Sommers v. Bennett
| Decision Date | 15 November 1910 |
| Citation | 69 S.E. 690,68 W.Va. 157 |
| Parties | SOMMERS et al. v. BENNETT et al. |
| Court | West Virginia Supreme Court |
Submitted March 30, 1910.
Syllabus by the Court.
A case in which the rules and principles announced in Gapen v Gapen, 41 W.Va. 422, 23 S.E. 579; Cecil v Clark, 44 W.Va. 659, 30 S.E. 216; Parker v Brast, 45 W.Va. 399, 32 S.E. 269; Justice v Lawson, 46 W.Va. 163, 33 S.E. 102; Cochran v. Cochran, 55 W.Va. 178, 46 S.E. 924; Reed v. Bachman, 61 W.Va. 452, 57 S.E. 769, 123 Am. St. Rep. 996; and Russell v. Tennant, 63 W.Va. 623, 60 S.E. 609, 129 Am. St. Rep. 1024, governing where title to land is claimed by one co-tenant against another, or by a trustee of an express trust against his cestui que trust, by reason of his purchase of the land at a tax sale, and of outstanding or conflicting titles thereto, and by occupation, improvements, and the taking and appropriating to his exclusive use of the rents, issues and profits, are properly applicable.
In a suit by one co-tenant against another co-tenant of land acquired and held for sale and profit, for an accounting of the proceeds of sales made, and of rents, issues and profits, the statute of limitations begins to run from the time plaintiff had right to demand payment.
Where land so held has been leased for oil and gas purposes by a co-tenant or trustee, without the consent of the other co-tenant or the cestui que trust, but such lease is subsequently ratified in a suit for an accounting of rents and profits, the accounting should include all money received by the lessor, co-tenant or trustee for such lease, by way of bonus money, or commutation money, and from royalty oils and gas rentals, or otherwise, accruing under such lease.
Appeal from Circuit Court, Marion County.
Bill by Martha M. Sommers and others against William G. Bennett and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.
Linn & Hamilton, for appellants.
W. Mollohan and Louis Bennett, for appellees.
Plaintiffs, as heirs of Gideon D. Camden, deceased, seek by their bill to establish their right and title to one fourth of the residue of four several tracts of land, originally, in 1844, patented to one John Walden, but the legal title to which, for several years prior to his death, had been acquired by Jonathan M. Bennett, and since then held by his heirs and devisees; and also for an accounting by said defendants of the rents and profits, and of the proceeds of the sales of various parts thereof, and for general relief.
By contract between Walden and Camden of August 4, 1843, it is recited that Walden had furnished Camden treasury warrant No. 15,097, calling for nine thousand nine hundred and ninety acres, and that it was understood that said warrant, and any other warrants Walden might thereafter furnish Camden, should be located upon such lands as Camden might deem most advisable. The contract also authorized Camden to contract with such persons as he might think proper, to survey and carry the lands into grant in such number of tracts as he might consider most advisable, stipulating, however, that for the expenses of surveying and patenting such lands such persons should be entitled to one moiety thereof, Walden to make quit-claim deeds to them therefor. Said contract also stipulated that for Camden's services Walden should convey to him, by quit-claim deed, an equal one half of the other moiety of said lands, with the provision that such moiety should be subject to the costs of the land warrants, which should be paid Walden out of the first sales made.
By deed of May 27, 1873, Walden conveyed to said Bennett a three fourths undivided interest in said lands, for the money consideration recited therein, and in consideration of a contract of August 10, 1843, being the contract made with Bennett by Camden pursuant to his contract with Walden, for surveying and patenting said lands, whereby Bennett became invested with the legal title, not only to the moiety provided for in said contract, but also to the one half of the other moiety which had been held by Walden for himself and Camden.
One of said tracts, a tract of 1800 acres in Gilmer County, except 181 acres thereof, which by contract in 1869, had been sold to and by deed of Walden, Bennett and Camden of June 20, 1873, had been conveyed to one Vannoy, was for the years 1871 and 1873, returned delinquent, in the name of Walden, was sold in 1875 for the taxes of those years as a tract of 1619 acres, purchased by Bennett and by deed of December 11, 1876, was conveyed to him by the clerk of the county court of Gilmer County. This land, however, except a reservation of the oil and gas in 145 acres thereof, conveyed by the executors of J. M. Bennett to Ruth Hinzman, May 2, 1895, had all been disposed of prior to the institution of this suit, but the facts recited and other facts in relation thereto are relied upon by both sides as evidential facts on the subject of the present controversy.
Of said tracts a tract of 500 acres and one of 1,000 acres on Spring Fork of Yellow Creek in Calhoun County, after being assessed in the names of Bennett and Walden were allowed to be returned delinquent for non-payment of taxes for the year 1874, and in 1875 were sold by the sheriff, and purchased by the state, and in proceedings by the commissioner of school lands of that county the same were, November 7, 1877, decreed to be sold, and October 22, 1878, were sold, and at which sale Bennett became the purchaser, and, April 7, 1880, obtained a deed therefor from the commissioner of school lands. The title thus acquired to these tracts has remained in Bennett, his heirs and devisees, except such portions thereof as were subsequently sold and conveyed by Camden and Bennett, or by Bennett, or his heirs and devisees. But there were conflicting titles to portions thereof, and some small tracts contracted by Bennett or Bennett and Camden though held in possession by the purchasers had not been paid for. Since the death of Bennett, conflicting titles have been settled or compromised, and some of the tracts sold have been recovered, the purchasers either surrendering the same or releasing and reconveying the land to the heirs and devisees of Bennett; so that at the time of the institution of this suit there had become invested in them by devise and by re-purchase of tracts sold and settlement and purchase of conflicting titles, an aggregate of about 700 acres; this is the land in which plaintiffs claim a one fourth undivided interest.
That Bennett knew of and recognized Camden's interest in the land at all times there is no room for doubt. The same contract of Aug. 4, 1843, that authorized Camden to make the contract with Bennett of Aug. 10, 1843, provided for Camden's one fourth interest in said lands. Their deeds and contracts relating to the land, and letters written by Bennett to Camden all attest mutual knowledge and understanding of their respective rights and interests and good faith in respecting them. Besides, the record shows that on August 26, 1876, Walden, residing in Virginia, and who had become financially embarrassed, executed a deed of trust to one Gray, for the benefit of his creditors, which was recorded in Lewis, Gilmer and Calhoun counties; whereby among other lands he conveyed to Gray as trustee such right as he had in the lands in controversy, and in which he declared the equitable title to the one fourth undivided interest held by him to belong to said Camden, the legal title remaining in him only to await a settlement of the accounts between him and Camden. The record shows that in a suit of Lewis, and others, creditors v. Walden, and others, in Lewis county, the commissioner, to whom the cause was referred, reported in 1896, some $3,744.41 due Camden's estate, and $1,031.93 due Walden on account of the sales of land made, with some 1100 acres still remaining unsold. This report, it seems, has never been acted upon however.
Bennett died in 1887, Camden in 1891. The twain, the record shows had been great friends for many years. Many of their transactions relating to these lands, prior to the death of Bennett, are covered by deeds and contracts of Walden and Camden, and of Bennett and Camden acting jointly. But, with one or two exceptions, after Bennett obtained the deed from the commissioner of school lands in 1880, deeds were made by Bennett individually. But subsequent to the date of this deed Bennett recognized the rights of Camden in these lands, not only by letters written to Camden, but a notable instance thereof is in answers prepared by him as attorney for himself and Camden and filed in a suit of Zumbro & Smith v. Jeffreys, et als. His answer to the original bill was filed in 1885, and the joint answer of himself and Camden to an amended bill was filed in 1886. In his answers to the original bill Bennett admits that he purchased these lands at the tax sale, subject to any claim or demand the said Walden had thereto; and in a letter to Camden, May 2, 1886, Bennett advises him of the filing of said joint answers. In January, 1877, Bennett in reply to a letter from him on the subject, wrote Camden respecting the taxes on the Walden lands, corrected a wrong impression which he seems to have had as to which of the Walden tracts it was that Bennett had purchased for taxes, and said: "I understand you to desire that one fourth of the Walden land should be returned delinquent." November 4, 1875, Bennett wrote Camden, "I bought in the Walden lands for taxes at the last sales, whereby I can secure to you, your interest." In February 3, 1877, he wrote Camden, among other things: ...
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