73 W. Va. 731 | W. Va. | 1914
Plaintiff sued in ejectment to recover possession of an alleged estate by the. curtesy in land once owned by his wife, of which the declaration alleges he was possessed on July 1, 1910, but that afterwards on the same day defendants entered and unlawfully withhold possession thereof from him. Pleas of not guilty and the statute of limitations were interposed by the defendants.
The agreed facts submitted to the court in lieu of a jury, are substantially as follows: On and prior to November 2, 1891, Martha J. Calvert, plaintiff’s wife, owned by inheritance from her father, a separate estate in fee, in a tract of 4614 acres of land. On that day, for full consideration paid, she sold, and by separate deed, in which her husband, then and prior, and until March 30, 1906, an insane person, did not join, she undertook to convey said land to her brother, H. N. Johnson, and then put him in possession thereof. He held continuous, open and exclusive possession thereof and paid all taxes thereon until March 14, 1898, on which date he and his wife conveyed the land to W. H. Murphy putting him in actual possession thereof, and who continued to occupy the same openly and exclusively and paid all taxes thereon until his death, occurring May 28, 1910, leaving surviving him his widow, Clmenia Murphy, and certain heirs, named as defendants in this action, and from whom plaintiff, as alleged tenant by the curtesy, seeks recovery of said land. Martha J. Calvert died July 24, 1904, leaving plaintiff, her husband, insane until March 30, 1906, and a daughter, Jennie Crow (nee Calvert), ■surviving her.
This action was begun August 1, 1910, and from the agreed
It is conceded that if the statute of limitations ran against Martha J. Calvert, a married woman, from the date of her deed to Johnson, she was barred of recovery after the lapse of ten years from that date, which was November 2, 1901, or four years, four months and twenty-eight -days before plaintiff’s disability was removed.
The court below upon the issues and facts presented found for defendants, and pronounced the judgment of nil capiat complained of.
It is conceded that Mrs. Calvert’s deed to Johnson of 1891, not joined in by her husband, was void, but two questions are presented: First, did her deed constitute color of title, by which her grantee with adverse possession under it for the requisite period could acquire good title, and work a disseizin of her estate and interest in the land ? Second, if this question be affirmed, she being so disseized in her life time, is plaintiff thereby also barred, or did right of action on her death accrue to him, and continue for five years after his disability was removed ?
On the first question it is hardly necessary to cite authority for the proposition, so often affirmed, that any deed which purports to convey title, however defective, gives color of title, and when accompanied by adverse possession for the statutory period of ten years, will ripen into a good title. Swann v. Thayer, 36 W.Va. 46; Swann v. Young, Id. 57; Ritz v. Ritz,
The second proposition we think must also be affirmed. True section 3, chapter 104, gives to any one under disability right of action to recover land at any time within five years after removal of such disability. But as to the separate estate .of a married woman, her husband has no interest during her life, and to entitle him to curtesy in her land, on her death, she must by section 15, chapter 65, Code 1913, serial section 3663, have dded seized of an estate of inheritance therein. During coverture a husband has no interest in the separate estate of
Our conclusion, therefore, is that the judgment below is ■clearly right and should be affirmed.
Affirmed.