Reed v. Bachman
| Decision Date | 05 March 1907 |
| Parties | REED v. BACHMAN et al. |
| Court | West Virginia Supreme Court |
Submitted June 9, 1905.
On Rehearing, May 22, 1907.
Syllabus by the Court.
To enable one joint tenant or tenant in common in exclusive possession of land to effect an ouster against his co-tenant so as to defeat the right of such co-tenant by adverse possession under the statute of limitations, such co-tenant must have notice or knowledge of such hostile claim. Mere silent possession, ever so long, by one taking rents and profits, without notice or knowledge of such adverse claim on the part of the other, will not be adverse possession under the statute.
Where one joint tenant is in exclusive possession under the common title, a co-tenant cannot lose his right by mere laches in failing to demand admission into joint possession or share of the rents and profits. There must be an ouster operating to give title under the statute of limitations.
Where one joint tenant or tenant in common acquires title from a sale under a deed of trust made by all the co-tenants for a debt binding all, and the sale is caused by his failure to pay his share of the debt, he cannot, under his right so derived, hold the land against his co-tenants.
Appeal from Circuit Court, Pleasants County.
Bill by Joseph S. Reed against Margie E. Bachman and others. Decree for defendants, and plaintiff appeals. Reversed.
H. P Camden, R. E. Bills, G. D. Smith, and E. A. Brannon, for appellant.
Van Winkle & Ambler, Clyde B. Johnson, J. H. W. Simpson, and John F. Barron, for appellees.
In November, 1903, Joseph S. Reed began a suit in equity against the administratrix and heirs of Bachman, the Vespertine Oil Company, and others. Numerous demurrers were filed by Bachman's representatives and other defendants, relying upon want of equity in the bill, laches, staleness of demand and the statute of limitations. The bill was dismissed on demurrer, and Reed appeals.
As appears from the bill, in 1870 Paterson, Doutt, and Braford conveyed a tract of 1,500 acres of land in Pleasants county to Reed, Reno, Reeves, and Bachman for the consideration of $5,500, of which $3,500 was paid cash, and for the residue Reed, Reno, Reeves, Bachman, and Swope united in a deed of trust conveying the land to Hall, trustee. Swope was not included in the deed, but intended to take a fifth interest. Reed advanced for Swope his share of the down payment but Swope never repaid Reed in money. Soon after said parties acquired said land Reed, Reno, Reeves, Bachman, and Swope entered upon the manufacture of lumber from the timber on the land. Bachman was placed by the parties in exclusive management and control to carry on the work as trustee and agent of his co-tenants. In the panic of 1873 the business failed and was abandoned. In July, 1874, Reeves conveyed his interest to Reed and Bachman, and they made a deed of trust on the Reeves interest to secure payment of the purchase money going to Reeves. Reno transferred his fifth to Reed, but made him no deed for it. Reed claimed also the Swope interest, having paid for it. Reed claimed seven-tenths. Bachman is conceded to own his original fifth interest and half the Reeves fifth, making a three-tenths interest in the tract. In 1877 the Reeves fifth was sold under the deed of trust made by Reed and Bachman to secure Reeves its purchase money, and Cain and Doutt became purchasers, and took a deed from the trustee for said fifth, and a few days thereafter Cain and Doutt conveyed the said Reeves fifth to Bachman. Bachman never paid any part of the purchase money on the original purchase. Reed paid more than his fifth. He paid fully his share of the deferred purchase money. A few days after Bachman had so acquired the Reeves fifth Doutt, one of the creditors of the Reeves interest, and also a creditor in the original deed of trust given to Hall in 1870 by Reed and others, on the 1,500 acres to secure its purchase money, executed a release to Bachman, releasing the lien as to two undivided fifths of the tract of 1,500 acres. A few days after this release sale was made by the said trustee under the trust deed given in 1870 on the 1,500 acres to secure its purchase money, the sale being the three-fifths of the said tract, and Doutt became the purchaser, and took from the trustee a deed for the three-fifths, and a few days later Doutt conveyed said three-fifths to Bachman. Bachman has been in the sole, exclusive possession of the land since about 1870, when the joint lumber business began. He went upon the land into a house built on it by the joint owners about 1870, and after the abandonment of the lumber business by the joint owners in 1873 Bachman remained in sole possession. From 1870 to 1885, when he died, Bachman was in sole possession, cutting timber from the land, using the land, taking all its rents and profits, and rendering no account thereof. Since Bachman's death his widow and heirs have continued such possession, taking the rents and profits, leasing to various ones for oil, and they developing oil and paying shares of it to the Bachmans, and the Bachmans rendering no account thereof. No demand was ever made by Reed on Bachman or his heirs for an account of rents and profits. Reed resided in Pennsylvania, and, as the bill states, still trusting Bachman as his co-tenant, agent, and trustee in possession of the land, and ignorant of the sales under the trust deeds until 1884. Reed had not seen Bachman from 1874 to 1884, and had had no communication with him. The bill says that in 1884 Reed met Bachman in Pittsburg, and Bachman told Reed that, in order to protect their joint interests, he had certain interests in the land sold under the deeds of trust, and had bought them in for the joint benefit of Reed and himself, and that Bachman by agreement with Reed then made was to remain in possession of the whole tract as Reed's co-tenant and trustee, and use and occupy the dwelling house in consideration of payment of all taxes. The bill says that Reed knew nothing of Bachman's death until the year 1900 or 1901. The bill states that, when the lumber business failed, Reed was without means of support from insolvency, and at the age of 60 years was beginning life over again, and paid no attention to the land, because he regarded it valueless to him so long as he was without money to improve and cultivate it, and for the further reason that he had placed Bachman in full charge and control of the land as his agent and co-tenant, and trusted implicitly to him to protect Reed's interest. The bill charges that Bachman derived from the land much money, amply sufficient to discharge the said deeds of trust, and more. The bill charges that Bachman had plenty of money in his hands belonging to himself and Reed to pay off the trusts, but that he refused to pay them in order to have sales made under them, so that he might buy in the land and hold it in sole ownership; that to that end he fraudulently and wrongfully colluded and conspired with the trustees under said deeds of trust, and with Doutt and Cain, purchasers under the sales under said trusts, to accomplish the end aforesaid. The bill states that Reed became embarrassed in 1873, and in 1876 made an assignment to Dicken of his property, including his interest in this land, for the payment of his creditors; but that his other property discharged his debts, and that Dicken reconveyed his interest in this land to him by deed September 25, 1903. The bill further states that Bachman's heirs had by certain oil companies as lessees caused large quantities of petroleum oil to be taken from the land, and that large amounts of money had been received therefrom by said heirs in the way of rentals and royalties, and by the lessees under the Bachman right, without any account therefor to Reed. The nature or character of the estates conferred by these leases is not specified in the bill. The bill set up the title claim of Bachman, and claimed that the said purchases by Bachman derivatively from said trust deeds were for the common benefit of Reed and Bachman as co-tenants, and that Bachman could not claim under them, for his sole ownership, and prayed that Bachman's heirs and their lessees who had taken oil from the land be required to account for Reed's interest therein, and that the land be partitioned between him and Bachman's heirs according to their respective rights.
In our conception of this case, the question is: Is Reed barred by adverse possession under the statute of limitations? Boggess v. Meredith, 16 W.Va. 1. ...
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