Opinion
08-26-1901
WESCOAT v. WILSON et al.
William M. Clevenger and Mark R. Sooy, for complainant. Godfrey & Godfrey and D. J. Pancoast, for defendants Somers L. Doughty and Edward M. Sweeney. Thompson & Cole, for defendants John R. Wilson, Isabella L. Thompson, Joseph Thompson, John Showell, and Jeremiah Showell.
Suit for partition by Lavinia Wescoat against John R. Wilson and others. Suit dismissed.
In 1874 there was a tract of land in Atlantic City, Atlantic county, in this state, consisting of 95 acres, the title to which had been in Ryan Adams and Joshua D. Showell as tenants in common. By force of certain conveyances, upon the death of Ryan Adams the title of a one-half interest in this tract came to his wife, Judith, for life, with remainder to his son Joshua Adams, his daughter, Lavinia Showell (nee Adams), his grandson John, child of his deceased son John, and his grandson Daniel, son of his deceased son Daniel Ryan Adams. Thus, in 1874, Joshua D. Showell held a one-half interest in the tract, and Ryan Adams' son Joshua a one-eighth interest, his daughter, Lavinia, who was the wife of Joshua D. Showell, a one-eighth interest, his grandson John a one-eighth interest, and his grandson Daniel a one-eighth interest. At the term of Atlanticcounty orphans' court held September, 1874, Joshua Adams presented a petition for a partition of the said tract among himself, Lavinia Showell, and John and Daniel Adams. Commissioners were appointed, who made a report setting off four parcels of the said tract to each of the said four persons. Joshua D. Showell was not made a party to this proceeding. There was no part of the tract set off to him in the report, and a large portion was left unmentioned, lying to the east of a line, which line I have no doubt was intended to divide the whole tract into two parts of equal value. This line ran north and south. The part of the entire tract lying west of this line was set off into four lots, marked upon the map of the commissioners as lots "A," "B," "C," and "D." Lot A was set off to Lavinia, the wife of Joshua D. Showell. It lay along the whole length of the division line already mentioned, between it and another line drawn parallel with it. The other three lots set off were all to the west between successive lines drawn across the tract from north to south parallel with the main division line. The complainant now seeks to have a partition of that portion of the land unmentioned in the former partition proceedings. The claim is by the grantees of Lavinia under a deed made to them by Lavinia, dated May 7, 1894, after the death of her husband in September, 1893. Lavinia died July 13th, after making this deed of May 7, 1894. Lavinia originally had, as I have already observed, a one-eighth interest in the entire tract. If her interest in the easterly half of the tract was unaffected by the partition of 1874, she would still have had a one-eighth, and her grantees, of course, have her one-eighth interest in the locus in quo. They claim, however, that they are entitled to a one-half interest, the remaining three-eighth interest having become vested in Lavinia by certain quitclaim deeds executed in 1887. The history of these quitclaim deeds is as follows: in 1887, Frank 11. Walton bargained with Joshua D. Showell for the purchase of a lot of Joshua D. Showell which was located on that portion of the original tract unmentioned in the report of the commissioners. Walton's attorney, while searching the title, discovered the fact that Showell had not been made a party to the partition proceedings of 1874, and that this part had not been set off to him in the report, Before passing the title, he insisted that the interest of the other tenants in common should be quitclaimed. This was done by quitclaim deeds from those tenants to whom lots A, B, and C had been set off, they together owning a three-eighth interest. The deed was made to Joshua D. Showell and his wife, Lavinia. Joshua D. Showell and Lavinia Showell then owned the entire title, she having already a one-eighth and he a half interest. The quitclaim deeds conveyed the remaining three-eighth interest and they together were entitled to the entire interest in the tract sold to Walton. At the time these quitclaim deeds were given to Joshua D. and Lavinia, cross deeds were made to the quitclaimers by Joshua D. Showell and his wife of all interest which they might have in lots B, C, and D. The quitclaim deeds were dated November 2, 1887. The interest of Joshua D. Showell was passed under his will to his sons John and Jeremiah. John sold his interest to John R. Wilson, defendant, and Jeremiah sold his interest to Sweeney and Doughty, defendants. The complainants claim an undivided half interest as owners of Lavinia Showell's interest in the tract east of the division line already mentioned. Under these conditions the defendants, in their answer, deny that the complainants have any title to the locus in quo: (1) Because of a possession in them and their predecessors in title for 20 years; (2) because the complainants are equitably estopped from claiming any interest in this tract by reason of their acquiescence in the result of the partition of 1874; and (3) that the effect of the quitclaim deeds heretofore mentioned stripped the present complainants of all title in the locus in quo.
William M. Clevenger and Mark R. Sooy, for complainant. Godfrey & Godfrey and D. J. Pancoast, for defendants Somers L. Doughty and Edward M. Sweeney. Thompson & Cole, for defendants John R. Wilson, Isabella L. Thompson, Joseph Thompson, John Showell, and Jeremiah Showell.
REED, V. C. (after stating the facts). The single equitable defense set up is that the complainants are equitably estopped from insisting that they have any interest in the land which they ask to be partitioned. The other defenses interposed are purely legal. The equitable defense is that, by reason of the conduct of those who owned the land, a part of which is sought to be partitioned, the complainants are precluded from asserting that Joshua D. Showell, at the time of his death, did not own the locus in quo by a title in severalty. The existence of the partition proceedings taken in 1874 and 1875 is relied upon to give color to this conduct. It is undoubtedly true that those proceedings in themselves did not affect the interest of Joshua D. Showell. He was not named in the application for the partition, nor in the report of the commissioners, nor in the order of the court. Nor is it clear that the publication of the statutory notice came to his knowledge, so as to apprise him of the land which the applicants desire to have partitioned. The error of those who initiated the partition proceedings consisted in a failure to set out that the Ryan heirs each owned a one-eighth interest in the entire tract. In the application the land to be partitioned was mentioned as Ryan's, he in fact having owned only a one-half interest; and it was stated that each of the Ryan heirs had a one-fourth interest, as in fact they had in the Ryan one-halfinterest. It did not appear on the face of the partition proceedings what the real interest of the Ryan heirs was in the property. The commissioners, however, proceeded to set off to each of the Ryan heirs a portion in severalty. They first divided the entire tract into two portions for the purpose of giving Joshua D. Showell one half of it in severalty, and the other half was regarded as belonging entirely to the Ryan heirs. They then proceeded to divide the last portion into four tracts. One of each was assigned to each of the Ryan heirs. Inasmuch as Joshua D. Showell was not bound by the result of the judicial proceeding, so for want of mutuality the Ryan heirs were not estopped from asserting their former interest in the. land. Although, as already remarked, this proceeding was ineffectual to affect Joshua D. Showell's interest in the land, nevertheless it, by subsequent recognition by all the parties, became the equivalent of a parol partition. From 1875 to 1887 there seems to have been no question raised as to the character of the title held by each of the Ryan heirs and by Joshua D. Showell by force of this proceeding. It was assumed that each held in severalty. There was no actual occupancy by the respective parties of the respective portion by metes and bounds, for the land was of a character not calling for personal occupancy. The assertion of an ownership in severalty, however, was manifested by conveyances made by Joshua D. Showell in conjunction with his wife, Lavinia, one of the Ryan heirs, and by two of the other Ryan heirs. Joshua D. Showell and Lavinia, on January 28, 1878, conveyed a part of the tract set off to Joshua D. Showell to Benizet Irons and others, trustees of a church. This deed purported to convey and warrant a complete title to the portion so sold. Joshua Adams, one of the Ryan heirs, to whom lot D had been set off, sold this lot to Lewis Reed by a deed dated January 13, 1875. This deed refers to the partition proceedings, and purports to convey and warrant a complete title. John R. Adams, another of the Ryan heirs, on August 19, 1881, conveyed a lot, being a portion of the land set off to him, to John Ferrat He also conveyed, on April 3, 1882, another lot from the same portion to James C. Bowen, and on October 30, 1882, still another lot from the same portion to Harriet L. Noble. He conveyed the remaining portion of his part to Thomas K. Reed and Mittee Gardner on April 21, 1883. All these deeds refer to the partition proceedings, and purport to convey a complete interest in the land sold. Daniel Adams, the remaining Ryan heir, to whom lot C had been apportioned, died in about 10 months after the partition proceedings terminated, leaving as his heirs Lavinia, wife of Joshua D. Showell, and Joshua A. and John Adams. It was insisted at the hearing that these acts of the Ryan heirs were irrelevant The Ryan heirs were, however, the predecessors in title of the complainants in respect of a three-eighths interest in the land in question, alleged to arise from the quitclaim deed made in 1887. Their acts are also relevant as done through the influences of Showell's acts, and so creating an estoppel, to be presently discussed. As I have remarked, from 1875 to 1887 it was assumed by all the parties that the effect of the partition proceedings was to confer upon the Ryan heirs a title to the portion set off to them in severalty, and to leave Joshua D. Showell, in the one-half left to him, also a title in severalty. In 1887 the quitclaim deeds were executed. Joshua D. Showell and wife had entered into an agreement to sell a portion of the land left to Joshua D. Showell to Frank R. Walton. Judge Thompson, the attorney of Mr. Walton, on examining the partition proceeding, discovered that Joshua D. Showell was not a party. To set at rest any doubt in respect to Showell's title, he insisted upon quitclaim deeds from all others who might have an interest in the property in case the partition proceedings were inoperative. So, as already observed, a quitclaim deed was signed by Sarah B. Adams, widow and devisee of Joshua Adams, and by John R. Adams, quitclaiming their interest in lot A and their interest in Joshua D. Showell's half. This left the title of lot A and Joshua D. Showell's portion in Joshua D. and Lavinia. At the same time Joshua D. and Lavinia made deeds quitclaiming their interest in lots B, C, and D to Sarah Adams and John R. Adams in one deed. At the same time they also quitclaimed their interest in lots B and D to Thomas K. Reed, he then being their owner. These quitclaim deeds were signed, manifestly, not because the parties to them had supposed, or even then thought, that they had any interest to release. Joshua D. Showell and Lavinia, when asked to make the quitclaim deeds, insisted, says Judge Thompson, that the Ryan heirs had no interest in the land which they had agreed to sell to Walton. All the parties signed the quitclaim deeds as an act of civility, which would set at rest any doubt as to Joshua D. Showell's title, and enable him to sell his land, while not affecting any interest which they had suspected themselves to possess. Indeed, the execution of these deeds was in itself confirmatory of the partition which had been made and assented to. After the execution of these quitclaim deeds, the only question left was in respect to the quality of the ownership to lot A, which had been set off to Lavinia, and the one-half left to Joshua D. Showell. The insistence by both husband and wife, when the quitclaim deeds were made, that no one other than themselves had an interest in the portion proposed to be sold, involved the proposition that Lavinia held lot A, and Joshua D. his portion, in severalty. If the interest of the other Ryan heirs in this land had been discharged, it must have been by operation of the partitionproceeding; and the assertion of the husband and wife must have been based upon their so understanding the effect of that proceeding. If, however, that proceeding was operative to shift the undivided interest which the other Ryan heirs had held in the Showell portion to a several title to each portion set off, it followed that it also shifted Lavinia's interest to a several title in lot A. Every act of the husband and wife which recognized the ownership in severalty of any of the Ryan heirs asserted the same ownership of Lavinia to lot A, and so left Joshua D. the owner in severalty of the remainder. But, treating these recognitions of the binding quality of the partition proceeding as equivalent to a parol partition, nevertheless they would not change the undivided interest in the entire tract into interests in severalty in the apportioned tract. A parol partition encounters the provisions of the statute of frauds. It was so held in the case of Woodhull v. Longstreet, 18 N. J. Law, 405, followed by Lloyd v. Conover, 25 N. J. Law, 47, and Richman v. Baldwin, 21 N. J. Law, 395-405. Nor will mere possession by each cotenant of the part set off to him short of 20 years establish a parol partition. It was, however, admitted in Richman v. Baldwin, supra, that co-tenants may be estopped by their acts from asserting that there was no partition, although there is no technical estoppel by record, or any written conveyance. The question of estoppel in pais in connection with a parol partition received an exhaustive discussion in the federal circuit court of appeals in the case of Berry v. Seawall, 13 C. C. A. 101, 65 Fed. 742. In that case one of the co-tenants conveyed the portion set off to her in severalty by a deed with general warranty title. Another branch of the co-tenants sold nearly all of their portion with covenant of general warranty. Judge Taft, speaking of the co-tenant who set up the invalidity of this partition (admittedly unprovable by the statute of frauds), said that she had shown by her conduct that she did not intend to claim any interest in the share of land assigned in the partition to her co-tenants; and she made this representation irrevocable by taking to her exclusive benefit the grant assigned to her, and selling it in its entirety to another. Relying on her consent to the partition, and her active participation in appropriating its fruit, her co-tenants made themselves liable under covenants of general warranty to their grantors, and for 13 years there was nothing said or done to disturb the confidence her co-tenants had justly reposed in the covenancy of the partition. The court held that the question of estoppel should have been left to the jury upon these facts. In that case it is true that possession was taken by the co-tenants of the assigned parts. In this case there is no proof of such possession, but the assertion of a right in severalty and to the right of an exclusive possession against all co-tenants could not have been stronger than by the deeds executed by them. Said Mr. Justice Depue in Foulke v. Bond, 41 N. J. Law, 527-540: "The conveyance by one tenant of the estate in entirety is decisive of his purpose to appropriate the entire estate to his own use, especially if his deed contained covenants of warranty and seisin." These deeds, however, were not merely the assertion of exclusive possession, not mere recognition of the potency of the partition proceeding, but their execution created an estoppel in pais. The estoppel arises upon the principle stated by Judge Taft that the assertion of ownership in severalty induced the other co-tenants to bind themselves by a general warranty of a title in severalty in themselves. After the execution of the quitclaim deed by which all the interest in lot A and in Joshua D. Showell's portion was lodged in Joshua D. and Lavinia, the former asserted a title in severalty to his portion. On February 18, 1892, he made in his own name a lease to the Atlantic City Railroad Company granting them a right of way over his land. On December 3, 1892, he made a lease to Winfield Lauermaster. In this lease an option was given to the lessee to purchase the land leased. Lavinia joined in executing neither of these papers. The evidence is undenied that during the later years of Joshua's life his business affairs, on account of his invalidism, were administered by Lavinia. Without doubt these papers were executed not only with her knowledge and consent, but through her active negotiation. Now, it is to be observed that the only reason why Lavinia was not estopped by the partition proceeding to which she was a party is because he was not estopped, and so the estoppels were not mutual'. It may be that he, by his recognition of the validity of this proceeding, supplied that mutuality. But, regardless of this view, she, by encouraging and countenancing his contract to make a sale of a portion of the property, estopped herself from setting up that he had not the title which he thus bound himself to convey. Reciprocally her husband had no interest in lot A, which she held in severalty. Her heirs so treated this lot, and after her death had it partitioned as property held by Lavinia in severalty by force of the partition proceeding of 1874 and 1875. Nor do I think the estoppel fails because of the coverture of Lavinia. The general rule undoubtedly is that a married woman can estop herself in pais in respect of a matter about which she can contract. Husbands and wives, coparceners at common law, who agreed to a partition which was fair, were bound by the apportionment, and so were their heirs. This was held to be so because a married woman was compellable at common law to make partition. Freem. Co-Ten. § 412. Upon this ground, in Berry v. Seawall, supra, it was held that a married woman could preclude herself from questioning a parol partition by conduct amounting to anestoppel in pais. I am constrained to the conclusion, therefore, that the bill should be dismissed for the reasons stated.