Pillow v. Sw. Va. Imp. Co..1

• Decision Date: 26 September 1895
• Citation: 92 Va. 144,23 S.E. 32
• Court: Virginia Supreme Court
• Parties: PILLOW et al. v. SOUTHWEST VIRGINIA IMP. CO. et al. (two cases).1

23 S.E. 32

92 Va. 144

PILLOW et al.

v.SOUTHWEST VIRGINIA IMP. CO. et al. (two cases).¹

Supreme Court of Appeals of Virginia.

Sept. 26, 1895.

Objections to Evidence—Equity—Partition — Trial of Legal Title — Evidence — Constitutional Law—Trial by Jury—Bona Fide Pubchaser—Rights of Coparceners.

1. Where the incompetency of a witness to testify as to a transaction with a person deceased is known, objection cannot be made thereto after cross-examination.

2. Code, § 2562, provides that the circuit court, in the exercise of equity jurisdiction, may take cognizance of all questions of law affecting the legal title that may arise in a suit for partition between coparceners, etc. Meld, that defendants cannot defeat complainants' right to have their legal right settled in a suit for partition by merely denying complainants' right to partition, and holding adversely to them, where defendants' grantor was a coparcener with complainants.

3. Code, § 2562, providing that the circuit court, in its equity jurisdiction, may take cognizance of all questions of law affecting the legal title that may arise in suits for partition, does not conflict with Const, art. 1, § 13, guarantying trial by jury, because trial by jury in such case did not exist at the time of the adoption of the constitution.

4. Where defendants, in partition, claimed under one who was a coparcener with plaintiffs, and asserted that said coparcener subsequently held adversely to the others, the burden of proof is on defendants to establish some notorious act of ouster or adversary possession brought home to the knowledge of the others.

5. One who purchases land is affected with constructive notice of a recorded conveyance from the preceding grantor to another.

6. One of several coparceners claiming under an ancestor who has a defective title cannot purchase the outstanding title, falsely state the consideration in his deed, conceal the fact of purchase from his coparceners, and then rely upon lapse of time to defeat their right to get the benefit of such purchase.

7. In the absence of fraud or any relation of trust or contract, equity cannot compel a conveyance of land in a foreign state, where the deed under which complainants claimed was not recorded in said state, and defendants did not have actual notice of complainants' rights.

Appeal from circuit court, Tazewell county; S. W. Williams, Judge.

Two suits for partition by Malinda Pillow and others against the Southwest Virginia Improvement Company and others. There were decrees for defendants, and complainants appeal. Decree in the first case reversed; in the second, affirmed.

Harman, Blair & Blair, J. H. Fulton, and S. M. B. Coulling, for appellants.

A. J. & S. D. May and J. S. Clark, for appellees.

BUCHANAN, J. The record in the second-named case shows that Thomas Turner, deceased, whose heirs brought the suit for partition, had some years before his death sold the land to Emanuel Church, and executed a title bond to him therefor; that the purchase money had been fully paid; and that his heirs held merely the legal title, without any beneficial interest in the land. The title bond was not produced, but the evidence shows that search for it was made among the papers of the Flat Top-Land Coal Association, in whose possession it ought to have been, and it could not be found. The proof of its existence, however, is clear and satisfactory. If the depositions of the witnesses who testify upon that point can be read.

The objection is made that neither Church, to whom the title bond was executed, nor any other claimant of the land under the title bond, by assignment or transfer, are competent witnesses, upon the ground that Thomas Turner, who executed the title bond, is dead, and that they are parties to the contract or transaction which is the subject-matter of investigation. Whether they are parties to the contract or transaction, within the meaning of the statute (Code, § 3346), it is unnecessary to decide, as no objection to their competency on that ground was made when their depositions were taken. Objection to the competency of a witness ought to be made, where his incompetency is known, before he is examined in chief; at least, it cannot be made after cross-examination. The complainants in this case objected to certain questions and answers of the witnesses upon other grounds, and then cross-examined them. It was too late afterwards to make the objection relied on. Hord's Adm'r v. Colbert, 28 Grat. 49, 55; Smith's Ex'x v. Profitt's Adm'r, 82 Va. 832, 1 S. E. 67; 1 Greenl. Ev. § 421. The complainants in this case having no beneficial interest in the 100 acres of land which they sought to have partitioned, the circuit court properly dismissed their bill, and its action must be affirmed.

It appeal's in the other case, which is substantially between the same parties, that Thomas Turner purchased the 120-acre tract of land from Rufus K. Hill and Elizabeth, his wife, took a conveyance from them, went into possession of the land, and remained in possession until his death, in the year 1875 or 1876. He left a widow and certain heirs, named in the bill. His widow and one of the heirs, Rice D. M. Turner, continued to live upon the land until the spring of 1882. In March, 1880, Rice D. M. Turner obtained a conveyance to himself from Rufus K. Hill and wife and Melvina Hamel for the land, at the nominal consideration of $175, but in fact for the consideration of $37.50. In October in the year 1881, R. D. M. Turner and wife, together with John Graham, Jr., who seems to have acquired some mineral interests therein from R. D. M. Turner, conveyed the land to Joseph I. Doran, who conveyed it to the Southwest Virginia Improvement Company; and that company conveyed it to the trustees of the Flat Top-Land Trust, who are now in possession of the land, claiming the whole of it adversely to the complainants, and denying their right to partition.

The defendants insist that our statute (Code 1887, § 2562), which authorizes a court of equity in a partition suit to settle all questions of law which may arise in the case, does not authorize such suit where a defendant to the suit in possession of the land asserts an adverse claim, and denies the rights of the claimants to partition. They base their contentions upon two grounds:

(1) That the statute was not intended to provide for such a case.

(2) That, if it did. it would be unconstitutional, in this: that it deprives the adverse claimant of the right of trial by jury, which is guarantied to him by section 13, art. 1, of the constitution.

Before the enactment of the statute in question, great delay and many difficulties frequently arose in suits for partition where questions of title were involved; and, to obviate these delays and difficulties, the statute was passed which authorizes a court of equity In suits for partition to decide all questions of law which may arise in such cases. Of course, a partition suit cannot be made a substitute for an action of ejectment; and if the defendant in such suit does not claim under any one who was a joint owner, such as a coparcener, joint tenant, or tenant in common with the complainant, or those under whom he claims, then it is clear that such suit would not be proper; but if the defendant does claim under one who was a joint owner with the complainant, or those under whom he claims, the defendant cannot defeat the right of the complainants to have their legal rights settled in a suit for partition by merely alleging and proving that he denies the rights of the complainant and holds adversely to him. If the jurisdiction of the circuit court could be defeated in this manner, the statute would be of little value, and would fail to attain the chief object for which it was passed. 2 Minor, Inst. (Last Ed.) 485; Currin v. Spraull, 10 Grat. 147, 148; Davis v. Tebbs, 81 Va.600; Bradley v. Zehmer, 82 Va. 685; Fry v. Payne, 82 Va. 759, 1 S. E. 197.

As to the other ground, that the statute is unconstitutional, because it deprives the defendant of the right of trial by jury, which is guarantied to him, little need be said. The provision in any constitution, whether state or federal, which guaranties the right of trial by jury, must be read in the light of the circumstances under which it is adopted. Unless the right of trial by jury existed at the time of its adoption in the particular case, it could hardly be contended that such a right was to be given by the constitution, unless it expressly so provided or necessarily implied. The statute in question was in the Code of 1849. Since then the people of the state have adopted the constitution of 1851 and the present constitution, and, it must be presumed, with full knowledge of such statute, and with the further knowledge that with that statute in force a trial by jury in such cases could only be had when a court of equity in its discretion desired it, and not as a matter of right. The constitutionality of the statute, as well as its wisdom, seems to have been concurred in by the profession, as, during the long period it has been in force—now nearly fifty years, —its constitutionality has never, so far as we know, been heretofore questioned in this court The...