70 W. Va. 507 | W. Va. | 1912
Bessie D. Gartright brought suit in equity, in the circuit court of Marion county, against the heirs at law of Nancy A. Cartright, deceased, to establish title to a tra,ct of land claimed by deed, alleged'to have been lost, and never recorded. She avers that the deed was made and delivered to her by Nancy A. Cartright, her grandmother, in 1903; that she then carefully put it away; that, shortly after the grantor’s death, it disappeared from the place where she had kept it, without fault of her own; and that by diligent search she was unable to find it. She swears to her bill, and prays that her title be established, free from the claims of the heirs of Nancy A. Cartright, deceased, and that she be granted general relief.
Maria F. Snodgrass, a daughter of Nancy A. Cartright, is the only one of the numerous defendants who makes defense. She demurred to the bill, and also answered. Her answer admits that the deed was signed, sealed and acknowledged, but denies that it was ever delivered to plaintiff, or to anyone else for her, and evers that Nancy A. Cartright retained possession of it, until a short time before her death, and then destroyed it in respondent’s presence. There was a general replication to the answer, depositions were taken by plaintiff and by Maria F. Snodgrass, and the cause was heard on the 24th of June, 1908, and a final decree rendered denying relief and dismissing plaintiff’s bill, and she has appealed.
It is suggested in brief of counseJ for appellees, that it does not appear from the bill that all the heirs of Nancy A. Cartright are before the court. True, it does not expressly aver that the numerous defendants named are all of her heirs at law, but their relationship to her is averred, from which it appears that they are her heirs at law. If there are other heirs, not named in the bill, it would be cause for a plea in abatement, but no such plea was filed. The bill does not disclose the absence of any necessary party to the suit, hence it is not demurrable for want of necessary parties.
It is also urged that equity will not entertain a bill to estab-
In Dower v. Suds, 28 W. Va. 113, this Court entertained a bill brought to establish a lost will, and it does, not appear that any rights, under the will, were sought to be enforced by that
It is insisted that the bill does not sufficiently describe the land conveyed to enable the court to decree the re-execution of the lost deed. But we do not understand that plaintiff attempts to set out particularly, in her bill, the description of the land as it was given in the deed. The bill describes the land in a general way, for the purpose of identification. It does not purport to give the identical description that was contained in the lost deed. The contents of the deed do not have to be pleaded, that is a matter of proof. The averments of the bill identify the land, and furnish a basis for proof of a more specific description, not inconsistent therewith. Id cerium est quod cerium reddi potest. Thornton F. 'Cartright and Benjamin Cartright, husband of plaintiff, both testify concerning the description .of the land. Benjamin Cartright says he read the deed, and his testimony in relation to the boundaries is as follows, viz: “Commenced at the creek at two oaks on Phillip Gump’s line, then it run west or a little southwest I believe to a dogwood or an oak stump and further to the mouth of the run to a sycamore.” He further says this run is known as Long Drain, and that the line ran “from the mouth of the run to the place of the beginning.” Thornton F. OartrighPs testimony is not quite so specific as to boundary lines.
Plaintiff had a survey and plat of the land made by one A. C. Martin, long after the death of Nancy A. Cartright. That survey, of course, can not be regarded as evidence in support of
■ In her answer, Mrs. Snodgrass admits that Nancy A. Cart-right and her husband signed and acknowledged a deed to plaintiff, for the land described in the bill. But avers, first, that it was done under duress; and second, that the deed was never delivered. The burden of proving the first averment rests on defendant, and the only evidence of duress is found in the depositions of defendants Isaac C. Cartright and Mrs. Snodgrass, both of whom testify that -their mother told them that she had been threatened with’ violence, if she did not make the deed. These witnesses, being interested parties to the suit, were clearly incompetent to testify in relation to conversations had with their mother, against plaintiff, who claims to be her grantee, and their testimony was very properly suppressed by the lower court. Their testimony out, there is no proof whatever of duress.
But delivery is one of the essential elements to establish, due execution of a deed, and plaintiff must prove it. Without delivery, title does not pass. Plaintiff is not a competent witness, against the heirs of her grantor, to 'prove delivery. But there are a number of witnesses who testify that Nancy A. Cartright told them that she had made a deed to “Bessie,” and had given it to her. So says Nathan Booth, Phillip Gump, Susan A. Bose and McClelland Bose, all of whom were her near neighbors, and had frequent talks with her. Thornton F. Cartright, husband of Nancy and joint maker of the deed, was a competent witness to prove its delivery, and he testifies as follows, viz: “Q. Do you remember anything about airy deeds to Bessie Cartright? A. Why yes, my wife and me made her a deed. Q. When was that? A. I don’t remember the time. It’s been seven or eight, or maybe ten years ago. Q. What did you do with
Plaintiff is a granddaughter of Nancy A. Cartright, deceased, and lived with her from infancy. When she grew to womanhood she married her cousin Benjamin Cartright, and they together made their home with their grandparents, and plaintiff took care of her grandmother, who was a very old lady, until a short time before her death, when plaintiff herself became ill and was not able to do so. However, she still continued to live in the same house with her. Maria F. Snodgrass is a married daughter of Nancy A. Cartright, and lived in the State of Kansas. . She visited her mother during her last illness, in Marion county, West Virginia, and remained with her until she died. She and her niece, the plaintiff, appear not to be on very friendly terms. The deed sought to be established was made in November, 1903, nearly three years before Nancy A. Cartright died. At that time Mrs. Cartright, who was growing old and feeble, concluded to dispose of her land. Accordingly, she and her husband signed and acknowledged the deed to plaintiff, and two other deeds — one of which was to Mrs. Snodgrass and her brother Isaac C. Cartright, who lived in Jasper county, Missouri, and the other to the same grantees and to the heirs of John Cartright, deceased, jointly. In all of these conveyances Mrs. Cartright retained a joint life estate for herself and husband. But the deeds to Mrs. Snodgrass and her brother were not delivered to her until August, 1906, when she came to visit her jnother, in her last illness. It was sometime during this visir Tiat plaintiff claims her deed disappeared from the place where she kept it.
Delivery of the deed to plaintiff having been proven by competent witnesses, we are of the opinion that plaintiff is competent to prove its subsequent loss. She testifies that, when her own deed was delivered to her, her grandmother also gave her other deeds for safe keeping, and that she kept them all in a receptacle under the bed in a room occupied by her grandmother and her
Another question' raised in brief of counsel is, that it does not
We will reverse the decree appealed from, and will remand the cause, with direction to the lower court to appoint a commis
Reversed and, Remanded.