81 W. Va. 411 | W. Va. | 1917
The two tracts of land involved in this litigation were formerly owned by R. C. McClangherty and J. Coleman Aider-son, the said McClangherty owning a one-third undivided interest, and said Alderson the other two-thirds. Both of said, tracts of land were placed on the land books of Boone county and assessed with taxes thereon in the names of said McClangherty and Alderson, and for the years 1895 and 1896 the taxes so assessed against the same were not paid, and they were returned delinquent by the sheriff for such non-payment. Afterward McClaugherty paid one-third of said taxes in order to prevent the sale of his one-third interest in the land, and the interest of Alderson was sold by the sheriff and purchased by F. C. Leftwich and S. E. Bradley. At the instance of the tax purchasers the county surveyor went upon the land when the time came for them to get a deed, and partitioned it in kind, assigning to McClaugherty one-third thereof, and laying off the other two-thirds to Al-derson. The clerk of the county court of Boone county made a deed conveying the two-thirds thus assigned as the Aider-son interest to Leftwich and Bradley, who subsequently conveyed such interest to J. R. Wingfield, trustee. Wingfield, trustee, also acquired the title to the one-third owned by McClaugherty. The land was placed on the land'books in the name of Wingfield, trustee, and his successors in title, and the taxes have been regularly paid thereon ever since. Subsequent to the tax sale J. Coleman Alderson was adjudged bankrupt, and George H. Shrewsbury, his trustee, instituted a suit in the circuit court of Boone county asserting the ownership of the two-thirds interest in the said tract of land, and asking that the tax deeds made to Leftwich and Bradley,
It is insisted on the part of the plaintiff that the defendant will not be allowed in its answer to set up any claim to this land to defeat his interest therein, for the reason that that interest has been established by the former adjudication of this court. That an adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject-matter of the action, is a firmly established doctrine. It is not essential that the matter should have been formally put in issue upon the former litigation, but it is sufficient that 'the status of the suit was such that the parties might have had the matter disposed of on its merits. 15 R. C. L. 969; Western Mining & Mfg. Co. v. Virginia Cannel Coal Co., 10 W. Va. 250; Corrothers v. Sargent, 20 W. Va. 351; Tracey v. Shumate, 22 W. Va. 474; McCoy v.. McCoy, 29 W. Va. 794; Sayre v. Harpold, 33 W. Va. 553; Rogers v. Rogers, 37 W. Va. 407; Blake v. Ohio River R. R. Co., 47 W. Va. 520; Biern v. Ray, 49 W. Va. 129; St. Lawrence Co. v. Holt & Matthews, 51 W. Va. 352; State v. Hicks, 75 W. Va. 767; Koontz v. Mylius, 77 W. Va. 499. But the
The defendant insists that the court erred in sustaining the exception to that part of its answer setting up a claim for improvements placed upon the real estate. The answer alleges that the improvements made ilpon this real estate by the defendant, and those claiming under it, can in an equitable partition of the estate, be assigned to it, and if this is true such an assignment should be made. While a court of equity in many cases will not allow one co-tenant compensation for improvements placed upon the common property, neither will it allow the other co-tenant to take advantage of such .expenditures if an equitable division of the property can be made between the parties and this result prevented. In other ■words, if one of the co-tenants has improved the joint property at his own expense, a court of equity in partitioning the property between them will see to it that the part upon which the improvements have been made is assigned to the party ‘making them, without charging him with the improvements that, he has placed upon it, unless to do’ so would prevent' an equitable partition of the land. In this way he is given the benefit of the expenditures he has made, and his co-tenant is siot allowed to take an unconscionable advantage of him. 3freeman on Co-tenancy and Partition, §509, and authorities there cited. In this case the court found that the plaintiff was entitled to have the land partitioned, and we think this is in accordance with the holding of this court on the former •appeal. • The defendant in its answer alleges that all of these improvements have been placed upon a small part of the land, and that that part can be assigned to it without doing injustice to the plaintiff. If this allegation is true, then it will be the duty of the commissioners to assign to the defendant the part of 'the land -upon which its improvements are without considering the improvements as a pai’t of the 'value thereof, and to the plaintiff the •other part. It will
It remains for us to dispose of plaintiff’s cross assignment of error. The court refused to grant the plaintiff an injunction restraining the defendant from extracting further coal from the common property. It sufficiently appears that a very small quantity of coal has been taken from this large tract of land, certainly nothing like one-third thereof, and from the answer of the defendant it appears that the part of the land so mined under is close to its improvements, so that in any partition of the land it may well be assumed that this part of the land upon which defendant’s mining operations have been conducted, including the part from under which it has taken the coal, will be assigned to it, and that in making the assignment the commissioners will treat it as though the improvements had not been made, and as though no coal had been taken out, that is, they will add nothing to the value of the land because of defendant’s improvements, if these improvements are assigned to it, nor will they take anything from it because of coal extracted therefrom by the defendant, should the defendant get the part of the land from which the coal haá been taken. No doubt the court below.took this view, .believing that in the final determination of the case the plaintiff would receive his share of the property free from any waste which may have been committed by the defendant because of coal mining. Should it hereafter appear that the property cannot be divided so as to give to the defendant the part upon which its improvements are placed,' and from
It follows from what has been said that the decree complained of will be affirmed, and the cause remanded to the circuit court of Boone county for further proper proceedings.
Affirmed.