Morley v. Smith
| Decision Date | 08 May 1923 |
| Docket Number | (No. 4743.) |
| Citation | 118 S.E. 135 |
| Court | West Virginia Supreme Court |
| Parties | MORLEY. v. SMITH et al. |
Rehearing Denied June 29, 1923.
(Syllabus by the Court.)
Appeal from Circuit Court, Roane County.
Suit by M. E. Morley against L. F. Smith, the United Fuel Gas Company, and others. From a decree partitioning land, defendant United Fuel Gas Company appeals. Affirmed.
R. G. Altizer and Raymond Dodson, both of Charleston, for appellant.
Harper & Baker, of Spencer, for appellee.
The defendant United Fuel Gas Company appeals from a decree of the circuit court of Roane county partitioning 9 acres and 105 square rods of land.
Nancy L. J. Smith died intestate many years ago, seised and possessed, among other real estate, of certain land described as 33 acres (but in fact containing only 9 acres and 105 square rods), situate in Roane county, leaving surviving her 11 children as her sole heirs at law. By deed of July 24, 1909 J. M. Smith, son of Nancy L. J. Smith, conveyed to plaintiff, M. E. Morley, an undivided Vn in fee of said land; by deed of September 8, 1911, plaintiff conveyed the surface of said interest to E. F. Smith, who thereafter, by deed of June 28, 1921, reconveyed the same to plaintiff; and by deed of September 25, 1919, Fannie Smith,. granddaughter of Nancy L. J. Smith, conveyed to plaintiff her undivided 1/22 interest in fee in said land, whereby the plaintiff became vested with 990/7260 (3/22) undivided interest in fee in said land, which he owned and possessed at the institution of this suit. The undivided remainder of said land was then held and owned by the defendants as follows:
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|Prussia Carper |660/7260 in fee |
|-----------------------|---------------------|
|R. K. Ogden |55/7260 in fee |
|-----------------------|---------------------|
|A. J. F. Hopkins |55/7260 in fee |
|-----------------------|---------------------|
|H. C. Looney |275/7260 in fee |
|-----------------------|---------------------|
|L. F. Smith |5225/7260 surface |
|-----------------------|---------------------|
|H. C. Looney |2530/7260 oil and gas|
|-----------------------|---------------------|
|Annabelle Rader |660/7260 oil and gas |
|-----------------------|---------------------|
|Rosa Chapman |132/7260 oil and gas |
|-----------------------|---------------------|
|Lizzie Drennin |132/7260 oil and gas |
|-----------------------|---------------------|
|L. H. Moore |132/7260 oil and gas |
|-----------------------|---------------------|
|Okey Chapman |132/7260 oil and gas |
|-----------------------|---------------------|
|United Fuel Gas Company|1782/7260 oil and gas|
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The plaintiff in his bill alleges that his interest in the land is susceptible of being laid off to him in kind and prays that the same may be done.
The court, by its decree of September 22, 1921, overruled the demurrer and upon the bill, and answer of the United Fuel Gas Company, decreed the ownership of the land as above set out, and further:
"That partition be made of said lands and oil and gas interests, provided the same are susceptible of partition, between and among said several persons, allotting to each of them their respective interests as herein already shown, and that the commissioners hereinafter appointed to make partition of said lands and oil and gas interests do make such partition and assign to each of said persons his respective interests therein, if partition of said interests can be made in that way; that if par-tition cannot be made in that way, that said commissioners assign to such of said persons entitled to share therein, such parts of said lands and oil and gas interests as may be susceptible of such assignment to them, and report that the interests not assigned as not being susceptible of partition; that if said commissioners find that said lands and oil and gas interests cannot be partitioned, giving to part of said persons their respective interests, that they shall report such fact to the court; and if said commissioners report that none of said lands and oil and gas interests, or any part or interests therein, cannot be partitioned among the persons owning the same, then they shall further report to the court all of the facts and circumstances upon which they base their findings."
The commissioners, as shown by their report filed in the cause January 23, 1922, allotted the land in controversy to the owners as follows:
To plaintiff, M. E. Morley, as lot C, 1 acre and 28 square rods in fee;
To defendant Prussia Carper, as lot D, 118 square rods in fee;
To defendant R. K. Ogden, as lot E, 18 square rods in fee;
To defendant A. J. F. Hopkins, as lot F, 18 square rods in fee;
To defendant H. C. Looney, as lot B, 83 square rods in fee;
To defendant L. F. Smith, as lot A, 7 acres surface;
To defendant United Fuel Gas Company, 14/41; H. C. Looney 18/41; Annabelle Rader 5/41; and Rosa Chapman, Lizzie Drennin, L. H. Moore, and Okey Chapman each 1/41 of the oil and gas underlying said 7 acres, lot A.
To which report the defendant United Fuel Gas Company excepted on the ground, among others, the commissioners should have reported that the land, or at least the oil and gas thereunder, be sold because not susceptible of partition.
Under exception to the report of commissioners that partition should have been by sale, the appellant directs its fire against the action of the circuit court, and for this attack it marshals the cases of Hall v. Vernon, 47 W. Va. 295, 34 S. E. 764, 49 L. R. A. 464, 81 Am. St. Rep. 794; Preston v. White, 57 W. Va. 278, 50 S. E. 236, and Robertson Land Co. v. Paull...
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