46 W. Va. 139 | W. Va. | 1899
This is an action of ejectment, brought against Seth Spurlock and John S. Yeager in the circuit court of Lincoln County by Ansel Adkins and M. E. Adkins, an infant,
“Know all men by these presents, that I have sold to ’Lifus Spurlock this day my interest in the Parker Lucas home place, for the sum of eight hundred dollars. I agree to settle Miller’s part in the same, if I can in a reasonable way, and give ’Lifus Spurlock possession of the same in the spring. I agree to give him a general warrantee deed to the sola tract, and the same kind of a deed to the back land as is invested in me. The land is the land sold by Joseph Miller as trustee to J. A. Holley, dec’d, Wm. Miller and Spencer Midkiff. The said Spurlock has paid me this day five hundred dollars on the land, for which he is to have a credit for, provided Miller and 1 can in a reasonable
“June 1st, 1894. I assign the within title bond to Seth Spurlock, for value received of him.
“Elifus X Spur-lock.”
The parol evidence undoubtedly establishes that there had been an agreed division of the land between John Lucas and S. D. Holley, and that Eliphus Spurlock and John Yeager, his son-in-law, took possession of the Holley portion of the land according to such division in 1885, and the defendants and those under whom they claim were in actual, continuous, notorious, and adverse possession thereof until the bringing of this suit, in 1896, a period of more than ten years. While there is some little dispute as to the exact time when the division line was finally established and agreed upon, yet the evidence plainly shows that the defendants were in actual possession and occupancy of the land, to the exclusion of Paris Adkins, openly and notoriously claiming the same as their own during the period aforesaid, and were undisturbed in any manner in their possession thereof. Partition, though it be void, and holding land in severalty by co-tenants, is a mutual ouster of each other as to the portion in actual occupancy, and is, therefore, adverse. Jackson v. Tibbits, 9 Cow. 241; Gautier v. Howard, 38 Mo. 68; Cryer v. Andrews, 11 Tex. 170 Scoby v. Sweatt, 28 Tex. 713. There can be no
The plaintiffs, through their counsel, insist that, Paris Adkins now being dead, the writ of error should be dismissed. The only question properly presented to the cir
Reversed.