Waldron v Harvey

Citation54 W.Va. 608
PartiesWaldron v Harvey
Decision Date09 February 1901
CourtSupreme Court of West Virginia
1. Partition Bill Sale.

Upon a bill purely and only for partition of land in kind between parceners, asking no sale for costs, or other cause, there can be no sale for costs, and a decree of sale is void, not simply erroneous. A sale and conveyance under it confer no title, (p. 612).

2. Pleadings Decree.

Where there is no pleading to warrant a decree, or part of a decree, the decree, or such part of it, is not merely voidable, but void, as it is not on a matter in issue, (p. 613).

3. Pleadings Decree.

Where the subject matter and purpose and nature of a suit are such as not to warrant a given decree, but the decree Is foreign thereto, it is null and void. (p. 614).

4. Bill Decree.

A prayer for general relief will authorize a decree upon ina' ter of the bill, though such decree is not asked by a prayer for specific relief; but not unless the matter of the bill warrants the decree in law. (p. 614).

5. Court Jurisdiction Decree.

While a court of equity having jurisdiction for one purpose may go on and give full relief as to all matters comprehended under the allegations of fact in the pleadings, yet it is limited in its relief to the allegations of the bill or other pleading, and can not decree beyond their scope, (p. 614).

6. Final Decree.

After a final decree at one term giving the full relief warranted by the facts stated in the bill, the case is ended and out of court, and the court has no further jurisdiction of the subject matter or parties, and all orders and decrees at a later term are null and void. (p. 615).

7. Married Woman Separate Estate.

A decree selling in fee land of a married woman not separate estate, for debt made during coverture, is wholly void, and passes no title. A decree selling in fee the separate estate land of a marrie-d woman for a debt made during corerture and before chapter 3, Acts 1893, Code 1899, chapter 66, section 15, is wholly void and passes no title, (p. 615).

8. Decree Error.

A decree which is void, not merely erroneous, may be attacked directly by appeal or bill of review, or by collateral attack, (p. 616).

9. Partition Suit Creditor.

In a suit purely for partition of land, unless a sale and distribution of its proceeds are sought, a trustee and creditor in a deed of trust are not necessary parties, (p. 616).

10. Married Woman Separate Estate.

A married woman cannot lose her land, separate or not separate estate, by estoppel by conduct {in pais) without actual fraud, if even by it. (p. 616).

11. Land Title.

One cannot lose vested title to land by oral admission that it is the property of another, (p. 617).

12. Laches Separate Estate.

Laches cannot be imputed to a married woman to defeat her suit for land not her separate estate, (p. 617).

13. Laches.

Laches will not defeat a suit for land when the edverse claimant is not in actual possession, (p. 617).

14. Laches Statute of Limiltations.

Where one is vested with legal title to land laches will not defeat a suit for it when the right is yet not barred by the statute of limitations applicable to it. (p. 617).

15. Married Woman Separate Estate.

Adverse possession of a married woman's land not her separate estate, beginning during coverture and continuing for the term of the statute of limitations, will bar the wife s and husband's right during coverture; but though the right during coverture is barred, the wife or those claiming under her has five years after the coverture ends to sue foi the land. (p. 618).

16. Married Woman Constructive Possession.

Waldron has actual possession of a tract of her land, and Nighbert has actual possession of a tract of his land. a part of Waldron's land is sold under a decree roid, not merely voidable, and is purchased by Nighbert. The part sold adjoins the land of Nighbert, and also the remaining land of Waldron. Neither ever has actual possession witnin the part so sold. By law tne constructive actual possession of Waldron over the part sold commencing before the void sale continues after it, and Nighbert has no constructive actual possession of the part sold so as to be adverse to Waldron and bar Waldron's title by limitation, (p. 618).

17. Judicial Sale Title.

A deed for land to a purchaser under a judicial sale, though the decree is without jurisdiction and void, is color of title for adverse possession, and actual possession under it is adverse to the owner of the land. (p. 619).

18. Adverse Possession.

Possession by a purchaser under a judicial sale not wholly void is adverse to the owner, (p. 619).

19. Delinquent Land Sale.

Passing the state title to forfeited land to another claimant, under the Constitution, article 13, section 3. (p. 6i9).

20. Judicial Sale Adverse Possession.

Payment of taxes by purchaser under a void judicial sale enures to the benefit of the former owner, so as to save his title from forfeiture for failure to enter it upon the tax books in his name. (p. 619).

21. Jurisdiction Equity Title.

Equity has jurisdiction to remove cloud over title to land by vacating a void judicial sale and a deed under it, the former owner being in actual possession, (p. 620).

22. Bona Fide Purchaser Jurisdiction.

A purchaser of land from a purchaser under a decree void for want of jurisdiction is not a bona fide purchaser without notice. He is bound to know the want of jurisdiction and defect of title apparent in documents under which he derives title, (p. 612).

Appeal from Circuit Court, Mingo County. Bill by Hester A. Waldron against Thomas H. Harvey and others. Decree for defendants, and plaintiff appeals.


John W. English and Robert H. Hoyle, for appellant. John B. Wilkinson and Thos. H. Harvey, for appellees.

Brannon, Judge:

George W. Clark died in 1861 owning a large tract of land in Logan county. In 1885, M. H. Waldron and Hester A. Waldron his wife filed a bill against Luemnia Clark and others in the circuit court of Logan county, stating in it the death and seisin of Clark, that he left a widow, Luemma Clark, and three children, Hester A., John B. and Jane Clark; that Hester A. Clark had married M. H. Waldron, and Jane had married

-Waller, and died leaving one child, George R. Waller.

The bill prayed that the widow's dower be assigned and the land divided between the three heirs. The bill contained the common prayer for general relief. A decree was made at April term, 1886, assigning the widow's dower, and assigning to Hester A. Waldron,-John B. Clark and George R. Waller each a separate parcel of the land, and requiring each heir to pay a third of the costs, and retiring the case from the docket. U. S. Buskirk gave a notice to the parties to the suit saying that he was the beneficiary of the several parties entitled to costs in the case, and that he would at the October term, 1886, move the court to reinstate the case on the court docket. At that term an order was entered reciting that as at the April term, 188(5, the cause was dropped from the docket without any provision for payment of costs, "on motion of the plaintiff this cause is ordered to be reinstated upon the docket of this Court, that an adjudication and proper process may be had for the costs herein." At the same term another decree was made reciting that the former decree had required Hester A. Waldron, J. B. Cla^k and George R. Waller to pay the costs equally, and fixing the amount of costs and decreeing that unless said parties should pay the costs and interest, a special commisioner should sell sufficient of the land which had been set apart to said heirs to pay the costs chargeable to them, respectively. Under this decree 99 acres of the tract which had been allotted to Hester A. Waldron was sold, and purchased by J. A. Nighbert, and the sale confirmed by decree. Nighbert's right passed to Thomas H. Harvey, S. S. Altizer, Nicie Nighbert and G. F. Miller. By deed of trust, 17th September, 1883, M. H. Waldron and Hester A. Waldron, his wife, and John B. Clark conveyed to William Stratton as trustee to secure a debt to James A. Nighbert all their interest then undivided in the land descended to them from George W. Clark. In a suit to enforce liens against John B. Clark a decree was made to sell John B. Clark's tract allotted to him, and in this suit the said trustee and Nighbert were parties, and under the decree the tract of John B. Clark was sold and bought by Nighbert by decree, That suit was brought and the sale under it made before the sale to Nighbert of the ninety nine acres out of Hester Waldron's land. The Jonh B Clark land bought by Nighbert adjoins said ninety nine acres. When Nighbert purchased the John B. Clark land he at once took posession of it, and yet has such possession; but his possession actual includes no part of the ninety nine acres. Before George W. Clark's death he allotted a. portion to Hester A. Waldron, and she and her husband took actual possession of it, built a house upon it, and have ever since been in actual possession, and the part assigned to her in the partition included this improvement, and ever since such partition they have continued such possession. The ninety nine acres sold from her is part of the tract assigned her, and adjoins the remainder of her tract; but she has never had actual possession within the ninety nine acres, if we can give it a boundary. The said ninety nine acres seems to have no definite boundary. The decree under which it was sold prescribes no definite boundary, simply tells the commissioner to sell a sufficient amount of land to pay the debt. The said ninety nine acres was, for taxation, deducted from Hester A. Waldron's tract, and ever since Nighbert's purchase of it the ninety nine acres lias been taxed to Nighbert and those claiming under him, and not to Hester Waldron. The sale to Nighbert of the John B. Clark land paid the deed of trust, but it was not actually released until after the sale of the ninety...

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