Opinion
03-21-1825
Wiseley v. Findlay and Others. [*]
Wickham, for the appellant. Johnson, for the appellees.
This was an appeal from the Chancery Court of Wythe. The case was this:
James Findlay died, leaving a widow and nine children, two of whom were married women. By his will he devises to his wife, " the plantation I now live on, and all moveable property," as long as she lived, or until his youngest child came to age. Wiseley purchased of four of the sons " all their right, title, interest or claim," in and to the tract of land in question; and the deeds proceed to say, " and which he has devised to his wife during her life." He afterwards purchased the shares of the two married daughters, who united with their husbands in conveyances of their interests. In these deeds, the estate of the wife is truly recited to be, " during her life, or until his youngest son comes of age."
Wiseley filed his bill against Mary the widow, and all the children, alledging that the youngest son had already come of age: that the said Mary still continued to occupy the said land, and was daily committing waste on it: that he had frequently applied to the other heirs of the said James Findlay, for a partition, and requested the said Mary to give up the possession thereof; but that they had rejected these propositions. He therefore prayed that a fair division of the estate might be decreed: that the shares of the four sons might be allotted to the complainant: that an account might be taken of the rents and profits of the land, since the youngest son arrived at the age of 21, and of the waste committed, and the said Mary be compelled to pay it: that she might be compelled to surrender up the possession of the said land, and injoined from committing further waste, & c.
Mary Findlay, the widow, answered, that she was entitled, on a fair construction of the will, to a life estate in the land, and that the deeds to the complainant were void, as being contrary to the law against pretensed titles.
The children answered, that it was their understanding that their mother had a life estate under the will of their father; and insisted on the terms of the deeds to Wiseley, to shew that it was so understood by all parties. The sons, who had assigned their portions to Wiseley, assert that they believed that their mother was entitled to a life estate; and that they sold their shares for less, on that account.
The Chancellor decreed, that the bill, so far as it sought to disturb the possession of the defendant Mary, the widow, should be dismissed, without costs: that commissioners should be appointed to divide the land in question, into nine shares of equal value, and allot the same among the nine children of James Findlay, deceased, or their representatives or assigns, and make report, & c.
From this decree, the complainant obtained an appeal to this Court.
Wickham, for the appellant.
Johnson, for the appellees.
Judge Carr. Judge Green. Judges Coalter and Cabell, concurred. The Judges delivered their opinions. [*]
OPINION
JUDGE CARR:[*]
The plaintiff's cause has a bad aspect. I am very much inclined to believe, that he has purchased from the children of Findlay, their interests in the land, under the idea that the old lady had a life estate, when he knew that she had not; and is now availing himself of his legal title, to turn her out, and thus break up the family understanding and arrangement. Having this impression of the plaintiff's conduct, I have examined this case with every disposition to find some ground, on which I could feel authorised to defeat his object; and I thought I had found it, in the discretion which equity exercises, on many occasions. It struck me, during the argument, that this was of that class of cases, where the application is to the sound discretion of the Court, and not ex debito justitiae; especially as there was a writ of partition under the statute. The first authority I found, seemed to encourage this idea. It is the case of Cartwright v. PulteneyAtk. 380, where Lord Hardwicke says, " Where a bill is brought for partition, a party must shew himself entitled; and this is stricter than at law, where seisin is sufficient. Here the reason is, because conveyances are directed, and not a partition only; which makes it discretionary in this Court, whether, where a plaintiff has a legal title, they will grant partition or not; and where there are suspicious circumstances in the plaintiff's title, the Court will leave him to law." This looked very much like placing the subject on the ground of specific execution. But on looking more deeply into the subject, I find that the law is differently settled by many cases. There is no act of Parliament in England, or statute in this country, which gives equity jurisdiction in this case. It has been assumed in partition, as well as in dower, from the extreme inconvenience and difficulty of proceeding at law. Agar v. Fairfax, 17 Ves. 551. In exercising this jurisdiction, the Courts have considered themselves bound by the principles, which govern cases of partition at law; and accordingly, wherever a party shews a legal title, they consider him entitled, as of right, to a partition. In Parker v. Gerrard, Ambl. 236, Sir Thomas Clark held, that a bill for a partition was matter of right; and though the interest of one party was so inconsiderable, that he would rather have given it up than incur the expense of the suit, he was compelled to make partition, and pay an equal share of the costs. The Master of the Rolls laments the injustice the Court is frequently obliged to commit, having no discretion on the subject. In Turner v. Morgan, 8 Ves. 143, the bill was for partition of a house. Lord Eldon, considering that it would be very injurious to the party defendant, who owned a third of the house, proposed a compromise. But when that failed, he said, " it cannot be denied, that a partition is due now, under the statute, to divide this species of inheritance; and I know no rule, but by considering a commission as due, in a case where the writ would lie." In Baring v. Nash, 1 Ves. & B. 550, the Vice Chancellor, speaking of the right which the part owner of an estate, however minute his interest, would have to compel a partition at law, says, " Then how does it stand upon principle? Courts of Equity have a concurrent jurisdiction with Courts of Law, upon partition, more convenient where the interest is much divided. With that concurrent jurisdiction, is a Court of Equity to adopt the principle which prevails at law, or to act upon a different principle?" (After some further observations, he repeats the remark of Lord Eldon, in Turner v. Morgan, that he knew of no rule, but to grant a commission where the writ would lie; and adds,) " certainly referring to the rule of law, by analogy to which, the conduct of a Court of Equity should be regulated; these authorities establishing the principle, that a rule of this kind, involving the right of an individual, should be the same in both Courts; and therefore tenant for years, if he would be entitled to partition at law, ought to have it in equity." He then proceeds thus; " the only authority that appears to consider the bill for partition, as matter, not of right, but of discretion, is a passage in Cartwright v. Pulteney," (the case I first quoted.) After repeating Lord Hardwicke's remark, he says, " this must be taken with the context. It is stated to be discretionary, where there are suspicious circumstances in the plaintiff's title; as in that case, a suspicion of forgery. Where the legal title is under such suspicious circumstances, a Court of Equity may well pause in directing partition. But if the title is clear, a partition is matter of right; and it is expressly stated in Parker v. Gerrard, that there is no instance of not succeeding in such a bill, but where there is not proof of title in the plaintiff; and in the case of Lord Bath, the Court gave leave and time for the plaintiff to make out his title." These authorities compel me to consider it settled law, that where a plaintiff comes into equity for partition, shewing a clear legal title, it is matter of right and not of discretion.
Let us enquire, then, into the plaintiff's legal title. The deeds made by the four sons, state that they had sold to the plaintiff, for the sum of $ 300 each, all their right, title, interest and claim, in and to a certain tract of land lying in the county of Wythe, adjoining the lands of D. Wiseley, containing 215 acres, being the same tract on which their father lived, at the time of his death, and which he devised to his wife during her life. The two deeds from the married daughters and their husbands, differ both in the words of conveyance and of description. They are more formal in the first, and more exact in the last. There can be no question about them. As to the deeds of the sons; though defective in the formal words of conveyance, I presume they are sufficient; as they clearly express that the bargainors had sold all their interest for a valuable consideration, and this was sufficient at common law to raise and use. But do these deeds sufficiently describe the land? It is, 215 acres, lying in Wythe county, adjoining the lands of the plaintiff, being the same tract on which their father lived at the time of his death; and if the description had stopped here, there can be little doubt, I presume, that it would have been sufficient, so to designate the land, as to have made the deeds valid. But in further description, they add, " and which he devised to his wife during life; " and when we come to inspect the will, we find that no land was devised to her for life; but this same tract, to her for years only. This, however, cannot, I think, render that bad which was good without it, as utile per inutile non vitiatur. It seems to me, therefore, that the deeds convey to the plaintiff, the legal title. The argument, that this recital in the deed shewed the understanding of the parties, as to the interest they were selling, may be very true, and might be very important, upon a bill filed to set aside these deeds for fraud or mistake. But when we are upon the legal title purely, I do not think it a consideration of weight; for the deeds, certainly, (if they operate at all,) convey all the right, title and interest of the bargainors, whatever that may be.
With respect to the statute against buying and selling pretensed titles, I do not think it has any application. The widow was in under the will; claiming no other estate than it gave, though mistaking that for a larger interest than it really was. Her title was not adversary to that of the sons. She had entered lawfully, held lawfully, and had done nothing, which even the other party could have elected to consider a disseisin. The sons, then, had a right to sell, the plaintiff to buy, and the deeds passed their interest.
As to the deed of the youngest son being made after the institution of the suit, I see nothing in it. The plaintiff had already a right, under the other deeds, to come for partition. As to the hardship of turning the widow out in her old age, though I disapprove of the conduct of the plaintiff, and generally of those who thus intrude themselves into these family matters; yet I cannot think the widow has been, or will be, so hardly dealt by, as the counsel seemed to think. She has had the whole land, for 24 years, without rent. She still holds the whole; and cannot be turned out until her fair dower is assigned her; to which she has an unquestionable claim.
JUDGE GREEN:
The will of James Findlay gave to his wife an estate for years only, in the land in question, determinable by her death, before the youngest child attained his age of 21 years. The freehold and inheritance descended upon the children who were seised; and the widow's holding over, after the youngest child attained his full age, did not give her a possession adversary to them, or disseise them; especially if she held over with their assent, as seems to be the fact. Entering by title under the will, she could not, after the expiration of her term, hold adversely to the reversioners, without doing some act which amounted to a disseisin, as by conveying to another. She has done no such act; but on the contrary, in her answer, she claims only under the will, a larger estate indeed than she is entitled to, but still under the will. Such a claim cannot disseise the reversioners, or give her a possession adversary to them. The children might therefore effectually convey their interests in the land, by deeds of bargain and sale.
The conveyances made by Glass and wife, and Henderson and wife, were made some time after the deeds were made by the four sons of James Findlay. These deeds state the devise to Mrs. Findlay, truly, and convey all the right, title and interest of the grantors in the land, to the appellant. No question can be raised, upon the terms of those deeds, whether they passed the whole interest of the grantors or not. The conveyances from the four sons (one of which was made after the youngest child of James Findlay came of age,) state that the grantors have sold all their right, title and interest, in the land, to the appellant; but in describing the land, they use the expression, " which he" (James Findlay) " has devised to his wife, during her life." The land, however, is otherwise sufficiently specified, by describing it as that on which James Findlay lived at the time of his death. These deeds also convey to the appellant, all the interest of the grantors in the land. The operative words of the deeds, are, that they had sold all their right, title and interest, in and to the land whereon James Findlay lived at the time of his death. The mistake in the further description of the land, or of the estate held by James Findlay's wife in the land, cannot impair this operation of the deed. Thus in the Earl of Clanrickard v. Lisle, Hob. 273, husband and wife, entitled in right of the wife, to a reversion in fee, recite in the deed that the wife had title of dower in the land, and grant all their estate in the said third part of the land. It was determined that a third part of the reversion in fee, passed by the deed. This case is stronger than the case at bar. So in Bartlett v. Wright, Cro. Eliz. 299, A. granted to B. all his house and two yard lands in C. in the possession of D. Two acres were not in the possession of D. but all the rest were. It was adjudged that the two acres, not in the possession of D. passed by the deed. In the first of these cases, the general words of the grant, all their estate, had their full effect, notwithstanding the mistake in the description of that estate, as being smaller than it really was; and in the other, the whole of the land passed by the words, " all his house and two yard lands in C." notwithstanding the mistake in describing it as in the possession of D.
The plaintiff, having a perfect legal title to a part of the land, filed his bill for a partition; and it is insisted that he is not entitled to it, in a Court of Equity, because he has been guilty of a fraud upon the children, who have conveyed their interests to him, in procuring the conveyances, such as they are, from them, acting under the mistaken belief, that their mother had a life estate in the land, and only intending to sell their reversions, subject to this life estate. In respect to the conveyances by the four sons, it appears to me, that they and the purchaser acted under a mutually mistaken opinion, as to the extent of Mrs. Findlay's estate in the land; and that they thought they were selling, and he that he was purchasing the land, subject to an estate in her for life, and this was the interest he paid for. It seems to me, that, in justice, the proportions of these children in the land, ought to belong to them, not to their mother during her life. But this is a question not fit to be decided in this case, for reasons which will be hereafter stated.
Wiseley seems to have been informed of the true effect of Findlay's will, after he took the deeds of the sons, and before he took deeds from the daughters of Findlay; and accordingly, varied the phraseology of the deeds from the latter, so as to conform truly to the terms of the will. But he seems to have encouraged the opinion on the part of the grantors, that Mrs. Findlay had a life estate, whilst he procured from them deeds which passed an immediate interest. In relation to these, too, I should doubt, whether in justice, the grantors ought not to enjoy the lands during the life-time of Mrs. Findlay, if this were a proper occasion for deciding that question. I observe, however, that the husband of one of these daughters admits that he made no reservation.
An application to a Court of Equity for partition, does not seem to be an application to the sound discretion of the Court, to be granted or refused according to the circumstances of the case, as in cases of specific performance, and other cases; but to be due ex debito justitiae. It is a remedy substituted for the difficult and perplexed remedy by writ of partition. I doubt whether a writ of partition has ever been prosecuted in Virginia. Indeed, the form of the writ has never been devised in the General Court, as the statute, authorising the writ, directs. The only indispensable requisite, to entitle the plaintiff to relief, in such cases, is, that he shall shew a clear legal title. If his title be disputed or doubtful, (as if there be a question, whether the deeds under which he claims are forged, or if his title depends on difficult and doubtful questions of law, which are emphatically proper for a Court of Law,) the decree for partition is suspended, until he establishes his title at law, not in a writ of partition, but by ejectment or other legal remedy. And if, in such proceeding, he establishes the genuineness of his title papers, or the questions of law, on which his title depends, are decided in his favor, he returns to the Court of Equity, and partition is decreed according to his established rights. These propositions are sustained by the cases cited in Wilkin v. Wilkin, 1 Johns. Ch. 111, and in Philips v. Green, 3 Johns. Ch. 302. To what end, in this case, should Wiseley be sent to law? It would only involve the parties in costs. There he must inevitably recover the portion of the land to which he has a legal title, and the rents and profits, unless the widow had a right to the possession until her dower was assigned; an undivided portion, to be sure, which he might occupy and enjoy, after the assignment of dower, (if the widow be entitled to dower,) in common with the others entitled. This would be a state of things beneficial to none of the parties concerned. What is opposed to the appellant's application for a partition? Not any right vested in the widow, who is in possession of the whole of the land; but an equitable claim on the part of some of the children, not in possession, to the temporary enjoyment of the land; and this is not clear or admitted, but depending upon an alledged mistake in making the conveyances, or fraud of the appellant. A refusal to decree partition, is a decision in favor of the widow, who has no right, in consequence of an alledged right in others; a decision in no way beneficial to those who claim this right. They have no right at law, and cannot there recover the possession by any proceeding. If they have any right, it can only be asserted in a Court of Equity, by a bill impeaching the conveyances, upon the ground of mistake or fraud. A partition will present no impediment to this remedy. So that, a refusal to decree a partition, cannot benefit those who claim an equitable right against the appellant; nor will a decree for partition prejudice their rights. A partition is asked against the widow and children, who have not conveyed their rights. They have no rights or equity, adverse to the rights of the plaintiff. Even the maxim, that he who asks equity must do equity, (if it were applicable to such a case as this,) extends only to doing equity to the same person of whom it is asked, and not to persons against whom nothing is claimed or asked. Francis's Maxims, Max. 1. The plaintiff was, therefore, entitled to a decree for partition.
It is no objection, that he acquired the legal title of two of the heirs, subsequent to the institution of the suit. He had, before the suit was instituted, acquired the legal rights of four of the heirs, which is sufficient to support his bill. If he had not acquired the rights of the other two, their portions would have been assigned to them. Having acquired their rights, pendente lite, their portions should now be assigned to him.
But the widow is entitled to dower in the land. The devise to her of the whole land for years, even if it had been expressly declared in the will, to be in lieu of her dower, would not, although she took the land under the will, have been such a jointure as could bar her right of dower, under the 11th section of the act of 1792, ch. 94. Nor can any provision made by her husband's will, in personal estate, accepted by her, bar a widow of dower in his real estate. The act of 1792, ch. 92, § 25, which declares, that unless the widow shall renounce the provision made for her by her husband's will, she shall have no more of his slaves and personal estate, than is given her by the will, is confined, in express terms, to personal property; and this was decided in Blount v. Gee, cited by Judge Tucker, in Ambler v. Norton, 4 Hen. & M. 23. Nor is the widow liable to account for the rents and profits of the lands. This appears to be a plantation belonging to the mansion house of her husband; and under the act of 1792, ch. 94, § 2, she is entitled to occupy it, without responsibility for rent, until dower is assigned to her.
The Court below ought to have pronounced a decree, assigning dower to the widow, and a partition, subject to her right of dower.
PARTITION.
I. Definition.
II. Vountary Partition.
A. Who May Make Partition.
B. How Affected.
1. At Common Law.
2. By Statute.
III. Compulsory Partition.
A. At Common Law.
B. By Statute.
C. Jurisdiction.
1. Equity.
2. County Courts.
3. Circuit Courts.
4. Lands out of State.
D. Title.
E. Adverse Possession.
1. In General.
2. Ouster.
F. By Whom Compellable.
1. Reversioners and Remaindermen.
2. Life Tenant.
3. Owner of Equity of Redemption.
4. Guardian.
5. Creditors.
6. Widow of Co-Owner.
7. Purchaser.
8. Public Property.
G. Allotment in Kind.
1. General Rule.
2. Allotment in Common.
3. Allotment to Husband of Wife's Share.
4. Allotment of Part of Estate.
5. Rights of Vendee of One Co-Owner.
6. Partition under Terms of Will.
7. Owelty.
8. Necessity for Mutual Conveyances.
H. Partition Sale.
1. When Proper.
2. Prerequisite.
3. Purchase by Co-Tenant.
4. Manner and Terms.
5. Infant's Lands.
6. Rights of Purchaser.
7. Finality of Decree.
8. Proceeds.
9. Resale.
I. Profits and Improvements.
K. Warranty.
L. Easements.
M. Property Subject to Liens.
N. Equitable Title.
O. Registry of Partition Deeds and Decrees.
P. Commissioners.
1. Appointment--Duties, etc.
2. Report.
Q. Pleading and Practice.
1. Parties.
2. Bill.
3. Motion or Petition.
4. Answer.
5. Revival of Suit.
6. Dismissal of Suit.
7. Decrees.
8. On Appeal.
9. Continuance.
10. Costs.
11. Creditors' Suits.
I. DEFINITION.
Partition is the division which is made between several persons of lands, tenements and hereditaments, or of goods and chattels which belong to them as coproprietors. The term is more technically applied to the division of real estate made between coparceners, tenants in common or joint tenants. Bouv. L. Dict. 585, 21 Am. & Eng. Enc. Law (2d Ed.) 1131.
II. VOLUNTARY PARTITION.
Partition by act of the parties or voluntary partition is the division of the property by the proprietors among themselves by mutual consent and without the interposition of judicial authority. 2 Min. Inst. (4th Ed.) 480.
The right to make partition of an undivided property by the mutual agreement of its co-owners is upheld in the early case of Jones v. Carter, 4 Hen. & M. 184; 2 Min. Inst. (4th Ed.) 480.
A. WHO MAY MAKE PARTITION.
In General.--Partition can only be made between cotenants, as there can be no partition unless each of the parties has an interest in the property. Patterson v. Martin, 33 W.Va. 494, 10 S.E. 817.
Husband of Co-Tenant. --In Brooks v. HubbleVa. Dec. 529, it was held that the husband of a cotenant could, prior to the Code of 1887, make partition of the estate with the other cotenants. In support of this proposition the court cited 1 Bac. Abr. 449; Jones v. Carter, 4 Hen. & M. 184; Bryan v. Stump, 8 Gratt. 241; 6 Lawson, Rights Rem. & Prac. § 2731. See also, Arnold v. Bunnell, 42 W.Va. 473, 26 S.E. 359; monographic note on " Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
Husband of Co-Tenant--Curtesy.--A husband entitled to curtesy in land of which his wife was coproprietor, may makes a valid partition of the land, and if such husband and his wife attempt to grant to a third party, land which has been partitioned to them, and the deed is void as to the wife, but valid as to the husband, the purchaser has a right to the possession of the land during the husband's lifetime. Arnold v. Bunnell, 42 W.Va. 473, 26 S.E. 359; Merritt v. Hughes, 36 W.Va. 356, 15 S.E. 56. See also, monographic note on " Curtesy" appended to Charles v. Charles, 8 Gratt. 486.
Husband of Co-Tenant--Rights of Husband. --In Yancey v. Radford, 86 Va. 638, 10 S.E. 972, the facts were as follows: The heirs of an ancestor made partition by deeds of his lands. The deed to one of them and her husband granted a certain portion as follows: " The parties of the first part do grant, relinquish and release unto the parties of the second part, and the heirs of the female parties of the second part, etc." The deed contained no warranty nor did other consideration pass beyond the making of similar deeds to the other liens. The wife died without issue and the husband claimed an estate in one-half of the land conveyed to his wife and himself for life. Held, the deed operated only as a partition and allotment of the wife's share in her ancestor's lands, and that it conveyed no estate to the husband as against the heirs of his wife. See also, Dooley v. Baynes, 86 Va. 644, 10 S.E. 974; monographic note on " Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
Husband of Co-Tenant--Rights of Husband.--Where, upon partition of real estate among joint tenants, the share of one of them, who is a married woman, is released to her and her husband by the other joint tenants, such release does not vest in the husband any title in the portion set apart to his wife. Sharitz v. Moyers, 99 Va. 519, 39 S.E. 166, 7 Va. Law Reg. 333.
Husband of Co-Tenant--Husband and Wife as Grantees--Habendum to Husband Only.--A father gave to his son and son-in-law a title bond in the penalty of $ 1,500, with condition to convey to them certain lands. The obligees entered into possession of the lands, and a few years thereafter the obligor died intestate, and his heirs made a deed of release or quitclaim to the land. This deed makes the wives of the son and son-in-law parties of the second part, but explicitly limits the use and benefit of the property to the son and son-in-law. A few months thereafter the son and son-in-law made partition of the land by several deeds to each other. In these deeds the wives are again made parties of the second part, but the use and benefits are limited to the son and son-in-law, respectively. Held, the wives took no interest in the land. The conveyance by the heirs was a conveyance to the son and son-in-law only, and, in conveying to them, the heirs simply did what the law would have compelled them to do. The subsequent deeds made by the son and son-in-law in which their wives united amounted to simply a partition of the property between them. Keister v. Keister, 99 Va. 541, 39 S.E. 164. See also, monographic note on " Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
Husband of Co-Tenant.--It is further held in West Virginia that a wife owning land in fee, whose husband has conveyed such estate as is vested in him as husband. cannot compel partition, while such estate continues. Merritt v. Hughes, 36 W.Va. 356, 15 S.E. 56.
Conveyance by Cotenant--Purchaser's Rights.--" A cotenant may convey at his pleasure his undivided interest in all the lands held in common, without the knowledge or consent of his companions in interest. In this case the effect of the deed is to place the grantee in the deed in the same position that the grantor had previously occupied, and no possible injury could result to the other cotenants in the tract." Worthington v. Staunton, 16 W.Va. 208, See also, monographic note on " Joint Tenants and Tenants in Common" appended to Ambler v. Wyld, Wythe 235.
B. HOW AFFECTED.
1. At Common Law. --The court, in Brooks v. HubbleVa. Dec. 529, said: " It seems well settled, that by the common law coparceners could make partition of their lands by parol, as well as by deed, and that this was the law in this state until changed by § 2413 of the Code of 1887. Jones v. Carter, 4 Hen. & M. 184; Bolling v. Teel, 76 Va. 487; Yancey v. Radford, 86 Va. 638, 10 S.E. 972; 1 Lomax Dig. 494; 2 Min. Inst. (4th Ed.) 439." See also, Arnold v. Bunnell, 42 W.Va. 473, 26 S.E. 359; Frederick v. Frederick, 31 W.Va. 566, 8 S.E. 295; Patterson v. Martin, 33 W.Va. 494, 10 S.E. 817; Justice v. Lawson, 46 W.Va. 163, 33 S.E. 102; Coles v. WoodingPatton & H. 189; Snyder v. Grandstaff, 96 Va. 473, 70 Am. St. Rep. 863, 31 S.E. 647. See also, monographic note on " Deeds" appended to Fiott v. Com., 12 Gratt. 564.
Parol Partition--When Binding.--By the common law a voluntary parol partition is binding upon the parties thereto, where it is clearly proven, and is followed by exclusive possession in severalty of the respective parcels. Jones v. Carter, 4 Hen. & M. 184; Bryan v. Stump, 8 Gratt. 241, 56 Am. Dec. 139; Colvert v. Millstead, 5 Leigh 88; Patterson v. Martin, 33 W.Va. 494, 10 S.E. 817; Hedrick v. Hern, 4 W.Va. 620; Justice v. Lawson, 46 W.Va. 163, 33 S.E. 102; Bolling v. Teel, 76 Va. 487; Coles v. WoodingPatton & H. 189.
Parol Partition--Irregularities Cured by Long Acquiescence.--Under the common law it is held that a partition, which has long been acquiesced in, and acted upon by the parties generally, ought not to be disturbed at all on the ground of irregularity only; though if unjust or illegal it may be impeached by a party who never acquiesced. Carter v. Carter, 5 Munf. 108; Coles v. WoodingPatton & H. 189. See also, monographic note on " Laches" appended to Peers v. Barnett, 12 Gratt. 410; monographic note on " Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
Parol Partition--Irregularities Cured by Long Acquiescence--Ascertainment of Terms.--Although at common law a parol partition, acquiesced in for a long time cannot be disturbed, yet a suit may be maintained to ascertain the precise terms on which it was made, and to have deeds of partition executed. Frederick v. Frederick, 31 W.Va. 566, 8 S.E. 295.
It was further held in this case that where a parol partition provided for a right of way over one of the lots, without specifying where it should be located, or the width thereof, a decree, fixing its width at four feet, and its location at the end of the lot, did not prejudice the owner of the lot. See also, Justice v. Lawson, 46 W.Va. 163, 33 S.E. 102; monographic note on " Easements" appended to Hardy v. McCullough, 23 Gratt. 251.
Parol Partition--Mistake.--Under the common law it is held that where two joint tenants of full age and laboring under no disability, make a voluntary partition of a tract of land by deed according to an old survey, of whose inaccuracy both are equally ignorant, and no fraud appearing, such partition however unequal is binding upon them and their assigns. Jones v. Carter, 4 Hen. & M. 184.
Partition by Arbitration and Award.--If a dispute concerning the division of a tract of land under a will, be submitted to arbitration in general terms; and an award be made, stating that, " from the proofs adduced to the arbitrators, from the tenor of the will, and evident intention of the testator," one of the parties is entitled to a certain number of acres, to be divided from the rest by a specified line; and the other to the residue of the tract; such award (being free from objection in other respects) is valid, notwithstanding the line established by it, is different from the dividing line mentioned in the will. Hollingsworth v. Lupton, 4 Munf. 114; Smith v. Smith, 4 95. See also, monographic note on " Arbitration and Award" appended to Bassett v. Cunningham, 9 Gratt. 684.
Contract to Partition--Construction. --In Clark v. Nunn, 25 Gratt. 287, it was held that the broad language of a contract in relation to the division of land between the joint owners, should be construed in the light of the surrounding circumstances and the previous action of the parties. See also, Parrill v. McKinley, 6 W.Va. 67; monographic note on " Contracts" appended to Enders v. The Board of Public Works, 1 Gratt. 364.
2. By Statute. --By the statutes of conveyance in Virginia and in West Virginia voluntary partition of estates of freehold or inheritance or for a term of more than five years must be by deed. 2 Min. Inst. (4th Ed.) 481; Va. Code 1887, § 2413; W.Va. Code 1899, ch. 71, § 1; Bolling v. Teel, 76 Va. 487. See also, monographic note on " Deeds" appended to Fiott v. Com., 12 Gratt. 564; monographic note on " Joint Tenants and Tenants in Common" appended to Ambler v. Wyld, Wythe 235.
Partition Deed--When Necessary by Statute.--Prof. Minor, in the 4th Edition of 2 Min. Inst. 481, 783, contrary to his view in the previous editions of this work (as cited in Bolling v. Teel, 76 Va. 487), comes to the conclusion that under the statute (Va. Code 1887, § 2413) partition of an estate of freehold or for a term exceeding five years must be by deed. See also, monographic note on " Deeds" appended to Fiott v. Com., 12 Gratt. 564. There is also a dictum in Snyder v. Grandstaff, 96 Va. 473, 31 S.E. 647, intimating that a deed is necessary in partition of freehold estate.
Partition Deed--Sufficiency.--A deed reciting that the parties thereto have made partition and division between them of the lands therein mentioned of which they were seized in fee, stipulating what part each is to have, and covenanting that neither of them, nor any person claiming under either, shall disturb the other in the possession and enjoyment of the part allotted to him is a good deed of partition, although it contains no clause of conveyance. Townsend v. Outten, 95 Va. 536, 28 S.E. 958. See also, monographic note on " Deeds" appended to Fiott v. Com., 12 Gratt. 564; monographic note on " Covenants" appended to Todd v. SummersGratt. 167.
Partition Deed--Privy Examination of Wife. --In Bryan v. Stump, 8 Gratt. 241, it was held that the privy examination of the wife is unnecessary in a deed of partition by her husband, where the deed was followed by the possession in severalty for a long period of time. See also, monographic note on " Husband and Wife" appended to Cleland v. Watson, 10 Gratt. 159.
Partition Deed--Consideration.--Whether a deed, absolute on its face, which conveys an undivided interest in land is a deed of gift, or upon a secret trust agreed on between the parties, is not involved in a subsequent suit for partition between several joint tenants of land in which the interest of the grantor is assigned to the grantee, and the grantor is not precluded by such suit from asserting the trust in a subsequent suit against his grantee. Eaves v. Vial, 98 Va. 134, 34 S.E. 978. See monographic note on " Consideration" appended to Jones v. Obenchain, 10 Gratt. 259.
Partition Deed--Presumption of Equal Division.--A voluntary partition of land by consent of its joint owners, though unequal as to quantity must be considered as dividing the tract equally in point of value where there is no proof to the contrary. Syme v. Johnston, 3 Call 558.
Partition Deed--Conveyance of His Allotment by Former Co-Owner in Contemplation of Marriage.--The three devisees of a testator conveyed each to the other, by deeds of partition, all of his right, title and interest in the property allotted to such other. Afterwards one of them in contemplation of marriage conveyed his share to his intended wife, and then married her, but shortly thereafter died without issue or possibility of issue. It was held, upon these facts, that the title of survivorship of the two surviving devisees had passed by their deed to the deceased one in his lifetime, and by the deed of the latter is vested in his widow. Snyder v. Grandstaff, 96 Va. 473, 31 S.E. 647.
III. COMPULSORY PARTITION.
Compulsory partition or partition by judicial proceedings is a division made by the courts at the instance of one or more of the coproprietors, regardless of the wishes of the other coproprietors. Am. & Eng. Enc. Law (2d Ed.) 1131. See also, monographic note on " Joint Tenants and Tenants in Common" appended to Ambler v. Wyld, Wythe 235.
A. AT COMMON LAW. --It seems that under the original common law coparceners could compel partition of the common property by means of what was known as a writ of partition. It was otherwise, however, as to tenants in common and joint tenants. The law seeming to reason that since their relation was a voluntary one, it could only be dissolved by common consent. 2 Min. Inst. (4th Ed.) 480; 21 Am. & Eng. Enc. Law (2d Ed.) 1142.
B. BY STATUTE. --By the statute of 31 Hen. VIII, c. 1; 32 Hen. VIII, c. 32, the right of compulsory partition by judicial proceedings was extended to tenants in common and joint tenants. 2 Min. Inst. (4th Ed.) 482; 21 Am. & Eng. Enc. Law (2d Ed.) 1142. See also, Va. Code (1887), ch. 114; W.Va. Code (1899), ch. 79.
C. JURISDICTION.
1. Equity. --The proceeding by writ of partition at common law has been in practice almost entirely superseded by bill in equity and the jurisdiction of courts of equity to decree partition of lands is well settled. Davis v. Tebbs, 81 Va. 600; Castle man v. Veitch, 3 598; Straughan v. Wright, 4 493; Stuart v. Coalter, 4 74, 15 Am. Dec. 731; Wiseley v. Findlay, 3 361, 15 Am. Dec. 712; Otley v. McAlpineGratt. 340; 2 Min. Inst. (2d Ed.) 484; 4 Min. Inst. (3d Ed.) 1334, 1336, 1363; 1 Bar. Ch. Pr. (2d Ed.) 304; Hudson v. Putney, 14 W.Va. 561; Moore v. Harper, 27 W.Va. 362. In Wiseley v. Findlay, 3 361, it was held that the power of a court of equity to grant partition is not discretionary but ex debito justitioe, and that whenever a plaintiff has a right to partition at law he has the same right in equity. See alsoMin. Inst. (4th Ed.) 4821. By Acts 1897-98, p. 488, Sup. Va. Code, § 2562, courts of equity are expressly conferred with jurisdiction in partition cases. See monographic note on " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.
Where one of several cotenants of land has improperly obtained a patent therefor, it is necessary to invoke the aid of a court of equity to give to each his proper share. Christian v. Christians, 6 Munf. 534.
Partition Deed--Complete Relief.--When a court of equity acquires jurisdiction of a cause for any purpose, it will retain it and do complete justice between the parties, enforcing, if necessary, legal rights, and applying legal remedies to accomplish that end. This is especially true in suits for partition. Laurel Creek, etc., Co. v. Browning, 99 Va. 528, 39 S.E. 156.
Partition Deed--Liens.--A court of equity has authority to pass upon all questions necessary to do justice between the parties, in suits for partition, such as accounts of liens and priorities on the lands to be partitioned. Hinton v. Bland, 81 Va. 588.
Partition Deed--Discretion.--" 'In all cases of partition,' says Judge Story, 'a court' of equity does not act merely in a ministerial character, and in obedience to the call of the parties, who have a right to the partition; but it founds itself upon its general jurisdiction as a court of equity, and administers its relief ex aequo et bono, according to its own notions of general justice and equity between the parties. It will therefore, by its decree, adjust all equitable rights of the parties interested in the estate,' etc. 1 Story's Eq., § 656b. See also, Code 1873, ch. 120, § 1; 2 Min. Inst. (4th Ed.) 417." Hinton v. Bland, 81 Va. 588.
Partition Deed--Partition Ex Mero Motu.--In a suit for partition of land where one of the defendants, who is a husband, is entitled in his own right or as tenant for life in right of his wife to all the residue of the land, except what was decreed the complainant, and the wife dies pending suit, and her heirs who are his children are made parties defendant, it is error for the court below to undertake to determine as between the heirs who were thus made defendants, their respective rights and interests and make partition between them, wholly unasked by any of them. Cosgray v. Core, 2 W.Va. 353.
Partition Deed--Personal Property.--Since tenants in common of personal property cannot have partition at common law, it is held that a court of equity is the proper tribunal to decree a division of it. Smith v. Smith, 4 95; Fitzhugh v. Foote, 3 Call 13; 4 Min. Inst. (3d Ed.) 1463; Va. Code 1887, § 2569; W.Va. Code 1899, p. 715.
2. County Courts.
Limitation as to Value. --In Seamster v. Blackstock, 83 Va. 232S.E. 36, 5 Am. St. Rep. 262, it was held that under the Code of 1860 the county courts had no jurisdiction to decree a sale of land for partition where the interest of any party exceeded $ 300. See monographic note on " Courts" appended to Cropper v. Com.Rob. 842.
In Parker v. McCoy, 10 Gratt. 594, it was held that the statute of 1849 authorizing the sale of lands, where the interest of each joint owner in less than three hundred dollars, refers to the estimated value of each interest if the land is divided, and not the value of each interest in the estimated value of the whole.
3. Circuit Courts. --Tenants in common, joint tenants, and coparceners are compellable to make partition, under ch. 79, Code, and circuit courts have jurisdiction for that purpose. Le Sage v. Le Sage (W. Va.), 43 S.E. 137; Pillow v. Southwest, etc., Co., 92 Va. 144, 23 S.E. 32.
4. Lands out of State. --The courts of this state have no jurisdiction to decree a partition of lands lying in another state, though all the parties are before the court. Pillow v. Southwest, etc., Co., 92 Va. 144, 23 S.E. 32, 53 Am. St. Rep. 804; Poindexter v. Burwell, 82 Va. 507, (distinguishing Barger v. Buckland, 28 Gratt. 850); Wimer v. Wimer, 82 Va. 890; 4 Min. Inst. (3d Ed.) 1450; 1 Va. L. Reg. 675. See also, monographic note on " Jurisdiction" appended to Phippen v. Durham, 8 Gratt. 457.
D. TITLE. --To entitle a plaintiff to relief in equity in a partition suit it was, prior to the Code of 1849, an indispensable prerequisite that he show a clear legal title to his rights in the property as co-owner. Stuart v. Coalter, 4 74, 15 Am. Dec. 731; Straughan v. Wright, 4 493; 2 Min. Inst. (4th Ed.) 484. By the Va. Code of 1849, p. 526, however, it was provided that a court of equity may take cognizance of all questions of law affecting the legal title, that may arise in any proceeding to make partition, and since that time this power has become well established. See Va. Code 1887, § 2562 (amended by Acts 1897-8, p. 488, Sup. Va. Code § 2562.) W.Va. Code 1899, p. 714; 2 Min. Inst. (4th Ed.) 484; 4 Min. Inst (3d Ed.) 305; Davis v. Tebbs, 81 Va. 600; Currin v. Spraull, 10 Gratt. 145; Bradley v. Zehmer, 82 Va. 685; Fry v. Payne, 82 Va. 759, 1 S.E. 197; Hudson v. Putney, 14 W.Va. 561; Arnold v. Arnold, 11 W.Va. 449; Moore v. Harper, 27 W.Va. 362; Boggess v. Meredith, 16 W.Va. 1; Deem v. Phillips, 5 W.Va. 168; Pillow v. Southwest, etc., Co., 92 Va. 144, 23 S.E. 32; Bowers v. Dickinson, 30 W.Va. 709, 6 S.E. 335; Hinton v. Bland, 81 Va. 588; 1 Bar. Ch. Pr. (2d Ed.) 305.
Although a suit for partition cannot be substituted for an action of ejectment, yet if the defendant in such suit claims under one who was a joint owner with the complainant, the suit may be maintained, and all questions by law arising therein may be settled by the court under § 2562 of the Code. Pillow v. Southwest, etc., Co., 92 Va. 144, 23 S.E. 32, 53 Am. St. Rep. 804; Davis v. Settle, 43 W.Va. 17, 26 S.E. 557; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Carberry v. West Virginia, etc., Co., 44 W.Va. 260, 28 S.E. 694.
Limitation as to Value--Constitutionality. --In Pillow v. Southwest, etc., Co., 92 Va. 144, 23 S.E. 32, it is held that § 2562 of the Code of 1887, conferring upon courts of equity jurisdiction to try title in partition suits, is not in conflict with the constitutional guarantee of jury trial. See also, Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Davis v. Settle, 43 W.Va. 17, 26 S.E. 557, holding the corresponding statute in West Virginia to be constitutional. See generally, monographic note on " Constitutional Law" appended to Com. v. Adcock, 8 Gratt. 661.
E. ADVERSE POSSESSION.
1. In General. --There is an implied dictum in the case of Straughan v. Wright, 4 493, to the effect that where lands are held adversely to the plaintiff in a partition suit for twenty years, and his title is disputed, the action cannot be maintained either at law or in equity.
In West Virginia it is held that in a suit for partition under the statute, the court cannot pass on the title of a stranger claiming under a different title, adverse to the title under which the partition is to be made; nor can such stranger and his hostile title be brought into the suit and the conflict between such hostile rights settled as incident to the partition. Davis v. Settle, 43 W.Va. 17, 26 S.E. 557; Carberry v. West Virginia, etc., Co., 44 W.Va. 260, 28 S.E. 694. But the fact that one cotenant has been ousted by another in sole possession, claiming the whole under conveyance from another cotenant, will not debar a court of equity from jurisdiction in partition so long as the right of entry is not barred by the statute of limitation. Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Rust v. Rust, 17 W.Va. 901; Fry v. Payne, 82 Va. 759; Hudson v. Putney, 14 W.Va. 561; Cooey v. Porter, 22 W.Va. 120.
Limitation as to Value--Prescription.--An agreement is entered into between the heirs of a deceased party, to partition lands, which is accordingly done, and one of them enters into possession of his portion, but no deed of partition is made. Held, that a continuous actual possession for a period of twenty years, will perfect his title against the other heirs. Edwards v. Chilton, 4 W.Va. 352.
Limitation as to Value--Legal Title.--In questions purely equitable, twenty years adverse possession will bar the remedy of the plaintiff in a partition suit; but, where the court is only called upon to grant partition under a legal title, which is disputed, the proper course is to retain the cause until the title is decided at law. Straughan v. Wright, 4 493.
2. Ouster. --An actual ouster of one tenant in common cannot be presumed, except where the possession has become tortious and wrongful by the disloyal acts of the cotenant, which must be open, continued and notorious, so as to preclude all doubt of the character of his holding or the want of knowledge thereof by his cotenant. This conduct must amount to a clear, positive and continued disclaimer and disavowal of his cotenant's title, and an assertion of an adverse right; and a knowledge of this must be brought home to his cotenant. Boggess v. Meredith, 16 W.Va. 1; Caperton v. Gregory, 11 Gratt. 505.
Limitation as to Value--What Constitutes.--The intention of the tenant or parcener in possession to hold the common property in severalty and exclusively as his own, with notice or knowledge to his cotenants of such intention, constitutes the disseisin. But the notice or knowledge required must be actual, as in the case of a disavowal or disclaimer of any right in his cotenants; or the acts relied on, as in the case of expulsion, making costly improvements and exercising exclusive ownership, must be of such an open, notorious character as to be notice of themselves. Cooey v. Porter, 22 W.Va. 120.
Limitation as to Value--What Constitutes.--Where one parcener occupies the common property notoriously as the sole owner, using it exclusively, improving it and taking to his own use the rents and profits, or otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right in his coparceners, such occupation or acts and claim of sole ownership will amount to a disseisin of his coparceners, and his possession will be regarded as adverse from the time they have knowledge of such acts or occupation and claim of exclusive ownership. Cooey v. Porter, 22 W.Va. 120.
Limitation as to Value--Conveyance by Disseisor.--As the possession of one cotenant is the possession of all, laches, acquiescence, or lapse of time cannot bar the right of entry of a cotenant until notorious act of ouster brought home to his knowledge. But the making of a deed for the whole property by a cotenant to a stranger is not such act of ouster, unless actual adverse possession is taken thereunder. Parker v. Brast, 45 W.Va. 399, 32 S.E. 269.
Limitation as to Value--Possession of One.--As between coparceners and others claiming in privity, the entry into possession of one is always presumed to be in maintenance of the right of all; and this presumption will prevail in favor of all until some notorious act of ouster or adverse possession is brought home to the knowledge of the others, or it is clearly shown that he has become the owner by purchase. A clear, positive and continued disclaimer of title, and the assertion of an adverse right brought home to the knowledge of the other coparceners, are indispensable, though great lapse of time, with other circumstances, may warrant the presumption of a disseisin or ouster by one coparcener, or other joint owner. Pillow v. Southwest, etc., Imp. Co., 92 Va. 144, 23 S.E. 32; Cooey v. Porter, 22 W.Va. 120. See generally, monographic note on " Adversary Possession" appended to Nowlin v. Reynolds, 25 Gratt. 137; monographic note on " Limitations of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
F. BY WHOM COMPELLABLE.
1. Reversioners and Remaindermen. --A reversioner or remainderman cannot compel partition during the continuance of the particular estate. Seibel v. Rapp, 85 Va. 28, 6 S.E. 478; Merritt v. Hughes, 36 W.Va. 356, 15 S.E. 56. Where however, the owner of the particular estate, in his answer to the bill of one of two remaindermen, consents to the partition and waives his right to the possession of the property, a partition thereof may be decreed between the remaindermen. Bice v. Nixon, 34 W.Va. 107, 11 S.E. 1004. See also, Otley v. McAlpineGratt. 340, which is distinguished by the court in Merritt v. Hughes, 36 W.Va. 356, 15 S.E. 56, where it is said: " Virginia cases cited for the proposition that a remainderman may sustain a suit for partition do not apply. In Otley v. McAlpineGratt. 340, the tenant by curtesy sued, but he was owner of one of the shares in fee, and thus entitled to sue. In Wiseley v. Findlay, 3 361, Wiseley owned fee and there was no life interest in the way. In M'Clintic v. Manns, 4 Munf. 328, there was no life estate, only a charge of a living."
2. Life Tenant. --A tenant for life in one undivided moiety of property may maintain a suit against those who own the estate in remainder of that moiety, whether they are in esse or not, and the fee simple owners of the other moiety, and compel partition of the property; and if not susceptible of partition in kind, they may have a sale and division of the proceeds. Carneal v. Lynch, 91 Va. 114, 20 S.E. 959, 1 Va. Law Reg. 67.
3. Owner of Equity of Redemption. --The right of the owners of an equity of redemption to have partition is upheld in Martin v. Martin, 95 Va. 26, 27 S.E. 810. See also, monographic note on " Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197.
4. Guardian. --The guardian of infants may maintain a suit for partition of lands held by the infant wards and other adult parties. Zirkle v. McCue, 26 Gratt. 517; Cooper v. Hepburn, 15 Gratt. 551. See generally, monographic note on " Guardian and Ward" appended to Barnum v. Frost, 17 Gratt. 398.
Limitation as to Value--Infants.--For the proposition that partition between infants by judicial proceedings are valid and binding, see 1 Min. Inst. (4th Ed.) 515. See also, monographic note on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
5. Creditors. --The right of the creditors of a joint tenant to bring suit to compel partition, seems to have been settled judicially. 4 Va. L. Reg. 423. But is expressly provided now by statute Acts 1897-8, p. 488, Sup. Va. Code, § 2562, that " a lien creditor or (meaning of) any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor, or the rents and profits thereof, to the satisfaction of his lien." See also, 1 Bart. Ch. Pr. (2d Ed.) 305.
6. Widow of Co-Owner. --In Hull v. Hull, 26 W.Va. 1, it is held that a widow entitled to dower in the real estate of her deceased husband is neither a joint tenant, tenant in common or coparcener with the heirs at law within the meaning of the statute concerning partition, so as to authorize a court of equity to sell the legal estate of the heirs descended to them, and to have her dower assigned to her out of the proceeds, and the residue divided among the heirs and those having vendor's liens on the lands, if any one heir refuses to give his assent thereto, or if any one heir be an infant defendant, the widow being the plaintiff in the suit. See generally, monographic note on " Dower" appended to Davis v. Davis, 25 Gratt. 587.
7. Purchaser. --In Wiseley v. Findlay, 3 361, it was held that a purchaser of the rights of a coproprietor in an undivided tract of land might maintain a suit for partition of the land, and that the conveyance to him could not be impeached in that suit on the ground of fraud or mistake. See also, Davis v. Settle, 43 W.Va. 17, 26 S.E. 557; Pillow v. Southwest, etc., Imp. Co., 92 Va. 144, 23 S.E. 32; M'Clintic v. Manns, 4 Munf. 328. See generally, monographic note on " Decrees" appended to Evans v. Spurgin, 11 Gratt. 615.
8. Public Property. --In the absence of special legislation, partition cannot be made between a city and a county of public property, either by the courts, or by one of the parties against the protest of the other. Supervisors v. Alexandria, 95 Va. 469, 28 S.E. 882.
Limitation as to Value--Statute.--The title of an act of assembly entitled " an act to authorize the qualified voters of Alexandria county to vote on the question of the removal of the courthouse from Alexandria city to some point within Alexandria county" is not sufficiently broad to authorize provisions in the act for the partition or sale of the courthouse and jail properties held for the use of the county and city. Those provisions are in conflict with art. 5, § 15 of the Constitution, which provides that " no law shall embrace more than one object which shall be expressed in its title." Supervisors v. Alexandria, 95 Va. 469, 28 S.E. 882.
G. ALLOTMENT IN KIND.
1. General Rule. --By the common law and even in equity it seems to have been necessary, prior to the statute, to make the partition in kind, it beings imperative, that each tenant have some substantial part of the premises. 2 Min. Inst. (2d Ed.) 489. In Virginia and in West Virginia, however, since the statute (Va. Code 1849, p. 526) sufficient discretion is conferred on the courts to avoid such embarrassments. See Va. Code 1887, § § 2563, 2564: W.Va. Code 1899, p. 715; 2 Min. Inst. (4th Ed.) 490; Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482.
Limitation as to Value. --In Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482, 487, the court said: " Notwithstanding this statute prima facie, partition must be in kind; each parcener being allotted his several share." Custis v. Snead, 12 Gratt. 260; Cox v. McMullin, 14 Gratt. 82; Stewart v. Tennant, 52 W.Va. 559, 44 S.E. 223.
Limitation as to Value--Exception.--On the other hand, where a sale of the common property and division of the proceeds will cause the least prejudice to the interest of all concerned, and will promote justice most generally, it is error to make partition by other means. Corrothers v. Jolliffe, 32 W.Va. 562, 9 S.E. 889, 25 Am. St. Rep. 485. See also, monographic note on " Judicial Sales" appended to Walker v. Page, 21 Gratt. 636.
Limitation as to Value--Exception.--As a general rule, upon a bill for partition of land, the share of each parcener should be assigned to him in severalty. But if from the condition of the subject or the parties, it is proper to pursue a different course, the facts justifying a departure from the rule, should at least, where infants are concerned, be disclosed by the report or otherwise appear, to enable the court to judge whether or not their interests will be seriously affected. 2 Min. Inst. (4th Ed.) 489; Custis v. Snead, 12 Gratt. 260; Howery v. Helms, 20 Gratt. 1; Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482; Cox v. McMullin, 14 Gratt. 82; Beckham v. Duncan, 1 Va. Dec. 669; Zirkle v. McCue, 26 Gratt. 517; Turner v. Dawson, 80 Va. 841; Hull v. Hull, 26 W.Va. 1; Casto v. Kintzel, 27 W.Va. 750; 4 Min. Inst. (3d Ed.) 1462, 1463; Stewart v. Tennant 52 W.Va. 559, 44 S.E. 223.
Limitation as to Value--Appraisement. --In Corrothers v. Jolliffe, 32 W.Va. 562, 565, 9 S.E. 889, the court said: " If only one of the parties is willing to have the whole allotted to him, and the other parties are unwilling to take for their interests what such party is willing to pay therefor, then the court may either refer the matter to a commissioner to ascertain the fair value to be paid for said interests, or order the whole subject to be sold."
Limitation as to Value--Manner of Allotment. --In Henrie v. Johnson, 28 W.Va. 190, it was said: " The court has no right to make an arbitrary allotment. It should, so far as it can do so without injustice to others, assign each cotenant that part most valuable to him. If there are several parcels, it need not divide each parcel, but may assign one parcel to each cotenant. (Freem. on Cotenancy and Partition, § 522; Smith v. Barber, 7 Ohio 118; Hill v. Dey, 14 Wend. 204; Cox v. McMullin, 14 Gratt. 82.)"
Limitation as to Value--Conveyance of Specific Property by One Cotenant. --In Cox v. McMullin, 14 Gratt. 82, the court said: " Although a party holding in common with others can do nothing to impair or vary, in the slightest degree, the rights of his cotenants, yet if he execute a deed for a specific portion of the common subject, or make a contract in regard to it, if upon partition such portion shall fall in severalty, to the party so making the deed or contract, he will be bound by his act. McKee v. Barley, 11 Gratt. 340."
2. Allotment in Common. --In Casto v. Kintzel, 27 W.Va. 750, it was held that, the shares of two or more of the coparceners in a partition suit may, in accordance with an election by them or their guardian, be assigned and allotted to them in one parcel. See also, Custis v. Snead, 12 Gratt. 260; 4 Min. Inst. (3d Ed.) 1462; Va. Code, 1887, § 2563.
3. Allotment to Husband of Wife's Share. --Where, upon partition of real estate among joint tenants, the share of one of them, who is a married woman, is released to her and her husband by the other joint tenants, such release does not vest in the husband any title in the portion set apart to his wife. Sharitz v. Moyers, 99 Va. 519, 39 S.E. 166. See also, Bolling v. Teel, 76 Va. 487.
4. Allotment of Part of Estate. --In a suit for partition the fact that the parties owned another tract of land in another county, and that it did not appear that partition in kind of the two tracts could not be made, is not ground for setting aside the sale; the parties not wishing to sell this other tract, which was productive. Frazier v. Frazier, 26 Gratt. 500.
Allotment of Part and Sale of Part--Proceeding--Infants.--Where in a partition suit there is an allotment of part of the land and sale of the residue, the alloted part and the proceeds of the part sold must each be divided among all the cotenants of the entire subject in the absence of a consent decree, when adults only are interested, and it is error to sell the undivided interests of infants in such suit when there is no proceeding therein by their guardian for such sale in the manner prescribed therefor by law. Stewart v. Tennant, 52 W.Va. 559, 44 S.E. 223.
5. Rights of Vendee of One Co-Owner. --" A deed from a cotenant of a part of the land held in common, describing it by metes and bounds, cannot in any way operate to the prejudice of the other tenants in common; they have the right to have the land partitioned unaffected by such deed. But in partition in such case, a court of equity will allot the portion so conveyed by metes and bounds to the purchaser thereof, if it can be done without prejudice to the rights of the other cotenants. Such deed will become operative and pass to the purchaser of such lands by metes and bounds, if the other tenants in common before partition confirm and ratify it; and after partition, if that portion is allotted to the purchaser; and in either case said deed will be binding on both the grantor and grantee." Worthington v. Staunton, 16 W.Va. 208; Boggess v. Meredith, 16 W.Va. 1.
Allotment of Part and Sale of Part--Unequal Allotment.--" But if a tenant in common convey with covenant of general warranty a part of the common subject by metes and bounds, and upon partition afterwards made, a material part of the land so conveyed is allotted to other tenants in common, so that the purchaser does not obtain the substantial inducement to his contract of purchaser, upon the prayer of such purchaser a court of equity will cancel and annual such deed and place the parties in statu quo." Worthington v. Staunton, 16 W.Va. 208.
6. Partition under Terms of Will. --A testator by his will, directs that his estate shall be kept together for the support of his wife and children, until his widow shall marry, or die, or until his youngest child comes to the age of twenty years. And he directs that a certain sum shall be paid to a child who shall marry and thus cease to be supported out of the profits of the estate. The widow renounces the will. Held, this does not authorize a division of the estate, but it is to be kept together until one of the contingencies mentioned in the will occurs. Gregory v. Gate, 30 Gratt. 83.
7. Owelty. --As a general rule, in the partition of real estate each part owner is entitled to have in severalty a part equal to his interests in the whole subject, if this is practical, with a due regard to the interests of all concerned. But if such partition cannot be made without impairing the portions of some others, the property may be divided into shares of unequal values, and the inequality corrected by a charge of money on the more valuable in favor of the less valuable portion. Cox v. McMullin, 14 Gratt. 82; Howery v. Helms, 20 Gratt. 1; Jameson v. Rixey, 94 Va. 342, 26 S.E. 861; 1 Bart. Ch. Pr. (2d Ed.) 306. So in Martin v. Martin, 95 Va. 26, 27 S.E. 810, it is held that in a suit for partition, if the lands are incapable of exact or fair division, the court may compensate the party receiving the less valuable parcel by creating in his favor a charge upon the more valuable tract by way of rent, servitude, or easement. In this case the servitude consisted in the right to take water by means of a pipe or ditch from one tract for the use of the other.
Lien of Owelty--Priority. --In Jameson v. Rixey, 94 Va. 342, 26 S.E. 861, it is said: " A lien for owelty of partition partakes of the nature of the vendor's lien and constitutes a prior encumbrance upon the land on which it is charged, and follows the land into whosesoever hands it may come. The lien is not released by taking the personal obligation of another, or other security for its payment, nor is it merged by a judgment or decree therefor, but subsists until it is clearly shown to have been waived, or released, or has been satisfied. Coles v. Withers, 33 Gratt. 186; Hanna v. Wilson, 3 Gratt. 243; Knisely v. Williams, 3 Gratt. 265; Paxton v. Rich, 85 Va. 378, 383; Jones v. SherrardDev. & Bat. Law 179; Dobbin v. Rex, 106 N.C. 444; Halso v. Cole, 82 N.C. 161."
Lien of Owelty--Notice. --The lien created by owelty follows the land into the hands of all third parties, and a purchaser is charged with constructive notice of such lien in the absence of fraud or deception. Jameson v. Rixey, 94 Va. 342, 26 S.E. 861.
Lien of Owelty--Enforcement--Limitation.--Prior to the Code of 1887 there was no statutory limit to the enforcement of a vendor's lien, or a lien for owelty of partition, but the same continued until waived, released, or satisfied, or until sufficient time elapsed to raise the presumption of payment. In the case at bar the decree for partition was made prior to the adoption of the Code of 1887, and the evidence not only repels the presumption of payment, which is a mere presumption of fact, but shows that the lien has been neither waived, released nor satisfied. Jameson v. Rixey, 94 Va. 342, 26 S.E. 861. See also, Ogle v. Adams, 12 W.Va. 213.
8. Necessity for Mutual Conveyances.
At Common Law.--At common law a decree of partition of itself does not operate as a conveyance of title. But the court may order and compel the execution of mutual conveyances, by the parties if sui juris, and by a commissioner for those non sui juris. Bolling v. Teel, 76 Va. 487; Hurt v. Jones, 75 Va. 341; Christian v. Christians, 6 Munf. 534.
At Common Law.--Upon the return of the commissioners' report of the partition, if no successful objection is made thereto, the final decree confirms the report; or if a sale be found necessary, orders it to be made; in which latter case the decree is not entirely final, the cause being reserved in order that the court may superintend the sale. Supposing an allotment of shares to the several tenants to have been made and confirmed, the decree directs mutual conveyances to be executed by the parties to each other of the several lots assigned to them respectively, for the decree itself, independently of statute, confers only an equitable title. See upon this subjectMin. Inst. (4th Ed.) 493; V. C. 1873, ch. 174, § § 7, 10; V. C. 1887, ch. 176, § § 3418, 3424; 1 Stor. Eq. § § 651-'52; Whaley v. DawsonSch. & Lefr. 417-'72; Jackson v. Turner, 5 Leigh 119; Tennent v. Pattons, 6 Leigh 196; Custis v. Snead, 12 Gratt. 260; Cox v. McMullin, 14 Gratt. 82; Howery v. Helms, 20 Gratt. 1; Frazier v. Frazier, 26 Gratt. 500; Zirkle v. McCue, 26 Gratt. 517; Wilson v. Smith, 22 Gratt. 493; Bolling v. Teel, 76 Va. 487; 4 Min. Inst. (3d Ed.) 1464.
By Statute.--But now by statute in Virginia the decree confirming the partition itself operates as a conveyance of title. Va. Code (1887) § 2565; 1 Bart. Ch. Pr. (2d Ed.) 306; § 2510, Va. Code of 1887, provides that such decree shall be recorded.
H. PARTITION SALE.
1. When Proper. --In a suit for partition, the court has no authority to order a sale of the land unless it be made to appear by enquiry before a commissioner, or otherwise; that partition cannot be made in some of the other modes provided by the statute. Howery v. Helms, 20 Gratt. 1. And the reasons from such a departure from the general rule that each share should be allotted in severalty, should be set out in the commissioner's report. Custis v. Snead, 12 Gratt. 260; 1 Bar. Ch. Pr. (2d Ed.) 306.
2. Prerequisite. --It is the duty of the court, before decreeing a sale in a partition suit, to judicially determine the rights and interests of the cotenants in the land, and failure to do so is ordinarily reversible error. Childers v. Loudin, 51 W.Va. 559, 42 S.E. 637. See generally, monographic note on " Judicial Sales" appended to Walker v. Page, 21 Gratt. 636.
By Statute.--But it is not essential that the facts necessary to warrant a decree for sale should appear from the report of commissioners, or by the depositions of witnesses, it being sufficient if the facts appearing in the record reasonably warrant the decree of sale. Zirkle v. McCue, 26 Gratt. 517; Stevens v. McCormick, 90 Va. 735, 19 S.E. 742; Frazier v. Frazier, 26 Gratt. 500; 1 Bar. Ch. Pr. (2d Ed.) 310.
By Statute. --In Stevens v. McCormick, 90 Va. 735, 19 S.E. 742, it is held that an order for sale of land in partition before ascertaining the interests of the several parties, is premature and erroneous, as they are entitled to know how they stand in order that they may bid intelligently, if they desire, at the sale. Citing Horton v. Bond, 28 Gratt. 815.
3. Purchase by Cotenant.
Title.--When real estate is sold in a partition suit without a judicial ascertainment of the interests of the parties, and is purchased by the cotenant who never appeared in the cause, nor in any way aided in bringing the property to sale, and the sale is confirmed without objection, his title is protected by § 8, ch. 132 of the Code, notwithstanding the error in the decree of sale, and the cotenant parties must resort to the fund arising from the sale. Childers v. Loudin, 51 W.Va. 559, 42 S.E. 637.
4. Manner and Terms. --The manner and terms under which a sale in a partition suit is to be conducted are, it seems, matters for the court in its discretion to determine. Berry v. Irick, 22 Gratt. 614; Frazier v. Frazier, 26 Gratt. 500.
In Conrad v. Fuller, 98 Va. 16, 34 S.E. 893, it is held that the court may in its discretion order a partition sale to be made either privately or at public auction.
When Sale Would Cause Sacrifice--Burden of Proof.--Persons who have mortgaged their undivided five-sixths interest in land, if entitled to have partition before the sale under the mortgage, on the ground that a sale subject to the other one-sixth interest would result in sacrifice of the property, have the burden of proving that such would be the result of a sale without partition, as it is not the universal result. Wharton v. CampbellVa. Dec. 683.
5. Infant's Lands. --In a suit for partition, to authorize the sale, under the statute, of lands in which infants have an interest, the case must be one in which partition cannot be conveniently made, and it must appear that the interests of the parties will be promoted by a sale of the property. Zirkle v. McCue, 26 Gratt. 517. See generally, monographic note on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
When Sale Would Cause Sacrifice--Decree Binding Infants. --In Zirkle v. McCue, 26 Gratt. 517, the court said: " In this state the rule seems to be well settled, that whenever the court is asked to sell and convey an infant's inheritance, he is entitled to an opportunity of making a defense at any time within six months after he arrives at full age. The only exception to this rule is found in those proceedings in equity under the statute for the sale of small inheritances of less value than three hundred dollars. Parker v. McCoy, 10 Gratt. 594." See also, on this subject, 4 Min. Inst. (3d Ed.) 1451; monographic note on " Judicial Sales" appended to Walker v. Page, 21 Gratt. 636; monographic note on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
6. Rights of Purchaser. --Plaintiff became purchaser at a sale, under order of court, of the share of one coparcener after partition. The decree of partition was silent as to any claim against the share of such coparcener in favor of the other coparceners, and plaintiff's deed contained no reservation in their favor. Plaintiff thereafter sold to defendant certain water rights situated on the property: held, that a decree in a subsequent action, allowing the other coparceners a proportional share in such water rights, should be set aside, and defendant restrained from prosecuting an action based on such decree, for breach of covenant by plaintiff. Penn v. Chesapeake & O. Ry. Co.Va. Dec. 224.
When Sale Would Cause Sacrifice--Wife's Equity.--Upon a sale of land under a decree of a court of equity for partition, the equity of a feme covert to a settlement out of the proceeds of the sale is superior to the claims of a grantee or judgment creditor of the husband, James v. Gibbs, 1 Patton & H. 277.
7. Finality of Decree. --In a suit for partition, whether the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject or not are questions for the court in which the suit is pending to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise. Wilson v. Smith, 22 Gratt. 493; Fore v. Foster, 86 Va. 104, 9 S.E. 497; Hurt v. Jones, 75 Va. 341; Bradley v. Zehmer, 82 Va. 685; Gardner v. Stratton, 89 Va. 900, 17 S.E. 553; Colvert v. Millstead, 5 Leigh 88; Ogle v. Adams, 12 W.Va. 213; Frazier v. Frazier, 26 Gratt. 500. It is further held in Wilson v. Smith, 22 Gratt. 493, that a sale made by agreement of the parties pending a partition suit which is afterwards approved and confirmed by the court is as valid and binding as if made under a previous decree.
8. Proceeds.
When Regarded as Realty.--Where a court of equity causes land to be sold for partition, it leaves it to the party entitled to the proceeds to designate whether he will hold them as personalty or as realty. And when, for any reason, that party is incapable of making such designation, the court will hold them subject to all the incidents of realty. Turner v. Dawson, 80 Va. 841; Watson v. Conrad, 38 W.Va. 536, 18 S.E. 744; Findley v. Findley, 42 W.Va. 372, 26 S.E. 433; 2 Min. Inst. (4th Ed.) 491. As a general rule, however, such a sale of an adult's land will convert the proceeds into personalty. Findley v. Findley, 42 W.Va. 372, 26 S.E. 433.
And it is now provided by statute in Virginia (Code 1887, § 2566), that such proceeds are to be deemed personal estate from the time of the confirmation of the sale, except in cases of persons non sui juris.
When Regarded as Realty--Notice of Disposition. --In Beery v. Irick, 22 Gratt. 614, it is held that in a partition suit an order of court disposing of moneys without due notice to the parties interested in its disposition, is void, and does not transfer clear title to the purchaser of the property.
9. Resale.
When Proper. --In Finney v. Edwards, 75 Va. 44, it was held that, where a partition sale is set aside, a resale must be ordered, as the purchaser cannot be compelled to take the land at different terms from those of his former purchaser.
When Proper--Illegal Sale.--A decree confirming an illegal partition sale, the court having no knowledge of its illegality, will be set aside and a new sale ordered at the instance of the co-owners. Newcomb v. Brooks, 16 W.Va. 32.
When Proper--When Improper.--It is held in Frazier v. Frazier, 26 Gratt. 500, that neither the fact that a partition sale was made for bonds which since have become worthless, nor the fact that personal property of small value not included in the estimate was included in the sale, are sufficient grounds for setting aside the sale.
It is further held in Donahoe v. Fackler, 8 W.Va. 249, that defects or irregularities in the proceedings which are merely formal, will not warrant an order for a resale. See generally, monographic note on " Judicial Sales" appended to Walker v. Page, 21 Gratt. 636.
When Proper--Right of Purchasers.--A sale of part of a tract of land, having been made under a misconception of the rights of the parties; and the purchaser, with other plaintiffs, applying to a court of equity for partition of the land, (saying nothing of the part sold,) among themselves and the vendors, and others; to which partition they appeared entitled; and the vendors by their answer expressing a wish that, if partition should be decreed, the sale should be set aside; the court rescinded the sale, and directed partition of the whole tract. M'Clintic v. Manns. 4 Munf. 328.
When Proper--Right of Creditors.--Where partition has been made among the cotenants, it will not be disturbed at the instance of the lien creditors, unless they show that it is unequal and unfair as respects the security for their debts. Wright v. Strother, etc., 76 Va. 857.
When Proper--Election.--Where a party interested in the property, with full knowledge of all the facts, elects to affirm the sale he will be concluded by it. Howery v. Helms, 20 Gratt. 1. But if any of the parties interested elect to avoid the sale, while it has been affirmed by the other parties, the entire property, and not merely the undivided interest of those parties objecting to the sale, must be resold, and the original purchaser will be entitled to the shares of the proceeds of the resale, which would otherwise have belonged to those who elected to affirm the original sale. Howery v. Helms, 20 Gratt. 1.
When Proper--Effect.--After a resale has been ordered, the court assumes jurisdiction of the entire property. Howery v. Helms, 20 Gratt. 1.
When Proper--Erroneous Partition.--In a suit to vacate an erroneous partition of land of which the complainant is the owner in fee, it is not error to set aside deeds made by the supposed coparceners of the lands received by them in the partition where the alienees are before the court. The alienees acquired no better title than was vested in their vendors. Lockhart v. Vandyke, 97 Va. 356, 33 S.E. 613.
When Proper--Land Damages--Fee Simple Owners of Inheritance.--The fifth headnote to Hood v. Haden, 82 Va. 588, states the facts and decision as follows: Supposing R. and W. took only life estates in home place, and that their father was intestate as to the reversion, a sale thereof was decreed in order to partition it among R. and W. and another heir entitled to participate in his estate; and the R. & A. Railroad Co., having had part of the home place condemned for its purposes, the land damages were paid, or payable in court. Held, the decree of sale of said reversion was erroneous, as R. and W. were the fee-simple owners of the home place. The land damages belong to R. and W. as the owners of the fee simple.
When Proper--Dower Land.--Though there may be cases in which a court of equity would, in her lifetime, decree a division of the property assigned to the widow for dower; in a suit for partition brought during her life, in which some of the children refused to bring their advancements into hotchpot, the decree, though broad enough in its terms to exclude them from any share of the dower lands, will be restricted to their interest in the two-thirds then divided, unless the pleadings make a case for the division of the dower land. Persinger v. Simmons, 25 Gratt. 238.
When Proper--Parties Not Coming into First Partition.--The dower of a widow in the land of her husband is assigned to her; and upon bill filed the other two-thirds of the land is divided among ten of the twelve heirs; the other two refusing to bring their advancement into hotchpot. Upon the death of the widow, the heirs who refused to come into the first division may come into the division of the dower property. Persinger v. Simmons, 25 Gratt. 238.
When Proper--Ineffectual Partition. --In Nye v. Lovitt, 92 Va. 710, 24 S.E. 345, it is held that where an ineffectual partition has been made, each joint tenant is still seized of his individual share in the whole, and cannot recover more in an action of ejectment.
I. PROFITS AND IMPROVEMENTS.
Rents and Profits.--In a partition suit one cotenant, who had had the exclusive possession of the common property, or who has received rents and profits, to a share of which his cotenants are entitled, will be required to account therefor. Fry v. Payne, 82 Va. 759, 1 S.E. 197; Ward v. Ward, 40 W.Va. 611, 21 S.E. 746, 52 Am. St. Rep. 911; Rust v. Rust, 17 W.Va. 901; Anderson v. Nagle, 12 W.Va. 98; Ogle v. Adams, 12 W.Va. 213; Humphrey v. Foster, 13 Gratt. 653; Carter v. Carter, 5 Munf. 108; White v. Stuart, 76 Va. 546; Graham v. Pierce, 19 Gratt. 28; Paxton v. Gamewell, 82 Va. 706; 2 Min. Inst. (4th Ed.) 488; 1 Bart. Ch. Pr. (2d Ed.) 311; Early v. Friend, 16 Gratt. 21; Newman v. Newman, 27 Gratt. 714. But in a suit for partition of land between remaindermen and life tenant where one of the remaindermen has had exclusive possession of the land, it is improper to order an account of rents and profits, because prior to that time the life tenant has had a right to them. Bice v. Nixon, 34 W.Va. 107, 11 S.E. 1004.
Occupancy by One--Profits.--Where the nature of the property is such as to admit of its use and occupation by several, and less than his just share and proportion of the common property is used and occupied by one tenant in common in a manner which tends in no way to hinder or exclude the other tenants in common from in like manner using and occupying their just share and proportion, such tenant does not receive more than comes to his just share and proportion, in the meaning of ch. 100, § 14, of the Code, and is not accountable to his cotenants for the profits of that portion of the property used by him. Dodson v. Hays, 29 W.Va. 577S.E. 415.
Improvements.--A joint tenant who improves the common property at his own expense is entitled, in a partition suit, to compensation for the improvements, whether the cotenant assented thereto or not. But this allowance is made, not as a matter of legal right, but merely from a desire to do justice between the parties, and hence will be so estimated as to inflict no injury on the cotenant. Ballou v. Ballou, 94 Va. 350, 26 S.E. 840; Ogle v. Adams, 12 W.Va. 213; 2 Min. Inst. (4th Ed.) 488; 1 Bar. Ch. Prac. (2d Ed.) 311.
Improvements.--In a new partition of land, an allowance should be made for permanent improvements put upon the land by the party in possession under the former partition, so far as said improvements constitute an addition to the present value of the estate to be divided. Chinn v. Murray, 4 Gratt. 348; Ward v. Ward, 40 W.Va. 611, 21 S.E. 746, 52 Am. St. Rep. 911.
Improvements.--In Casto v. Kintzel, 27 W.Va. 750, it is said: " It has been frequently adjudged and the rule of law is well settled that one tenant in common cannot charge the land of his cotenant for improvements made on the common property without the consent of his cotenants; nor can a tenant for life charge either the remainderman or the estate, for improvements placed on the lands in which he holds his life estate. Thurston v. DickinsonRich. Eq. 317; Thompson v. Bostick, McMullan's Eq. R. 75; Dillet v. Wheeler, Chev. Eq. R. 213; Hancock v. Day, 1 McMullan's Eq. 69; Crest v. Jackson, 3 Watts 238; Calvert v. Aldrich, 99 Mass. 74; Taylor v. Baldwin, 10 Barb. 510."
Set-Off of Claim for Use against Claim for Improvements.--Where it is proper to allow a coparcener for improvements, a charge for use and occupation may be set off against the improvements. Ward v. Ward, 40 W.Va. 611, 21 S.E. 746, 52 Am. St. Rep. 911. See also, Ogle v. Adams, 12 W.Va. 213; 2 Min. Inst. (4th Ed.) 488; Ruffners v. Lewis, 7 Leigh 720.
Limitation to Right to Compensation for Improvements.--The right of a joint tenant to claim compensation for improvements put upon the common property at his own expense, does not arise until a suit for partition is brought, and the right to partition arises whenever the parties may choose to assert it. Statutes of limitations have no application to suits for partition, nor to the equity for compensation which arises only when the partition is asked for. But the mere fact of improving the common property by a joint tenant does not raise an implied assumpsit on the part of the cotenant to contribute to the expenses thereof, and no action therefor will lie by the tenant making the improvements. The rule is otherwise where repairs are made on the common property by one joint tenant at his sole expense. Ballou v. Ballou, 94 Va. 350, 26 S.E. 840; Ward v. Ward, 40 W.Va. 611, 21 S.E. 746, 52 Am. St. Rep. 711. See generally, monographic note on " Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
K. WARRANTY. --In Bowers v. Dickinson, 30 W.Va. 709, 6 S.E. 335, it is said: " The law will not permit one who has been a tenant in common, even after partition is made, to buy an outstanding title adverse to the common title of him and his former cotenant, and assert it against him. See Venable v. Beauchamp, 3 Dana 321. When partition has, been made by tenants in common by compulsion on suit brought for that purpose, each one of the partitioners becomes a warrantor to all others, to the extent of his share, so long as the privity of estate continues, but no longer." Citing 2 Min. Inst. 442. So a decree in partition cannot have the effect of showing title in the parties to it as against strangers to the suit and its parties. High v. Pancake, 42 W.Va. 602, 26 S.E. 536.
Limitation to Right to Compensation for Improvements--By Implication.--In partition of land a warranty is implied, because of the privity of the estate, and the parties are in aequali jure. There is supposed to be mutual confidence, by reason of the privity of estate, and, if the common fund is not so large as the parties suppose, either from defect of title, or of unsoundness as to part, the loss should be borne equally. Dingess v. Marcum, 41 W.Va. 757, 24 S.E. 624.
L. EASEMENTS.
In General.--Continuous easements upon property in use before a partition are not destroyed thereby, though they cease to have a legal existence as easements. Linkenhoker v. Graybill, 80 Va. 835; Burwell v. Hobson, 12 Gratt. 322, 65 Am. Dec. 247; Barksdale v. Parker, 87 Va. 141, 12 S.E. 344. See also, monographic note on " Easements" appended to Hardy v. McCullough, 23 Gratt. 251.
Right of Way.--In a suit for the partition of land having a right of way appurtenant thereto, the court may allow such right to all the cotenants, or it may confine the right to one or more of the allotments to the exclusion of the others. The court may also allow rights of way for one allotment over another, but no cotenant is entitled to such right of way as a matter of absolute right. Henrie v. Johnson, 28 W.Va. 190; Springer v. McIntire, 9 W.Va. 196.
Oil and Gas.--Partition of oil and gas owned by co-owners separate from the surface cannot be decreed, except by sale and division of the proceeds. A judicial partition thereof by assignment of the oil and gas under sections of the surface is void. Hall v. Vernon, 47 W.Va. 295, 34 S.E. 764, 81 Am. St. Rep. 791.
Mineral Rights.--But in Barksdale v. Parker, 87 Va. 141, 12 S.E. 344, it was held that in a suit to partition lands, the mineral rights on the whole tract might remain undivided, and the purchaser of one of the parcels acquires no interest in the mineral rights.
M. PROPERTY SUBJECT TO LIENS. --In Wright v. Strother, 76 Va. 857, where some of the cotenanthad sold their undivided interest in lands and res served liens for the unpaid purchase money, it was held that the existence of these liens on the undivided shares does not, per se, prevent a partition of the property among the owners, the liens being considered as attaching to the parcels under the partition in severalty. See generally, monographic note on " Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197.
Incumbrance upon Common Property--Discharge by One Cotenant--Contribution.--Where a cotenant discharges an incumbrance upon the common property, and pays more than his share of the purchase price, he is entitled to ratable contribution from his cotenants. But his right to contribution does not accrue until suit for partition is brought. Grove v. Grove, 100 Va. 556, 42 S.E. 312.
Land Subject to Liens--Apportionment of Debt.--In a suit to enforce a vendor's lien reserved on land which has been partitioned amongst the heirs of the vendee, it is not error to apportion the lien ratably amongst such heirs, and decree a sale of their respective shares, where it appears that the share of each heir is amply good for his proportion of the lien, and the creditor is amply protected by other reservations in the decree in his favor, and is not unreasonably delayed in the collection of his debt. Max Meadows L. & I. Co. v. McGavock, 96 Va. 131, 30 S.E. 460; 4 Min. Inst. (3d Ed.) 1463.
Lien on Share of One Cotenant Continues after Division.--An incumbrance upon the undivided share of one of the co-owners, will continue a lien upon his share when set apart to him in severalty. 1 Bar. Ch. Pr. (2d Ed.) 307; Stevens v. McCormick, 90 Va. 735, 19 S.E. 742; Martin v. Martin, 95 Va. 26, 27 S.E. 810; Boggess v. Meredith, 16 W.Va. 1.
Incumbrance upon Share of Any Party--Statute.--" Under the direct provision of Code, ch. 114, courts of equity have jurisdiction of suits for partition, and have power, where there are liens, by judgment or otherwise, on the interest of any party, to apply the dividends of such party in the proceeds of sale to the discharge of such lien." Grove v. Grove, 100 Va. 556, 42 S.E. 312.
N. EQUITABLE TITLE. --In Christian v. Christians, 6 Munf. 534, it was held that in decreeing a partition in favor of a plaintiff claiming by equitable title, it is error for the court to direct that the holders of a legal title stand seized of the plaintiff's part to his use, but that it should have ordered them to convey the same by deed to him and his heirs.
O. REGISTRY OF PARTITION DEEDS AND DECREES. --The statutes of registry in Virginia and West Virginia require the recordation of all deeds or decrees partitioning lands. See 4 Min. Inst. (3d Ed.) 56, 65. See generally, monographic note on " Recording Acts."
P. COMMISSIONERS.
1. Appointment--Duties, etc. --The number of commissioners appointed is usually five, with power to any three of them to act. They are directed to be sworn before acting, and their report to the court should show that they were so sworn. Their report must, of course, be in writing, and ought to describe the partition which they have made, by metes and bonds, with precision. 4 Min. Inst. (3d Ed.) 1464.
Duties.--" Commissioners when once they are appointed, no matter by whom nominated, are commissioners for all the parties, and owe to them and the court the duty of fairness and impartiality." Per Holt, J., in Ransom v. High, 37 W.Va. 838, 17 S.E. 413. See also, Custis v. Snead, 12 Gratt. 260.
Commissioner's Fees.--In the case of Cabell v. Cabell, 4 Hen. & M. 436, the commissioners who divided land under order of court were each allowed five dollars per diem for their services as such. See also monographic note on " Commissioners in Chancery" appended to Whitehead v. Whitehead, 23 Gratt. 376.
Notice to Parties.--Commissioners to make partition of lands are not required to give notice to the parties interested, though they usually do so. The parties have their day in court when the report of commissioners is returned to the court. McClanahan v. Hockman, 96 Va. 392, 31 S.E. 516.
Discretion as to Allotment.--The allotment of their respective shares to the parties entitled, after a division as equal as possible has been made, may be determined directly by the commissioners; or they may resort to the lot which latter is usually preferred. 2 Min. Insts. (4th Ed.) 492; 2 Bar. Ch. Pr. 1336 (2d Ed.); 4 Min. Inst. (3d Ed.) 1464.
Liabilities. --In Omohundro v. Omohundro, 27 Gratt. 824, it was held that a commissioner in a suit for partition was liable for receiving confederate money in payment of bonds given by the purchaser of lands sold by the commissioner, on the ground that the commissioner had no authority to collect the bonds.
Liabilities.--Where commissioners appointed to make a sale of land under a decree in a partition suit collect the purchase money without authority from the purchaser but fail to remit it to the distributees, it is held that the purchaser is bound to pay it again, but may look to the commissioners for reimbursement. Donahue v. Fackler, 21 W.Va. 124.
Commissioner Himself Purchaser.--When the commissioner appointed by a decree in a partition suit to sell the land, becomes himself the purchaser, the purchase is voidable at the election of any party interested in the land sold. And the law is the same where the purchase is made nominally by a third person, who is reported by the commissioner to the court as the purchaser, but who really purchased for the commissioner and conveyed the land to him accordingly, after the purchase as reported had been confirmed. Howery v. Helms, 20 Gratt. 1.
2. Report.
Preliminary to Partition.--It is the duty of the court through its commissioners, to ascertain what estate exists, before proceeding to make a partition of the same, or confirming such partition. Dingess v. Marcum, 41 W.Va. 757, 24 S.E. 624. See also, Howery v. Helms, 20 Gratt. 1.
Presumption of Correctness.--It is not necessary for the report of commissioners to make partition of lands to affix a money value to the lands divided, or any part of them. In the absence of evidence to the contrary, the court will presume that the report of such commissioners is true and correct. McClanahan v. Hockman, 96 Va. 392, 31 S.E. 516.
Finality.--The report of commissioners in a partition suit is not final and may be set aside by the court. But when the court is asked to quash or set aside the report, on the ground that the commissioners erred in making their allotments, whereby an unequal partition has been made, it will not do so except in extreme cases--cases in which the partition is based on wrong principles, or it is shown by a very clear and decided preponderance of evidence, that the commissioners have made a grossly unequal allotment. Henrie v. Johnson, 28 W.Va. 190. See also, Dingess v. Marcum, 41 W.Va. 757, 24 S.E. 624; Ransom v. High, 37 W.Va. 838, 17 S.E. 413; Ogle v. Adams, 12 W.Va. 213.
Confirmation of.--Upon the return of the commissioners' report, showing how the land has been allotted to the parties in severalty, if there is no successful objection made thereto, a final decree is made confirming the report; or if a sale be found necessary, ordering it to be made; in which latter case the decree is not entirely final, the cause being reserved in order that the court may superintend the sale. Supposing an allotment of shares to the several tenants to have been made and confirmed, the decree, independently of statute, directs mutual conveyances to be executed by the parties to each other, of the several lots assigned to them respectively. 2 Min. Inst. (4th Ed.) 493.
Confirmation of--When Improperly Confirmed.--Where an interlocutory decree in a partition suit directed the commissioners to divide the land equally between the co-owners, and instead they assigned one-fifth to one of them and left the residue undivided, it was held that the commissioners had violated their duty and it was error to confirm their report. Custis v. Snead, 12 Gratt. 260.
Exceptions to.--An exception for lack of parties to the report of commissioners to make partition is not well taken when the record fails to disclose the interests of such parties. McClanahan v. Hockman, 96 Va. 392, 31 S.E. 516.
Exceptions to.--In Martin v. Martin, 95, Va. 26, 27 S.E. 810, it is held that an exception to report of commissioners to divide lands in a partition, on the ground that the division is unequal as to quality and quantity, but which fails to point out the inequality, and which is not supported by proof, should be overruled. See also, Ransom v. High, 37 W.Va. 838, 17 S.E. 413,
Mistake in.--Where commissioners appointed to make partition by mistake allotted a share to the husband instead of the wife, and, the court confined the report, no conveyances being made, it was held that the husband acquired no title. Bolling v. Teel, 76 Va. 487.
Q. PLEADING AND PRACTICE.
1. Parties.
Lien Creditors.--In a partition suit between the heirs of an ancestor, the lien creditors of such ancestor are not necessary parties, since their interests can in no way be affected by the partition. Martin v. Martin, 95 Va. 26, 27 S.E. 810; Stevens v. McCormick, 90 Va. 735, 19 S.E. 742; 1 Bar. Ch. Pr. (2d Ed.) 214. But in the later case of Conrad v. Fuller, 98 Va. 16, 34 S.E. 893, it was held that both the trustee and beneficiary in a deed of trust on real estate of a decedent are necessary parties to a suit for a sale and partition of such real estate, and that it is error to decree a sale thereof until they are made parties. The opinion in this case though apparently conflicting with the proposition laid down in Martin v. Martin (supra ) is in realty clearly distinguished therefrom. In the latter case there was no sale--the land being partitioned in kind. --while in Conrad v. Fuller, the very object of the suit was to sell the land, in order to pay off the decedent's debts and wind up his estate. The case of Conrad v. Fuller does conflict, however, with that of Stevens v. McCormick (supra ).
Lien Creditors--West Virginia Rule.--In West Virginia, however, the above distinction is not made and judgment creditors and other incumbrancers are not necessary parties to a bill for partition, even where a sale of the premises is decreed, unless they be creditors of a deceased person who was a tenant or coparcener. In other cases it is proper to sell the land subject to the liens. Childers v. Loudin, 51 W.Va. 559, 42 S.E. 637.
Widow.--If the widow of a person who died seized of lands of which partition is sought, is alive and entitled to dower, she should be a party to the suit, and her dower should be assigned to her and partition made of the residue. It is error to proceed in her absence, and make partition of the lands subject to her right of dower. Custis v. Snead, 12 Gratt. 260; 1 Bar. Ch. Pr. (2d Ed.) 215. See generally, monographic note on " Dower" appended to Davis v. Davis, 25 Gratt. 587.
Widow.--But if a testator devise to his widow " her living" upon a tract of land, during her life; and the same land to one of his sons in fee simple; a bill in equity lies, for partition of the land among the heirs of that son, in the widow's lifetime, and without making her party; --for the decree will be made, " subject to her rights." M'Clintic v. Manns, 4 Munf. 328; 1 Bar. Ch. Pl. 2d Eng. 215.
Husband.--Where one of the children who had refused to come into the first division of her father's estate died, after the death of her mother, leaving children, it was held that her husband is a proper party plaintiff in a suit for partition of the dower land of his wife's mother. Persinger v. Simmons, 25 Gratt. 238. See generally, monographic note on " Curtesy" appended to Charles v. Charles, 8 Gratt. 486.
Infants.--It is not necessary to summon the infant owners in a partition proceeding, but the court may appoint a guardian ad litem to defend them. 1 Bart. Ch. Pr. (2d Ed.) 215; Parker v. McCoy, 10 Gratt. 594. See generally, monographic note on " Infants" appended to Caperton v. Gregory, 11 Gratt. 505.
Parties Unknown.--If the name or share of any person interested in the subject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill, and the persons unknown may be made defendants by the general description of parties unknown; and, on affidavit of the fact that the names are unknown, an order of publication may be entered against them as against nonresidents. (V. C. 1873, ch. 120, § 4; Id. ch. 166, § 10; V. C. 1887, ch. 114, § 2567; Id. ch. 158, § 3230. 4 Min. Inst. (3d Ed.) 1462.
Where Land Is Sold Pending Suit.--If the plaintiff, after the institution of a suit to partition land, sells the land, the case properly proceeds in his name, as though no such sale had taken place. Gillespie v. Bailey, 12 W.Va. 70.
Former Co-Owner.--A person who had formerly been a co-owner of property sought to be partitioned, but who has since alienated his interest and received the price therefor, need not be made a party to the suit. Fore v. Foster, 86 Va. 104, 9 S.E. 497.
Persons Whose Interestedness Is Uncertain.--When, in a partition suit, it is uncertain whether or not certain persons have an interest in land, it is error to decree a sale of such land without making such persons parties to the suit. Donahue v. Fackler, 21 W.Va. 124. But when it is clear that certain persons have no interest in the land to be partitioned, such persons need not, of course, be made parties. Cooper v. Hepburn, 15 Gratt. 551.
Person Not Made Party by Inadvertence--Estoppel.--A sale of land in a friendly partition suit will not be set aside because a party in interest was inadvertently not made a party to the suit, after the lapse of seven years, when such party was present at the sale and made no objection thereto. Finney v. Edwards, 75 Va. 44.
2. Bill.
Averment of Title.--An allegation that the ancestor died seized and possessed of a tract of land and that the complainant and the defendants are his only heirs, is a sufficient averment of the title of the parties in a suit for partition. Martin v. Martin, 95 Va. 26, 27 S.E. 810.
Deraignment of Title.--In a bill in equity for partition it is not necessary to make a formal deraignment of title, or any deraignment further than is necessary to show how the parties became co-owners and are entitled to partition. Ransom v. High, 37 W.Va. 838, 17 S.E. 413; Martin v. Martin, 95 Va. 26, 27 S.E. 810; Hannon v. Hannah, 9 Gratt. 146; 1 Bart. Ch. Pr. (2d Ed.) 309.
Sufficiency. --In Moore v. Harper, 27 W.Va. 362, it was held that notwithstanding a bill for partition contains many vague and irrelevant allegations, it will not be held bad on demurrer, if taken as a whole it states facts which entitle the plaintiff to relief.
Sufficiency.--A bill averring that plaintiff, under a duly probated will, is entitled to part of a tract of land held by defendant owning the other part, under the same will, and praying for partition, is sufficient, though it fails to aver that defendant purchased his part with notice of plaintiff's claim; it sufficiently appearing that defendant was put on inquiry, and being bound to make it, was affected with knowledge of all he might have discovered had he done his duty. Davis v. Tebbs, 81 Va. 600; Effinger v. Hall, 81 Va. 94.
Relief.--In a bill purely for the partition of land not noticing a prior suit in which the land was sold, the court holding that the plaintiff has no title to the land, she is not entitled under the prayer for general relief to have a decree against the commissioners for the proceeds of sale, even though she be entitled to them; nor is it a case in which the plaintiff will be permitted to file an amended and supplemental bill to recover the money. Hurt v. Jones, 75 Va. 341.
Misspelled Name.--In a bill for partition the defect of a misspelled name is cured, by service of process on the proper person, and amending the bill by inserting the correct spelling. Martin v. Martin, 95 Va. 26, 27 S.E. 810. See also, monographic note on " Amendments" appended to Snead v. Coleman, 7 Gratt. 300.
Multifariousness--Rents and Profits.--A bill for partition is not rendered multifarious, by a mere prayer for an accounting of rents and profits. Humphrey v. Foster, 13 Gratt. 653; Rust v. Rust, 17 W.Va. 901. On this subject generally, see monographic note on " Multifariousness" appended to Sheldon v. Armstead, 7 Gratt. 264.
In Snavely v. Harkrader, 29 Gratt. 112, it was held that where part of the relief prayed for is such as could not possibly be given in that suit, the court will consider the bill as if that part were not in it, and overrule a demurrer for multifariousness.
Prior to the statute empowering the court to try title to the land in a partition suit it was held that a bill in equity, which includes many defendants who have distinct interests is multifarious. Stuart v. Coalter, 4 74; Currin v. Spraull, 10 Gratt. 145.
Partition upon Bill for Specific Performance.--Where two parties purchase land jointly and one of them claims that he is entitled under an agreement between them to the larger portion of the land, and files a bill for a specific performance of the agreement and a partition of the land accordingly, it was held that though the plaintiff fail in this the court may go on and make a partition according to the legal rights of the parties. Jarrett v. Johnson, 11 Gratt. 327.
3. Motion or Petition. --Though the proceeding in partition may be and usually is by bill, it is not necessarily so, but may be by petition or motion, and the parties being summoned the evidence may be heard in court, and the necessary orders and proceedings may be made and had thereon. Parker v. McCoy, 10 Gratt. 594.
4. Answer.
Tax Sale.--In a suit for partition of land, brought by one claiming under an invalid tax deed, the defendant may allege in his answer, as new matter constituting a claim for affirmative relief, the defects in said tax sale and deed, and ask that the same be set aside, and such relief may be granted in such suit. Collins v. Sherwood, 50 W.Va. 133, 40 S.E. 603. See generally, monographic note on " Answers in Equity Pleading" appended to Tate v. Vance, 27 Gratt. 571.
Affirmative Matter--Irrelevancy.--When an answer to a bill in chancery filed for partition of lands sets up affirmative matter and prays relief thereon, and there is a demurrer filed to so much of said answer, as sets up such affirmative matter and prays relief thereon, it is not error for the court to sustain such demurrer, if it appears to the court upon the face of such answer, that such affirmative matter is foreign to the purposes and object of the original bill in the cause and not germane thereto, or not in anywise connected therewith and not properly in defense of any matter or material allegations of the original bill. Rust v. Rust, 17 W.Va. 901.
Parol Partition as Defenses to Partition Suit.--Where a parol partition of land is relied upon in defense of a bill for partition filed by one of the heirs, who was a married woman, and whose husband acted for her in the making of the partition, the burden of proof is on defendant to show, not only that the partition was made, but also which particular lot was assigned to the wife; and hence, where the wife was one of nine heirs, it was insufficient to show merely that two lots of the land were assigned to her and a co-heir jointly. Brooks v. HubbleVa. Dec. 529.
Pending Cause.--In a suit in the county court in chancery between the heirs of a decedent, the court decrees, that a mill, whereof partition can no otherwise be made, shall be sold by commissioners on a credit of twelve months; the commissioners make the sale and report it; the court, after the twelve months elapsed, confirm the report, and order the commissioners to convey to the purchaser; then, a conveyance is tendered to the purchaser, who refuses to complete the purchase, the mill having been carried away by a freshet within the twelve months; and while the cause is yet pending in the county court, the heirs exhibit a bill in the superior court of chancery against the purchaser for specific execution. Held, that as the cause in the county court was still pending, this bill in the superior court could not be entertained. Heywood v. Covington, 4 Leigh 373.
Identify of Property.--Where the answer and exhibits identify the land held by defendant with the land claimed by plaintiff in his bill, there is no need for proof on that point. Davis v. Tebbs, 81 Va. 600.
5. Revival of Suit. --If the plaintiff in a partition suit dies before any decree in the cause, leaving a widow and infant child, the suit may be revived in their name; and neither a bill nor a scire facias is necessary, but it may be revived upon their motion without notice. Code, ch. 173, § 4, p. 718. Wilson v. Smith, 22 Gratt. 493.
6. Dismissal of Suit. --Where an executrix, empowered by the will to sell and convey the testator's land in fee simple, sold a tract of said land accordingly, it is held that a suit brought after her death to have partition among the devisees under the will should be dismissed. John v. Barnes, 21 W.Va. 498.
Decrees.
Interlocutory Decrees.--A decree merely defining the respective interests of the parties, in a partition suit and leaving something further to be done, is an interlocutory and not a final decree and may be altered in the sound discretion of the court. Wright v. Strother, 76 Va. 857. See also, monographic note on " Decrees" appended to Evans v. Spurgin, 11 Gratt. 615.
Consent Decree--Confirmation.--Where commissioners appointed under a decree to make a partition between two part owners of a tract of land report such real estate as partitionable, and divide the same between said parties by actual survey, as shown by a plat returned with their report showing the number of acres to which the parties are respectively entitled, said parties may, by consent decree, without awaiting the confirmation of said report of partition, agree that said land may be sold by commissioners appointed by decree of the court asian entire tract, or in separate tracts, as described in said plat and report; and if at such sale, made under such consent decree, the land that had been allotted to W. in said report (against whose interest liens to the amount of its value exist) is purchased by C., against whose parcel no liens exist, the court may confirm said sale to C. without awaiting the sale of the entire tract; and if the court subsequently, on motion, confirms said partition as to the parcel allotted to C., it will not be regarded as error, and W., by his laches and acquiescence in the action of said commissioners, is estopped from objecting. Connell v. Wilhelm, 36 W.Va. 598, 15 S.E. 245.
Consent Decree--By Counsel.--In a suit for partition of real estate by W against L, W dies, and the suit is revived in the name of his widow and infant son. The counsel employed by W will be presumed, in the absence of evidence to the contrary, to be continued as counsel in the cause; and a decree for a sale of the property entered upon the consent of the counsel is a valid decree, and the sale under the decree will be sustained. Wilson v. Smith, 22 Gratt. 493.
Res Adjudicata.--After the death of a testator, one of the devisees brings a suit to obtain a partition of real estate and distribution of the personal estate The court assigns the widow one-third of the real estate " for and during the term of her natural life," and decrees payment to her of one-third of the personal estate by the executor without words of qualification. Held, as it was not necessary in that case to determine, what estate in the personalty the widow took under the will, she being entitled to the possession of it in any event, such decree is not res judicata of the quantity of estate in the personalty she took under the will. Houser v. Ruffner, 18 W.Va. 244.
Partition Decree as Evidence.--R. C. and others being tenants in common of certain lands, and R. C. having sold a part thereof to E. W. and others, a decree for partition obtained by the other tenants against R. C. in a suit commenced subsequently to the sale, is no evidence in their favor in an action of ejectment brought by them against the vendees who were no parties to the suit for partition. Carter v. WashingtonHen. & M. 345. See also, Flesher v. Mitchell, 5 W.Va. 59.
8. On Appeal. --In a suit for partition, the court has no authority to order a sale of the land, unless it is made to appear by an enquiry before a commissioner, or otherwise, that partition cannot be made in some of the modes provided by statute. But when it did not so appear, and no such enquiry was asked in the court below, a party who promoted the suit and at whose instance the decree was made, will not be allowed to raise the objection for the first time in the appellate court. Howery v. Helms, 20 Gratt. 1.
Failure to Object in Lower Court.--An objection that a decree in partition had not been recorded in the county where the land lies, not having been taken advantage of in the lower court, cannot be made for the first time in the appellate court. Wynn v. Harman, 5 Gratt. 157. See generally, monographic note on " Appeal and Error" appended to Hill v. Salem, etc., Co., 1 Rob. 263.
New Partition Ordered on Appeal.--In a suit for partition of an intestate's estate, a decree is made in 1819, and the commissioners make the division, and return their report to court in 1820; to which report exceptions are filed by two of the heirs. No further proceedings, however, are had in the case for many years, and the parties take possession of the land according to the division, and hold and improve it as their own. In 1836 the cause is taken up, and the exceptions are overruled, and the report confirmed; and afterwards in 1840, upon a rehearing, the decree of 1836 in this respect is confirmed. On appeal the decrees were reversed, and a new partition directed. Chinn v. Murray, 4 Gratt. 348.
Effect of Erroneous Decree When Not Appealed from.--If, in a chancery suit for partition of lands held by tenants in common, the individual land of one of the tenants in common is divided, without objection, with the other lands held in common, and the court afterwards by its decree confirms the report of the commissioners who so divided the lands, but inserted in the decree certain provisions whereby the common-law obligations of tenants in common were changed, such as a provision relieving each tenant in common from his obligation to warrant generally the title of each of his cotenants to the land assigned him, and also provisions to modify the rights of the parties arising from dividing without objection the land belonging to one of them individually as if it were the land of all the tenants in common, and all the parties are fully acquainted with all the facts equally, and have acted in perfect good faith towards each other, though the court could not properly enter such a decree, so modifying the rights and responsibilities of the parties as tenants in common, yet, if the decree is not appealed from, the rights and obligations of the tenants in common will be as fixed by such decree, and not as they would have been under the circumstances at common law, had such decree not modified their rights and obligations. Bowers v. Dickinson, 30 W.Va. 709, 6 S.E. 335.
Interlocutory Decrees.--A decree, directing the surveyor to make partition of a tract of land, and to make report, is not final, and cannot be appealed from. Young v. SkipwithWash. (VA) 300.
9. Continuance. --In Martin v. Martin, 95 Va. 26, 27 S.E. 810, it is held not to be error to refuse a continuance of a suit for partition, merely because one of the coparceners has a claim against the estate of the common ancestor, especially where there is a suit pending in the same court for the purpose of ascertaining the debts against such ancestor, and having the same paid. See generally, monographic note on " Continuances" appended to Harman v. Howe, 27 Gratt. 676.
10. Costs. --The costs of a partition proceeding are in general paid by the parties in proportion to the value of their respective interests. 2 Min. Inst. (4th Ed.) 492. See also, monographic note on " Costs" appended to Jones v. Tatum, 19 Gratt. 720.
11. Creditors' Suits.
Modes of Subjecting Proceeds of Sale in Hands of Commissioners.--Heirs, residing out of the state, having instituted a suit for a sale of land descended to them, and the same having been sold, and the proceeds being in the hands of a commissioner directed by the court to collect them; a creditor of the ancestor seeking to subject these proceeds to the payment of his debt, should apply, by petition, to the court to be made a party in the cause, and to have the fund applied, by proceedings in that cause, to the payment of his debt. Or if he proceeds by foreign attachment the commissioner should be a party, and be restrained by the endorsement on the process, from disposing of the proceeds. Or if the creditor proceeds against the heirs to marshal the assets, there should be an injunction to restrain the commissioner from paying away the money in his hands. And the commissioner, though a party as administrator of the debtor, to the creditor's suit, but having in fact no knowledge of the object of it, paying over the money to the heirs under the order of the court whose commissioner he was, will not be affected by the lis pendens of the creditor's suit, so as to be held liable to pay it over again to the creditor. Carrington v. Didier, 8 Gratt. 260.
CONCUR BY: COALTER; CABELL
CONCUR
JUDGES COALTER and CABELL, concurred in the following, which was entered as the decree of the Court:
The Court is of opinion, that the defendant, Mary Findlay, the widow of James Findlay, was entitled, under the will of her husband, to the tract of land in question, only until his youngest child attained the age of 21 years; and that she is entitled to dower of the said lands, and to occupy the same, without being liable for the rents thereof, until her dower be assigned to her. And the Court is further of opinion, that the appellant was entitled to a partition, subject to the widow's right of dower; and that the Court below ought to have pronounced a decree, assigning dower to the said Mary, in the said land, and for making a partition thereof, according to the rights of the respective parties, and letting them into possession of their respective portions, to be held in severalty, subject to the widow's dower. Therefore, the decree is to be reversed, so far as it conflicts with this opinion, with costs, and the cause remanded to be further proceeded in, according to the principles of this decree. But this decree is not to prejudice any of the parties, in any suit that they may be advised to bring against the said Wiseley, upon the ground of fraud or mistake, in relation to the terms of the conveyances made to him.
[*]
For monographic note on Partition, see end of case.
[*]The President, absent.
[*]The President, absent.