Stalnaker v. Stalnaker, 10564

• Decision Date: 30 March 1954
• Docket Number: No. 10564,10564
• Citation: 80 S.E.2d 878,139 W.Va. 658
• Court: West Virginia Supreme Court
• Parties: STALNAKER, v. STALNAKER.

Page 878

80 S.E.2d 878

139 W.Va. 658

STALNAKER, v. STALNAKER.

No. 10564.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1954.

Decided March 30, 1954.

Syllabus by the Court.

1. 'In a suit to partition land, all known claimants to any part thereof, or interest therein, or at the time suit is instituted, or whose interests are made to appear at any stage of the cause, are necessary parties.' Pt. 1, syl. Lambert v. Peters, 120 W.Va. 741 .

2. 'A decree of partition rendered in a suit in which all the persons in interest were not parties is null and void.' Pt. 4, syl. Oneal v. Stimson, 6u W.Va. 551 .

3. 'A sale of real estate in a partition suit cannot be decreed, unless it affirmatively appears in the record that partition cannot be conveniently made and that the interests of the parties entitled to such real estate will be promoted by a sale thereof.' Pt. 1, syl. Herold v. Craig, 59 W.Va. 353 .

Joseph J. Madden, Elkins, for appellant.

Robert E. Maxwell, Elkins, for appellee.

LOVINS, Judge.

This suit instituted in the Circuit Court of Randolph County, West Virginia, by Commodore Perry Stalnaker, J., hereinafter designated as plaintiff, against Virginia Stalnaker, herein referred to as defendant, is for the purpose of partitioning certain real estate located in that county.

The record is somewhat meager. By a stipulation, counsel for the plaintiff and the defendant designated the following to be included in the transcript of the record by the Clerk of the Circuit Court of Randolph County: bill of complaint; plea in bar of the defendant; the decrees of March 21, 1952, July 18, 1952, August 28, 1952; decrees of August 29, 1952 and December 29, 1952; bill in the nature of a bill of review filed by plaintiff; answer of defendant; exhibit deed and replication of plaintiff.

From the record printed in accordance with such designation, it is shown in the plaintiff's bill of complaint that his father was seized and possessed of Lots Numbered 43 and 44 of Block 2, in the town of Coalton, Roaring Creek District, Randolph County, West Virginia; that his father died intestate, leaving his widow, Agnes Stalnaker, and as his heirs at law, Michael Stalnaker, Mary Lantz, Elizabeth Stalnaker, Virginia Stalnaker, Gertrude Miles and the plaintiff. The bill of complaint further alleges that the widow, Agnes Stalnaker, is deceased, leaving the other named persons as her sole heirs at law.

The heirs of Commodore Perry Stalnaker, on the 15th day of February, 1950, conveyed the real estate above mentioned to Virginia Stalnaker, single, by deed bearing date the 15th day of February, 1950. Virginia Stalnaker, by deed bearing date the 6th day of June, 1951, conveyed a one-half undivided interest in the real estate to plaintiff.

The real estate consists of two lots above mentioned, on which is situate a house and other improvements, and according to the allegations in the bill of complaint, is not susceptible of partition 'among the parties hereto', and it is therefore alleged in the bill of complaint that the real estate should be sold and the proceeds divided among the parties according to their respective rights. The bill of complaint avers that the interest of the persons entitled to the real estate will be promoted by a sale thereof.

Plaintiff alleged that he is the owner of a one-half undivided interest in such real estate, and prays that the Court find that the real estate is not susceptible of partition and that the same be sold and the proceeds divided among the parties according to their respective interest.

The defendant filed a paper called a plea in bar in which she states that she does not own a one-half undivided interest in the real estate, and that on the 20th day of August, 1951, she had sold all of her interest in the real estate to Elizabeth T. Stalnaker and had conveyed the same to her by deed bearing that date, executed and delivered on the 21st day of August, 1951. By a decree made March 21, 1952, the Circuit Court of Pandolph County sustained the 'plea in bar', gave plaintiff leave to make Elizabeth T. Stalnaker a party to the suit and remanded the cause to rules for that purpose.

Some question, not shown by the record, seems to have been raised as to the right of plaintiff to amend his bill of complaint, and on motion of defendant, the ruling of the court was certified to this Court. This Court, on or about the 25th day of June, 1952, refused to docket the question so raised. The plaintiff then filed a pleading entitled 'bill in the nature of a bill of review', in which the proceedings hereinabove stated were restated, and which alleged that the former decree of the trial court was erroneous for the reason that the plaintiff in this suit was only required to look to the records in the office of the Clerk of the County Court of Randolph County, to determine the proper owners of record of the real estate which is the subject of this suit.

It is further alleged in the last mentioned bill that the defendant failed to show by evidence the execution, delivery and recordation of the deed to Elizabeth T. Stalnaker. Plaintiff prayed that the decree entered on March 21, 1952, be reviewed and set aside, and that the Court decree that Elizabeth T. Stalnaker is not a necessary party.

The trial court, by a decree entered on the 14th day of July, 1952, permitted the filing of a 'bill in the nature of a bill of review', granted the defendant leave to file an answer to the bill in the nature of a bill of review and set the cause for hearing for August 28, 1952.

The answer of defendant alleges that Commodore Perry Stalnaker, deceased, left surviving his widow, Agnes Stalnaker, and the following children as heirs at law: Joseph Stalnaker, Henry Stalnaker, Frances Stalnaker, Eugene Stalnaker, Michael Stalnaker, Mary Lantz, Gertrude Miles, Elizabeth Stalnaker, the plaintiff herein and the defendant. A comparison discloses that the allegation of plaintiff's original bill of complaint, as to the number and names of heirs of Commodore Perry Stalnaker, deceased, is at variance, in that particular, with the answer filed by the defendant; Joseph Stalnaker, Henry Stalnaker, Frances Stalnaker, Eugene Stalnaker being omitted from the allegations of plaintiff's original bill.

Defendant alleges that nine of the children and heirs at law, including the plaintiff, conveyed the two lots in question to her and in trust for the heirs of Commodore Perry Stalnaker, deceased, except Elizabeth T. Stalnaker; that it was agreed by all of the said children and heirs, including plaintiff, that the title in said real estate should vest in said defendant, so long as she remains single, and that upon her marriage, the title in said real estate was to vest in equal shares in nine of the heirs at law of Commodore Perry Stalnaker, deceased.

It would seem that Elizabeth T. Stalnaker was omitted from the reversionary provisions of the agreement. The defendant avers that the plaintiff herein entered into such agreement, that he knew at the time the deed was executed to the defendant, that she was a trustee for the heirs of Commodore Perry Stalnaker, excluding Elizabeth T. Stalnaker. Defendant further alleges that counsel for the plaintiff in the instant suit had full and complete knowledge of the verbal trust agreement.

Defendant alleges in her answer that the plaintiff, notwithstanding the above arrangement set forth, has harassed, coerced and, in fact, forced her to convey to such plaintiff an interest in such real estate, and that the defendant signed and acknowledged the deed without knowing the extent of the interest in said real estate, which the deed executed by her to the plaintiff purported to convey. Defendant also alleges that she had no power to make a valid conveyance to the plaintiff of any interest in the two lots in excess of a one-ninth interest, and that she only intended to convey such interest to the plaintiff, and therefore, she does not own a one-half undivided interest in said real estate.

She further answers that she and five of the heirs at law of Commodore Perry Stalnaker, deceased, executed and delivered to Elizabeth T. Stalnaker, a deed bearing date August 20, 1951, that it was signed and acknowledged by some of the grantors in such deed on August 21, 1951, and by the other grantors on August 22, 1951; that such deed was dated, signed, acknowledged and delivered prior to the institution of this suit. But whether such deed has been recorded, defendant is not advised.

It is alleged that the plaintiff knew of the conveyance made by defendant. Such deed is filed as an exhibit and contains in the caption thereon the names of all of the heirs of Commodore Perry Stalnaker and their spouses. Nine of such heirs and the spouses of those who are married are named as grantors and Elizabeth T. Stalnaker is named as grantee. That deed however is signed by six of the heirs at law of Commodore Perry Stalnaker and the spouses of five of said heirs, as well as by the defendant. Blank spaces appear for the other heirs and their spouses who have not signed the deed.

The answer was filed by a decree entered August 28, 1952, to which answer the plaintiff replied generally in writing.

On this state of the record, the trial court, in the absence of any proof, decreed that the two lots described in the bill of complaint could not be conveniently allotted in kind to the parties of this suit who now own the one-half undivided interest in same, because of the 'physical natural situation of said real estate'. It is further decreed that the two lots be sold; that the court costs be paid out of the proceeds of the sale; and that the residue of said proceeds be divided among the parties to this suit as their interest may appear. The decree also set forth the terms and place of sale and appointed counsel of plaintiff to serve as Special Commissioner.

The assignments of error are somewhat diffuse. We think they may be...