 19 Wend. 367, it is held that "proceedings in partition under the statute can be instituted only by a party who has an estate entitling him to immediate possession." The same rule is recognized in Stevens v. Enders, 13 1ST. J. Law 271, and in Connecticut in Culcer v. Culver, 2 Root, 278.

Ir Packard v. Packard, 16 Pick. 191, it is held that partition can not be sustained where the party has only a reversionary interest, not a vested estate in possession. Same principle in Pennsylvania, in Ziegler v. Grim, 6 Watts 106; and in Brown v. Brown, 8 N". H. 63, held, that a "partition can not be maintained by one who has only an interest in reversion or remainder after a life-estate."

Ir note to Nichols v. Nichols, 67 Amer. Dec. 703, it is stated: "In nearly all of the United States it is a necessary prerequisite to the maintenance of an action for the partition of lands that the petitioner have, at the commencement of his action, an actual or constructive possession, in common with the defendants, of the land. Both title and possession, or right of possession, must be vested in the petitioner. Schori v. Stephens, 62 Lid. 441; Florence v. Hopkins, 46 K Y. 182; Hughes v. Hughes, 63 How. Pr. 408; Chaoin v. Sears, 18 Fed. Rep. 814; Sullivan v. Sullivan, 66 K Y. 37; Brownell v. Brownell, 19 Wend. 367; Hoyle v. Huson, 1 Dev. 348; Whitten v. Whitten, 36 K H. 332.

u Remainder-man or reversioner can not compel. A legitimate application of this rule to the case of reversioners and remainder-men would prevent their maintaining proceedings to enforce partition, and such is unquestionably the law. This is the doctrine of the principal case, and it is supported by Schori v. Stephens, 62 Ind. 441; Hughes v. Hughes, 63 How. Pr. 408; Tabler v. Wiseman, 2 Ohio St. 208; Sullivan v. Sullivan, 66 N. Y. 37. In this latter case the court say: 'There are obvious reasons, why a remainder-man should not, especially as against tenants in possession, whether of a term for years, for life, or in fee, be entitled to institute proceedings. Any partition which might be made at his instance, though equal when made, might be unequal when the estate should vest in possession.' "

I will add that partition should be made according to quality and value, not quantity. The values may be differed at the close of the particular estate from what they are vvhen the partition is made. See, also, Striker v. Mott, 2 Paige, 396, (22 Am. Dec. 646, and note.)

The remainder-man can not get immediate possession, though he should have partition. Why give him partition before his right vests in actual possession? He can have by virtue of his estate ample process of law to prevent waste and preserve his estate without partition. Virginia cases cited for the proposition that a remainder-man may sustain a suit for partition do not apply. In Otley v. MeAlpine, 2 Gratt. 340, the tenant by curtesy sued, but he was owner of one of the shares in fee, and thus entitled to sue. In Wisely v. Findlay, 3 Rand. (Va.) 361, Wisely owned in fee, and there was no life-interest in the way. In McClintic v. Manns, 4 Munf. 328, there was no life-estate, only a charge of a living. Hence, when this suit was brought, Mrs. Wright and husband could not bring it, because of the...