22 W. Va. 120 | W. Va. | 1883
William Porter died intestate in 1818 the owner of several tracts of land, among which was a tract of three hundred acres situated in Ohio county, and leaving eight children as his heirs-at-law. Prior to and at the time of his father’s death John Porter, one of said children, was living upon said three hundred acres and he so continued to live thereon until his death in 1859, and his two sons, John and Jackson Porter, the defendants in this suit, have lived thereon ever since. In 1822 said John, the elder, received a deed for the interest of'one of his brothers in said three hundred acres, and in 1834 he received a deed for the interests therein of all his other brothers and sisters excepting that óf his sister Mary, the ancestor of the plaintiffs. The consideration paid by said John for said several interests was two hundred dollars to each of said brothers and sisters. In 1823 said Mary became the wife of John Cooey and remained such until the death of her husband in 1878 and she died in 1879. By ¿ writing in the form of a deed of bargain and sale with formal covenants of seisin and assurances of title, dated April 6, 1837, signed by the said Mary alone and acknowledged by her as her deed, but without privy examination, before two justices of the peace of said Ohio county; the said Mary as sole grantor
Many other facts and circumstances appear in the record which were to some extent discussed in the argument before this Court, but as they are merely collateral to the main issue I have omitted any statement of them as being immaterial in the view I take of the case. The only question to be decided in my view, and the one which will fully dispose of the whole controversy in the cause, is that involving the bar of the statute of limitations. Unless it can be shown that the plaintiffs, or the said Mary Cooey under whom they claim, were exempt from the. operation of said statute, the exclusive and uninterrupted use and enjoyment of said three hundred acres of land by said John Porter and the defendants accompanied with an exclusion of all right in the plaintiffs or their ancestor, the said Mary Cooey, from the year 1837, to the year 1881, when this suit was instituted, is such an adverse
The appellants rely upon two grounds to withdraw their claim from the bar of the statute: First, that the possession of John Porter, the father of the defendants, was that of a joint owner, a co-parcener with his sister Mary Cooey, the ancestor of the appellants;, and second, that the said Mary Cooey was under the disability of coverture; and so claim that the statute has no application.
1. — It is undoubtedly true that the possession of one parcener is ordinarily regarded as the possession of all the others, and such possession, being subordinate and not adverse, cannot, however long continued, operate as a bar to his co-parceners. But it is equally true that such parcener in possession may disseise his co-parceners and from the time of such disseisin his possession will be adverse. That one co-parcener, joint tenant or tenant in common may disseise his co-tenants there can be no legal doubt. The law on that question is fully settled. McClung v. Ross, 5 Wheat. 116; Purcell v. Wilson, 4 Gratt. 16; Clarke v. McClure, 10 Id. 305; Cuperton v. Gregory, 11 Id. 505. But what acts will amount to a disseisin is not always easily determined. While on the one hand a silent possession, accompanied with no act which can amount to an ouster or give notice to his co-parceners that his possession is adversary, will not be construed into a disseisin or adverse possession, still on the other hand, where one co-parcener occupies the common property notoriously as the sole owner, using it exclusively, improving it and taking to his own use the rents and profits therefrom and otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right or claim of his co-parceners, such occupation will amountto a disseisin of his co-parceners, and his possession will be regarded as adverse from the time they have knowledge of such acts or occupation. Tyler on Eject. & A. E. 927. It may be affirmed as a general rule, well established, that if one joint owner show by his acts or words that he means to hold out his co-tenants and actually exclude them, it is an ouster and his possession becomes adverse. Humbert v. Trinity Church, 24 Wend. 587; Brackett v. Norcross, 1 Greenl. 89; Har-
The authorities it seems to me fully sustain the doctrine that it is the quo animo, the intention of the tenant or par-cener in possession to hold the common property in severalty and exclusively as his own, with notice or knowledge to his co-tenants of such intention, that constitutes the ouster; therefore, any open, notorious act evincing such intention, or any explicit disclaimer or denial of the claims of his co-tenants, or the assertion of a several and individual estate or title in himself to the entirety of the common property, will operate as a disseisin or ouster of his co-tenants, and from the time they have notice or knowledge of such act, disclaimer or assertion of title his possession will be adverse and the statute of limitations will commence to run — Clymer v. Dawkins, 3 How. 674; Jackson v. Smith, 13 Johns. 406; Caperton v. Gregory, 11 Gratt. 505; Terrill v. Murray, 4 Yerg. 104; Peeler v. Guilkey, 27 Tex. 355 ; Lodge v. Patterson, 3 Watts 74.
The notice or knowledge required, must be either actual as in the case of a disavowal or disclaimer; or the acts relied on as an ouster, as in the case of expulsion, making costly improvements and exercising exclusive ownership, must be of such an open, notorious character as to be notice of themselves or reasonably sufficient to put the disseised co-tenants on enquiry, which, if diligently pursued, will lead to notice or knowledge in fact — Lefavour v. Homan, 3 Allen 354; Lodge v. Patterson, supra.
The nature or character of the title or claim under which the'occupying tenant asserts his ownership is entirely immaterial. It is the fact that he claims the property as his own and not the goodness of his title which makes his possession adverse. His claim may be founclécl on a defective or even a void deed or paper as well as upon a valid instrument, or it may be simply in pais without any paper or color of title and resting wholly upon a naked assertion of title or claim in himself accompanied by exclusive possession — Caperton v. Gregory, supra; Jackson v. Brink, 5 Cow. 483; Jackson v. Ellis, 13 Johns. 118; Jackson v. Long, 7 Wend. 170; Leonard v. Leonard, 10 Mass. 231; Jackson v. Huntington, 5 Pet. 401;
In the case at bar it is admitted that John Porter, the father of the appellees, entered upon the three hundred acres of land in controversy as the common property of himself and his co-parceners, his brothers and sisters, without any claim or assertion of an exclusive right or title in himself. In 1834 and prior thereto he purchased the interests of all his co-parceners in said land, except that of Mrs. Cooey, the ancestor of the appellants, and he thereby became the absolute owner of seven eighths of the land. He thereafter continued in possession of the whole property until 1837, without any denial or disclaimer of the interest of his remaining co-parcener, Mrs. Cooey, and therefore, his possession to that date, at least, must be regarded as also the possession of Mrs. Cooey. Up to this period it must be admitted that his possession, being subservient to hers, could not be adverse and the statute did not run against her right or title. On April 6,‘1837, he received from Mrs. Cooey the paper of that date hereinbefore described. The existence of this paper presents the material question, whether or not its execution by Mrs. Cooey to John Porter, and the subsequent conduct of the parties, furnishes sufficient evidence of an ouster of the possession of Mrs. Cooey and a conversion of the common possession of John Porter into a several, adverse and exclusive possession in his own right.
It is contended by the appellants that said paper cannot be used as evidence for any purpose; because at the time it was executed Mary Cooey was a married woman, and her husband being no party to it, and moreover there being no certificate to it of her privy examination, it is void for any and all purposes. In support of this position they cite, Harvey v. Pecks, 1 Munf. 518, and Kidd v. Alexander, 1 Rand. 456. These cases tend to show that said paper is void as a contract and ineffectual as a grant or conveyance. But conceding the authority of these cases and admitting that said paper is absolutely void and of no effect whatever either as a deed or contract of sale, it does not necessarily follow that it cannot be used as evidence for any purpose. The paper and
In this case the said paper was in my opinion sufficient evidence to establish both the intention of John Porter to hold said land as his own absolutely and also notice.of that intention to Mrs. Cooey. That such was the intention and understanding of both parties is .strongly confirmed by their subsequent conduct. In fact their subsequent conduct is entirely inconsistent with and can not be explained upon any other hypothesis. From the time this paper was executed
Poes the fact that Mary Cooey was a married woman in 1837, when she was disseised of her possession of the land in controversy, and so continued until her death in 1879, exempt the claim of' the appellants from the bar of the statute of limitations? "Without relying upon the construction given to the act of March. 30, 1837, by the court of appeals in Virginia in Caperton v. Gregory, 11 Gratt. 511, wherein it was held that the seisin of the husband of a freehold estate in the land of his wife subjected her right to the bar of the statute to the same extent as if she were sui juris, there can be no question that the right of Mary Cooey for the recovery of the land in this case was barred before her death, notwithstanding her coverture, either under the statute of Virginia — Code of 1860, chapter 149, section 4, or the statute of this State — Code of 1868, chapter 104, section
“4. The preceding section is subject to these provisions: that no such entry or action shall be made or brought by any person, who at the time at which his right to make or bring the same shall have first accrued, shall be under any such disability, or by any person claiming through him, but within twenty years next after the time at which such right shall have first accrued, although the person under disability at such time, may have remained under the same during the whole of such twenty years, or although the term of ten years from the period at which he shall have ceased to be under such disability, or have died, shall not have expired.”
The statute, as we have seen, having commenced to run against the said Mary Cooey, under whom the appellants claim, in the year 1837, and so continued until her death in 1879, a period of forty-two years and more than twice the period allowed by the aforesaid statute to complete the bar of her right of entry or action, consequently, her right to recover the land in controversy was barred before her death, and of course no right of action could descend from her at her death or exist in the appellants thereafter. I am, therefore, of opinion that there is no error in the said decree of the circuit court and the same must be affirmed with costs to the appellees and thirty dollars damages.
DECREE AEEIRMED.
