Yancey v. Radford

• Decision Date: 06 March 1890
• Citation: 86 Va. 638,10 S.E. 972
• Parties: Yancey v. Radford.
• Court: Virginia Supreme Court

10 S.E. 972

(86 Va. 638)

Yancey

v.Radford.

Supreme Court of Appeals of Virginia.

March 6, 1890.

Deed—Effect—Estoppel.

1. The heirs of an estate partitioned the land by deeds. The deed to one of the heirs and her husband read: "The parties of the first part do grant, relinquish, and release unto the said parties of the second part, and to the heirs of the female party of the second part, " etc. The deed contained no warranty. Similar deeds were given to the other heirs, no other consideration passed. The wife died, having had no children. Held, that the deed in question operated only as a partition, and conveyed no estate to the husband which ha could assert, as against the wife's heirs.

2. Nor was there any estoppel growing out of the deed to preclude the heirs of the wife from asserting their claim against the husband.

Lewis, P., and Hinton, J., dissenting.

J. A. Walker and R. O. H. Kean, for appellant.

Hansbrough & Hansbrough, W. R. Staples, and Phlegan & Johnson, for appellee.

Lacy, J. This is an appeal from a decree of the circuit court of Pulaski county, rendered at the October term, 1887. Dr. John B. Radford and Elizabeth C., his wife, of Montgomery county, Virginia, were the owners of valuable real estate. They had four children: Nannie R., the wife of G. C. Wharton; Elizabeth, who married R. H. Adams; Mary McC, who married the appellant, William T. Yancey, Jr.;and a son, J.L. Radford. In 1869 Dr. Radford and wife executed a writing, not under seal, by which the said Wharton and wife were put in possession of a part of their real estate. In 1871 the said Yancey and wife, by leave of Dr. Radford, moved upon and took posession of the northern one-half or part of the farm called Rock-ford, and Adams and wife did the same as to the southern part of the said Rockford farm, and a partition line was subsequently run between the two parcels. Dr. Radford having died in 1877, a creditors' suit was instituted to subject his real estate to the payment of his debts. In 1879 an agreement was entered into between Mrs. Radford, Dr. Radford's widow, and the said heirs, and the husbands of such as were married, providing for sales from the respective shares of parties named above, and of J. L. Radford, in such way as to make all the shares equal, and to pay all the debts. And the shares of each of the daughters should be conveyed to them and their husbands, remainder to the heirs of the wife, etc., and the share of the said J. L. Radford to be conveyed to him. In execution of this agreement, the northern part of the said Rockford farm was conveyed by the said widow, and other heirs than Yancey and wife, to the said Yancey and wife, which set forth that "for divers good and valuable considerations, to them moving and by them received, and for the further consideration of one dollar to them in hand paid, the said parties of the first part do grant, relinquish, and release unto the said parties of the second part, and to the heirs of the female party of the second part, all that certain tract or parcel of land, part of the estate known as Rockford, lying in the county of Pulaski and the state of Virginia, on the southwest side of New river, containing two hundred and forty-two acres, and bounded as follows, viz.;" without warranty or other covenants added. Similar deeds were made to the other parties. Mrs. Yancey died without having had any children, her husband living. The heirs of Mrs. Yancey brought this suit to partition the Yancey part of Rockford farm. The circuit court, by the decree complained of and appealed from here, decided that William F Yancey was entitled to one-half of the land in question for life, remainder to the complainants, and that the complainants were entitled to the other half in fee-simple, and directed an account of one-half of the rents and profits since Mrs. Yancey's death. From this decree the said W. F. Yancey appealed, and on the hearing the appellees assign error, under rule 9 of this court, as against them, —that is, the land allotted to Yancey and wife is claimed by the appellant to be his absolute property under the above-recited deed; while, on the other hand, the appellees claim that the property in question was the real estate of the wife, descended from her father, and that she having died childless, no child having been born of her marriage, the husband was not entitled to curtesy in her land, and took nothing under the said deed.

The deed in question operated a partition of the said lands of Dr. John B. Rad ford, and conveyed no estate to the appellant. The land involved in this dispute, the northern part of the Rockford farm, was the share of Mrs. Yancey in the lands inherited by her and the other...