Perry v. McDonald

• Decision Date: 31 October 1911
• Citation: 72 S.E. 745,69 W.Va. 619
• Parties: PERRY et al. v. McDONALD et al.
• Court: West Virginia Supreme Court

72 S.E. 745

69 W.Va. 619

PERRY et al. v. McDONALD et al.

Supreme Court of Appeals of West Virginia.

October 31, 1911

Submitted March 22, 1910.

Syllabus by the Court.

The holder of the true superior title to land which is in his actual possession may maintain a suit in equity to remove from his title the cloud of a claim by another under an inferior title.

That the possession relied on by a plaintiff in a suit to remove cloud was taken in the night time, or for the purpose of bringing suit, when no prior exclusive possession was disturbed or tortious act committed, will not deprive equity of jurisdiction.

Appeal from Circuit Court, Summers County.

Bill by Mary A. Perry and others against George R. McDonald and others. Decree for plaintiffs, and defendant McDonald appeals. Affirmed.

Chafin & Bland and Vinson & Thompson, for appellant.

Ragland & Greene and Campbell, Brown & Davis, for appellees.

ROBINSON J.

In this suit for the removal of cloud from title to land, the bill sets up a superior title in plaintiffs as against an inferior one in defendant and alleges that plaintiffs are in actual possession. On the hearing of the cause, from the pleadings and proofs, the court granted plaintiffs the relief sought. The decree in their behalf is, by defendant's appeal, challenged as erroneous.

There is no merit in the assignment that the court erred in overruling the demurrer to the bill. Defendant argues that the bill does not aver that the title of the party whose superior deed is relied on by plaintiffs is now vested in them. This point is not well taken. The bill sufficiently shows that plaintiffs are the heirs of the grantee in this deed, and that the title is now in them by descent.

Defendant further contends that no such suit as this one can be maintained. That a party in actual possession of land may, by a suit in equity, remove a cloud from his title is too well settled to be discussed here. "One in actual possession of land under superior title may go into a court of equity to remove the cloud over his title arising from a claim under color of title thereto by another under an inferior adverse title." Whitehouse v. Jones, 60 W.Va. 680, 55 S.E. 730, 12 L.R.A. (N. S.) 49.

The mere fact that plaintiffs went into possession of the land in the night time cannot defeat their right to rely upon that possession as a basis of this suit. The act was not unlawful or tortious. Defendant has not shown that he was in absolute possession at that time. The only possession on his...