118 Va. 505 | Va. | 1916
delivered the opinion of the court.
This suit was instituted in June, 1902, hy Peter Bailey and others to obtain partition and division in kind, or a sale and
By a vacation decree in September, 1902, it was held that the land could not be conveniently partitioned in kind, and a special commissioner was directed to sell the same at public auction. A sale at the price of $125 was made to W. M. Ely, which was confirmed by a decree in October, 1902, and the special commissioner was ordered to make a deed to the purchaser; and, again, by a decree of November 10, 1902, the said special commissioner was directed to collect the purchase money from Ely and to convey the land to him by a good and sufficient deed. This latter .decree is the last one appearing in the cause until after the filing of the petition hereinafter mentioned. The commissioner, by deed dated November 12,
1902, conveyed the land to Ely, and it also appears informally in the record that he subsequently collected the purchase money and disbursed the same, including a payment of the costs of the suit. There is no real contest here over the proceeds of the sale, but he made no formal report relative thereto, and the cause is still on the docket.
Ely took and held possession under his deed until April 1, 1903, when he sold and conveyed the land to W. E. King, who, on August 23, 1907, conveyed thirty-eight acres of it to Henry Ricks. These purchasers have been in possession of the land continuously ever since 1902.
The parties to this litigation, except Ely, are all negroes. There is no dispute about the fact that Cheeseman Hargrave owned the land. The question raised by the petition is as to who were his next of kin. Peter Bailey and other parties in whose favor the original sale for partition was decreed contend that Bob Bailey was a brother (having the same mother) of Cheeseman Hargrave, and that the latter had no other brother or sister, or other relative who could share with Bailey or his heirs in the estate. The petitioners, George Cypress and others, who claim title under one Eannie Cypress, contend on the other hand that if Bob Bailey and Cheeseman Hargrave were half brothers at all they were not children of the same mother, but of the same father, and that the one therefore could not inherit from the other. The petitioners assert that Eannie Cypress was the only sister or brother who survived Hargrave and who could inherit from him, and that her descendants and the descendants of another sister, who died before Hargrave, leaving issue, are his sole heirs.
It will not be necessary to go further into this phase of the case. It involves, suffice it to say, questions of law and fact relating to marriage, legitimacy of offspring, and the statute of descents, as applicable to slaves and free negroes, respectively, prior to 1866, with the result, in any event, that if the original parties in whose favor the sale for partition was made had any interest at all in the land, they were the sole owners thereof, while per contra, if the parties who filed the petition in question
The circuit court, by the decree from which this appeal was allowed, sustained the claim of the petitioners, set aside the sales and deeds to Ely, King and Kicks above mentioned, held again that a partition of the land could not be made in kind, directed a new sale for the benefit of the petitioners, and ordered that King pay for timber which he had cut from the land, and that he and Kicks pay rent for the land during the time they had held it.
The appellants are the original parties to the suit, with the exception of Louisiana Johnson and Alice Koberts, and with the addition of King and Kicks, and their principal contentions, as made in the lower court and repeated here, are (1) that the court was without jurisdiction to entertain the petition on its merits; (2) that the decree confirming the sale to Ely and directing a deed was a final decree which could only be reviewed within a year, and (3) that upon the merits, the evidence shows that Bob Bailey was the sole next of kin of Cheeseman Hargrave, and that the petitioners never had any lawful claim to the land or any part thereof.
In our view of the case it will not be necessary to discuss any but the first of these assignments of error, being of opinion that the case is controlled by the decision of this court in Litz v. Rowe, 117 Va. 152, 86 S. E. 155. The circuit court was without jurisdiction to determine in this cause the question of title between these two wholly distinct and hostile claims. It was a question for a court of law, and did not arise in such manner as to bring it within the meaning of the provision of section 2562 of the Code permitting courts of equity to “take cognizance of all questions of law affecting the legal title that may arise in any proceedings, as well between tenants in
Counsel for appellees call attention to. the fact that the amendment which added to section 2562 of the Code the words “as well between tenants in common, joint tenants and coparceners as others ” was made since the decision in Pillow v. Southwest Imp. Co., supra, but it is also to be noted that the
To grant the relief, or any of it, prayed for in the petition would be for a court of equity to try title to land in a case where neither the pleadings nor the facts are such as to confer jurisdiction. Litz v. Rowe, supra, and authorities therein cited.
The decree complained of will be reversed and annulled, and this court will enter a decree dismissing the petition and awarding costs to the appellants.
Reversed.