Smith v. New Huntington Gen. Hosp.

• Decision Date: 20 May 1919
• Citation: 84 W.Va. 281
• Parties: Smith v. New Huntington General Hospital.
• Court: West Virginia Supreme Court

84 W.Va. 281

Smith

v.New Huntington General Hospital.

Supreme Court of Appeals of West Virginia.

Submitted May 13, 1919.

Decided May 20, 1919.

1. Husband and Wipe Conveyance by Husband to Wife Interest of Wife Statute.

The interest of a married woman in land conveyed to her and her husband jointly in fee is, by virtue of $ 3, Ch. 66, Code, her sole and separate property which she has the power to lease without her husband's consent. (p. 282).

2. Tenancy in Common Unlawful Detainer Lease by One Coten ant Bights of Lessee.

The lessee of one cotenant succeeds to the rights of his lessor, is entitled to enjoy the possession together with the other co tenant, and cannot be ousted by him. The action of unlawful detainer does not lie in favor of one cotenant against another, unless the latter is claiming adverse title to the land. (p. 282).

Error to Circuit Court, Cabell County.

Action of unlawful entry and detainer by Green Smith against the New Huntington General Hospital. Judgment for defendant on a directed verdict, writ of error denied by circuit court, and plaintiff brings error.

Affirmed.

Simms & Stoker, for plaintiff in error. CJias. E. Hogg, for defendant in error.

Williams, Judge:

Green Smith, the plaintiff, and his wife, Lydia Smith, are joint owners of a lot of ground 60x200 feet in the city of Huntington on which they erected a hospital building. After the completion of the building, in Decembmer, 1917, Mrs. Smith conducted a hospital therein. But on account of a nervous breakdown, and being advised by her physician not to continue the management of the hospital, she leased it on the 16th of February, 1918, to the New Huntington General Hospital, a corporation, for a term of five months at a rental of $150 per month, and placed the lessee in possession, without her husband's consent or knowledge, and while he was temporarily away from home. About two weeks thereafter her husband returned home and she informed him she had leased the property for five months but did not show him the lease contract, which was in writing and contained a provision giving the lessee the option to renew the lease for an additional period of five years on the same terms, upon giving written notice thereof before the expiration of the term. Plaintiff and his wife both say he was displeased and dissatisfied about the lease when she informed him of it, but, rather than get into litigation over it, he at first concluded to allow the lessee to remain in possession until the expiration of the term, but that as soon as he learned of the option to extend the lease, and before the end of the term, he brought this action of unlawful entry and detainer to recover the possession. The lessee is not in default, the rental has been paid to Mrs. Smith. The facts are not controverted. Mrs. Smith who was a witness for her husband admits she had no authority to act as his agent, nor does the lease agreement purport to be made on his behalf or by his permission. On the contrary, the writing contains his name as a joint lessor and a seal opposite the blank space intended for his signature. But he never signed or ratified it.

Defendant offered no evidence and at the conclusion of plaintiff's evidence moved the court to exclude it and direct a verdict in its favor, which motion the court sustained. The verdict was returned accordingly and the court of common pleas entered judgment thereon. Plaintiff applied to the circuit court for a writ of error which was denied, and from that judgment of the circuit court he prosecutes this writ of error.

The lots were conveyed to plaintiff and his wife jointly, thereby constituting them joint tenants. §18, Ch. 71, Code. Mrs. Smith's undivided moiety is her separate estate, which the statute, §3, Ch. 66, Code, authorizes her to ...