Coffman v. Coffman
150 S.E. 744
W. Va.
1929
Check Treatment
Maxwell, Judge:

This is a suit for partition of 104% acres of land in Randolph county. The prayer of the bill is that the land be *286 divided in tbe same proportion as tbe purchase money was contributed by tbe plaintiff and defendant, respectively. Tbe trial chancellor found that each of the parties was an owner of an undivided one-half interest in the land and appointed commissioners to divide the same on that basis. From that decree plaintiff prosecutes this appeal.

The land was conveyed to the parties by deed dated March 20, 1916. At that time they were husband and wife and continued so to live until they were divorced by a decree of the circuit court of Randolph county in June, 1927. No attempt was made to settle the property rights of the parties by the divorce decree. The consideration paid for the land as recited in the deed was $2,100.00. The amount paid by each is in controversy. The trial chancellor found that the plaintiff paid $1,650.00 and the defendant $500.00. As to the use to which the land was to be put after purchase, there is likewise a conflict. Plaintiff contends it was purely for speculation; defendant says it was for a homestead.

The question for determination is as to the interest each of the parties took by the purchase. Plaintiff’s contention is as voiced in the prayer of the bill to which reference has already been made. Defendant argues that by the terms of the deed each shares equally in the ownership. We are faced with two presumptions which are controlling of the issue, in the absence of satisfactory proof overcoming them. The first is that when a conveyance is made to two grantees jointly they are presumed to share equally in the property unless something appears to the contrary in the grant itself. Irwin v. Stover, 67 W. Va. 356, 364; Jarrett v. Johnson, 11 Graft. 327. The present deed is made to Israel Coffman and Agnes Coffman, with nothing said as to the interest each is to take. The trial chancellor has found that the evidence adduced by the plaintiff does not overcome the presumption which the language of the deed creates, and it is our duty to follow that finding of fact where it does not appear to be against the plain preponderance of the evidence. Kincaid v. Evans, 106 W. Va. 605, and cases there cited. The second presumption is that where a husband purchases property and causes title for the whole or a part thereof to be placed in his wife, it is *287 presumed to be a gift to-her. Effler v. Burns, 70 W. Va. 415. Granting that tbe plaintiff paid considerable more tban tbe defendant of tbe purchase money, tbis presumption is, nevertheless, controlling in tbe absence of clear evidence that tbe plaintiff did not intend tbe extra amount paid by him to be a gift to bis wife. Again we say tbe finding of tbe trial chancellor on tbe facts here involved must be controlling, as it is plainly not contrary to a clear preponderance of tbe evidence.

In argument it was urged on behalf of tbe plaintiff that tbe parties were partners in tbis property, and it was insisted that such relationship should be taken as tbe basis of tbe settlement of tbe property rights here involved. Tbis was not pleaded. Tbe bill is for partition of land and not for settlement of a partnership.

It follows that tbe decree of tbe trial court must be affirmed.

Affirmed.