Pickens v. Stout

• Court: West Virginia Supreme Court
• Writing for the Court: POFFENBARGER, J.
• Citation: Pickens v. Stout, 67 W.Va. 422, 68 S.E. 354 (W. Va. 1910)
• Decision Date: 03 May 1910
• Parties: PICKENS et al. v. STOUT et al.

68 S.E. 354

67 W.Va. 422

PICKENS et al. v. STOUT et al.

Supreme Court of Appeals of West Virginia.

May 3, 1910

Rehearing Denied June 11, 1910.

Syllabus by the Court.

The defense of an ouster between tenants in common, effected by the possession of a stranger under a contract of purchase from one of the co-tenants, does not present a question of title of which a court of equity cannot take cognizance on a bill for partition of the land.

A married woman cannot divest herself of legal or equitable title to land, otherwise than by a deed or contract acknowledged in the manner prescribed by the statute.

To sustain a demand in equity for specific performance of an oral contract of purchase of land, the evidence must be clear, full, and free from suspicion.

To be enforceable in equity, a contract of purchase of land must be complete, fixing the price and terms as well as the identity of the land.

An ouster between joint tenants, tenants in common, or coparceners may be effected by open, notorious, and exclusive possession of the land by a stranger, under a deed or an executory contract of sale, executed by one of the co-tenants to such stranger, purporting to convey or sell the whole thereof to the latter.

Mere execution and delivery of such deed or contract is not of itself sufficient to work an ouster. To it there must be added express actual notice of the adverse claim and possession, or open, notorious, exclusive, and hostile possession of the land by the grantee or vendee of which the true owner in co-tenancy must take notice, and inquire by what right such dominion is exercised.

If when such vendee secures his deed or contract, a tenant is in possession of the land, holding under the true owners, and continues to remain thereon, under an agreement of attornment to the purchaser, of which any true owner has no notice, the possession of the vendee by such tenant is not adverse to such owner; but his possession becomes adverse from the date of the removal of such tenant from the land, if he himself openly uses it or substitutes new tenants thereon.

In such case, the ouster is effected by the combined action of the vendor and vendee; but, in law, the vendor may be regarded as the real actor and the title under which the estate was held in common as his color of title, of which the vendee may avail himself as a claimant under it.

When all the parties to a suit for partition claim title from a common source, title in such common source is conclusively presumed for the purposes of the suit, though no deed or other muniment of such title has been introduced as evidence or is known to exist.

The running of the statute of limitations against a person is not interrupted by his death, and continues to run against his heirs, though they be infants, and, in such case, the heirs are not within the saving clause of said statute.

The disability of infancy at the date of the accrual of a right of action must be shown by the party claiming the benefit thereof. To prevent the bar of the statute of limitations, an infant must show that the right of action accrued to him while he was under such disability, and, therefore, that it did not begin to run against his ancestor, if he claims the property in controversy by inheritance.

The disability of infancy on the part of one or more tenants in common or coparceners does not avail their co-tenants, who though once under the like disability, have failed to sue for the recovery of their interests in the land within five years after the attainment of their respective majorities. Each is barred by the lapse of said period.

A disclaimer, filed by an heir to an estate, in a suit for partition of the real estate of the ancestor, acknowledging advancements to the extent of his full share of the estate in the lifetime of the latter, followed by a voluntary partition of a portion of the land in which those participating in it apportioned, assumed, and paid indebtedness of the estate, precludes such heir and his assigns from participation in a subsequent partition of the residue of the lands.

(Additional Syllabus by Editorial Staff.)

Evidence held too uncertain and indefinite to warrant specific enforcement of an oral agreement for purchase of land.

Color of title is always an element of defense and not a weapon of offense, and without possession or right of possession no person can invoke it, for of itself it confers no title.

Appeal from Circuit Court, Lewis County.

Bill by Celia T. Pickens and others against Benjamin B. Stout and others. Judgment of dismissal, and plaintiffs appeal. Affirmed in part, reversed in part, and remanded.

Williams, J., dissenting in part.

Melvin G. Sperry, for appellants.

W. E. Haymond, for appellees Krenn. W. W. Brannon, for appellee B. B. Stout. A. B. Fleming, Charles Powell, and Kemble White, for appellee South Penn Oil Co.

POFFENBARGER J.

A bill for partition filed in the circuit court of Lewis county, by Celia T. Pickens and others, heirs of Mary Martha Jarvis, deceased, to which Albert R. Bond and others, heirs of Chas. B. Bond, deceased, were defendants, likewise claiming right to partition, by proper pleadings, was dismissed, on final hearing, in so far as it seeks partition, and the heirs aforesaid have appealed.

The land involved had originally belonged to James M. Stout, the father of Mrs. Jarvis and Mrs. Bond, and consisted of about 400 acres. James M. Stout died in 1879, seised and possessed of other lands situated in Harrison county. His wife and seven children, Benjamin B. Stout, Elmer H. Stout, Mary Martha Jarvis, Sue J. Bond, Elizabeth C. Ward, and James F. Stout survived him. The widow has since died. Soon after the death of James M. Stout, a suit in equity was instituted in Harrison county for the partition of his lands; the bill setting forth, as belonging to the estate, the lands in Lewis county as well as those in Harrison. No decree of partition was made in that suit. The estate was liable to some indebtedness which the personal property was insufficient to pay, and in 1883 the Harrison county lands were partitioned by agreement, which agreement was executed by conveyances. The cause was, however, referred to a commissioner, who reported an indebtedness to the administrator, B. B. Stout, one of the heirs, and this indebtedness was apportioned among and assumed by the heirs in the partition; each portion being charged upon the lands conveyed. In that suit, Elmer H. Stout filed a paper in which he represented that he had received from his father, by way of advancement, his full share of the estate, and did not claim any interest therein. Accordingly, he took no part in the partition. The agreement was made among the other six heirs. This did not include the lands in Lewis county. Over these, B. B. Stout exercised control and oversight, with the consent of the other heirs, receiving the rents, issues, and profits and paying the taxes, in so far as they were paid, until 1886. In that year, he sold one portion of the land, containing 245.5 acres, to Joseph Krenn, and the residue thereof, containing 150 acres, to John Krenn, executing to each of them a title bond, which, though not acknowledged for record, was recorded in the clerk's office of the county court, April 19, 1896, the date on which they were executed. These lands were returned delinquent for nonpayment of the taxes thereon for the year 1884 and sold in the year 1885 for such delinquency, B. B. Stout becoming the purchaser, but he took no deed under this purchase until 1893.

Soon after their purchase, the Krenns took possession of the land. On the 25th day of May, 1893, Stout obtained a tax deed under his purchase. On the 3d day of May, 1894, he executed deeds to the Krenns. In 1898 the Krenns leased the land for oil and gas purposes to the South Penn Oil Company. That company has developed the property and found it to be productive of both oil and gas in large quantities. This bill was filed at January rules, 1901, and all interested persons were made parties.

B. B. Stout defends under his purchase at the sale for nonpayment of taxes. He has also procured deeds for all of the interests except that of the Jarvis heirs and a one-half interest, which was conveyed by Benton Stout, one of the heirs, to Chas. B. Bond and Taylor Ward. Ward conveyed his half of the Benton Stout interest to B. B. Stout. Said B. B. Stout claims also to have purchased from Mrs. Jarvis, in her lifetime, and C. B. Bond, in his lifetime, all of their interests, by verbal contracts. The Krenns and the South Penn Oil Company predicate their defense upon the theory of adverse pos session, as well as title acquired from Stout.

Demurrers to the bill were properly overruled. Whatever the title of James M. Stout may have been, B. B. Stout claimed under him and along with his coheirs and could not allow the land to become delinquent and purchase it to their prejudice. He was under a duty to pay the taxes. This being true, it is immaterial whether the long delay in obtaining a deed under his purchase rendered it invalid or not. As all the parties must necessarily claim under the same title, all questions of title are cognizable in a suit for partition. There is no strange, adverse title involved, as color or otherwise, unless it be the deeds made in 1893 and 1894, and the period of limitation since their date has not elapsed. As to whether the title bonds, made in 1886, are color of title, or there has been sufficient possession under them, will be deferred for the present.

The decree does not expressly state the ground upon which relief was denied. It dismisses the bill, declaring the Krenns have perfect and indefeasible right and title to the land, setting forth the facts relating...