Patterson v. Martin

Decision Date01 February 1890
CourtWest Virginia Supreme Court
PartiesPatterson v. Martin.-(Snyder, President, absent.)
1. Partition Consideration.

A person who once had an interest as joint-tenant with others in land, and whose interest has passed from him, can not effectually unite with his former co-tenants in a deed of partition; and such deed, for want of mutuality and consideration, will not bar the representative of such co-tenant from afterwards having a partition under the law.

2. Partition Evidence Possession.

A voluntary partition, not evidenced by writing, in order to defeat a right to such partition under the law, must be clearly proven and must be followed by actual possession in severalty of the several parcels, pursuant to such voluntary partition.

3. Witness Evidence Transactions With Decedents.

A party to a suit, although he have no interest in its result, is incompetent to give evidence of a personal transaction or communication between him and a person who, at the time of the examination of such party, is dead, against a devisee of such deceased person.

J. W. Davis and J. A. Preston for appellants.

W. W. Adams for appellees.

Brannon, Judge:

In 1829 George Alderson and John Anderson conveyed to James Patterson, Joseph Patterson and William Patterson a tract of land described as containing 150 or 200 acres, but which in fact contained more about 400 acres then in Greenbrier county, now in Summers county, on the waters of Meadow river. James Patterson died, having devised his interest in this land to JohnL. Patterson; and Joseph Patterson died, having devised his interest to John C. Patterson; and William Patterson died, having devised his interest to-Counsel below.

Thomas P. Patterson. By deed dated November 6, 1883, John C. Patterson conveyed his one third interest in the tract to Sarah F. Martin. Under a decree of the Circuit Court of Greenbrier county in the suit of Caraway's Ex r v. Patterson's Adm'r and'others, J. W. Arbuckle, as sp3cial commissioner, sold the undivided third interest, expressly as an undivided third interest, in said tract owned by William Patterson in his lifetime, to pay his debts, and Thomas Patterson bid it in; but this sale was set aside, and afterwards this undivided third interest was re-sold, and A. C. Snyder purchased it, and his purchase was confirmed as a purchase of such undivided third interest, and said Snyder united with said commissioner, Arbuckle, in a deed dated November 7, 1881, reciting such judical sale, and reciting that said Snyder had sold the land to the grantees in such deed, and conveying to said Sarah F. Martin for life, with remainder to Lewis M., Franklin P., Nelson, and A. C. Martin, a specific portion of said tract, by metes and bounds described as containing 188 acres.

John L. Patterson brought this present suit against Sarah F. Martin and others, asking a partition of the land between himself and John C. Patterson and Sarah F. Martin, and her children, Lewis M. and others. Sarah F. Martin answered the bill, alleging that immediately af'ter the first judicial sale above mentioned, and before it was set aside, Thomas Patterson, James Patterson, and Joseph Patterson made a partition of said land. By an amendment of their answer on February 12, 1885, this answer is made to aver that James, Thomas and John C. Patterson executed a deed of partition between them as to the part at least that Thomas, as devisee of William, was to have, and exhibited a deed, which the answer alleged was found in John C. Patterson's possession.

This answer alleged that such partition gave Thomas Patterson the upper end, Joseph Patterson the middle, and James Patterson the lower end of said tract, which lower end was cut off from the other two interests by the county road leading from Montgomery's school-house to Lick creek, and that the parties took possession under said partition of the parcels. The answer averred that Joseph Patterson marked the line between the portion he was to get and the portion which Thomas Patterson was to get as the William Patterson share; and that in pursuance of said partition, to carry it out and give it certainty, a deed of partition was prepared between the parties, but that Joseph Patterson died before signing it, but that it was signed by Thomas Patterson and James Patterson and acknowledged before a notary, Z. Sandige, by which deed there was conveyed to Thomas Patterson the upper end, to Joseph Patterson the middle, and to James Patterson the lower end of said tract, lying on the north of said road. No further or more definite description of the parcels under such partition is giveu in this answer.

This answer alleged further that after said Snyder had sold the interest ol William Patterson, purchased by him of said Arbuckle, commissioner, to Sarah F. Martin and her children, James Patterson delivered said partition-deed to Henry Martin, husband of Sarah P. Martin, who took it to Lewisburg to procure its execution by John C. Patterson, the devisee of Joseph Patterson then deceased, and that he left the deed with said Snyder to procure John C. Patterson's execution of it, and it was delivered to him, and signed and acknowledged by him, and that he sent it by James Patterson to said respondents Sarah F, and Henry Martin, but that it had not reached them. It is likely this clause of the answer was before the amendment made in 1885, which filed this deed. This answer also alleged that by a deed filed with it, dated November 6, 1883, John 0. Patterson conveyed his interest to Sarah F. Martin.

An order was made upon the bill and said answer before any evidence was taken, directing a commissioner to inquire what interest either of the parties had in the land, whether any partition had ever been made, and to take evidence in reference to any partition, and as to the title of any of the parties. The commissioner reported that the testimony preponderated in favor of plaintiff; that there were three undivided interests therein belonging to the parties; and that no partition had been made. The defendant, Martin, excepted, because the report found against a former partition. Thereupon the Court appointed commissioners to divide said entire tract, into three parcels, and assign one to plaintiff, one to Sarah F. Martin, and the third to Sarah F. Martin and her four children.

The commissioners filed their report, and Sarah F. Martin and her husband and children excepted to it, on the ground that the plaintiff was assigned 158 acres, the exceptors two tracts of ninety eight and ninety five acres for their two thirds, and that the land assigned p aintiff was as good in quality as their tracts. Numerous depositions were taken; some before the commissioner, others elsewhere. The plaintiff offered the defendants Martin the privilege of selecting either two of the three lots into which the land had been divided, and they declining to make choice, the Court confirmed such partition. Sarah F. Martin and her chi 1 dren appealed.

The bill alleged the community of interests as above stated, and also alleged that no partition had ever been made; and the answer having alleged, in the manner above stated, that such partition had been made, thus denying...

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