On the 23d day of November, 1891, C. P. Cosner, U. S. Cos-ner, Freeland H. Cosner and others, parties defendant in a certain suit in equity, pending in the Circuit Court of Tucker county, in which S. McCrum was plaintiff, filed their petition, verified by affidavit, in the nature of a bill of review, alleging errors in a decree of sale which had been entered in said cause at the June term, 1891, of said court, and praying for a review and hearing of said decree, and a correction of the errors therein, which petition, with its exhibits, was ordered to be filed; and the plaintiff, S. McCrum, appeared thereto, and waived the service of process therein, and tendered his answer to said petition, admitting that said decree of sale was erroneous in so far as the same directed a sale of the land' directed to be sold before the assignment of the widow’s dower therein, but denying that there was any other error in said decree; and on his motion said answer was ordered to be filed, upon consideration whereof it was ordered
Commissioners were appointed to go upon the two hundred and one acres of land in the commissioners’ report mentioned, and ascertain if the same could be identified and located, and, if so, to lay off and assign unto Elizabeth Cosner, widow of Solomon W. Cosner, deceased, one third thereof, as and for her dower therein, having regard! to quantity and quality; and said commissioners were directed to further ascertain and report if the said Solomon W. Cosner died seised of any other lands, and, if so, they should assign to his said widow her dower portion therein, having regard to quantity and quality.
The errors alleged and relied upon by the petitioners, C. P. Cosner and others, to annul and set aside the decree rendered in said cause of S. McCrum v. F. H. Cosner, administrator, etc., entered at the June term, 1891, are: First, That the said decree directs two hundred and one acres of land to. be sold, but nowhere upon the face of said decree, or in the papers or proceedings in the cause, is there any identification of the said two hundred and one acres, or any description thereof whereby the same can be in any manner located, or its boundaries defined, and it was wholly impossible for petitioners to know or understand which one of their lands was to be sold. Second. The land was decreed to be sold subject to the dower of the widow, Catherine Cosner, who had in no way expressed her election to take her dower interest in money, instead of in kind. Third. Said petitioners alleged that said Solomon W. Cosner died seised of no real estate, but all that he was ever possessed of was conveyed away by him in his lifetime, by largely voluntary deeds, which were executed more than five years before the institution of said suit; that by deed of gift, purely voluntary, as shown on its face, nearly thirteen years before this suit was brought^ and when the said Solomon W. Cosner was in no way indebted, he conveyed all the lands of which he was possessed, consisting of three tracts, of five hundred and
On the 14th day of June, 1892, the defendant S. McCrum obtained leave to file an amended answer to the plaintiff’s petition, in which he claims that from an inspection of the alleged deed from Solomon W. Cosner to Catherine Cosner and her children, it will be seen that the same is no deed, but is only an agreement, so far as the land mentioned therein
Respondent also denies the right of Freeland H. Cosner to have anything in said petition entertained for any purpose, for the reason that he filed his answer in the original cause, raising the very questions sought to be reviewed by said petition, and the same were decided -against him, and the opinion of the court upon these questions was not only con-' elusive against the said Freeland H. Cosner, but was also conclusive againstl all the petitioners. And respondent charges that the questions sought to be raised by said petition are not such1 questions as can be raised on a proceeding of this kind, but such of said petitioners as let said original
This amended answer was excepted to by the petitioner because it presented no new matter of defense, and no good reasons are shown for its filing. On the 23d day of June, 1892, the court overruled the exceptions to said amended answer, and the petitioners replied generally thereto, and the cause was referred to a commissioner to report all the facts and circumstances connected with the title to the land claimed by the plaintiff, S. McCrum, to have been owned by S. W. Cosner at the time of his death, reporting specially what, if any, control and possession! said Solomon W. Cos-ner exercised over the land in controversy after the date of the deed from him to his wife and children.
On the 29th day of June, 1893, the cause was heard upon the report of James W. Bowman, surveyor, and others, commissioners to assign dower to said widow, the former orders and decrees therein, and upon the report of the commissioner to which there is one exception filed by the defendants, and upon the evidence taken before said commissioner; upon consideration whereof the exceptions to the report of commissioners Valentine and Adams were overruled, and said reports confirmed, except so far as therein modified; the decree confirmed the report of commissioners assigning dower to Catherine Cosner, widow of Solomon W. Cosner; ascertained that said S. W. Cosner, at the time of his death, was the owner of three tracts of land, one containing two hundred and twenty one and three fourths acres, one containing one hundred and
In examining the questions raised by the petition of C. P. Cosner and others, in the nature of a bill of review, which petition must be so regarded, we encounter some difficulty in passing upon the questions raised by said petition, in the absence of the original record, or the final decree which is sought to be reviewed. Enough, however, appears from the allegations of the petition which are uncontradicted, and the exhibits therewith filed, to enable us to pass upon the material questions raised.
The third error alleged and relied upon by the petitioner raises the question as to the effect of the paper filed as Exhibit X with the petition, which purports to be a deed of gift from Solomon W. Cosner to his wife and children, bearing date July 12, 1877, whereby, in consideration of love and affection, it is alleged in said petition, he «conveyed all the lands of which he was possessed unto his wife and children, which deed was duly acknowledged and admitted to record, which deed was voluntary, and was acknowledged and admitted to record nearly thirteen years before this suit was instituted. It is contended in argument that said Exhibit X is not a deed, because the scroll and seal are not recognized in the body of the instrument; and while it is true that our statute (Code, c. 13, s. 15) provides that “when the seal of a natural person is required to a paper, he may affix thereto a
Prof. Minor, in ‘his Institutes (volume 2, p. 653) upon this-question, says: “In instruments not required by some statute to be under seal, the scrolll must be recognized as a seal in the body of the instrument, as in the case of a common bond for money;”'citing Clegg v. Lemessurier, 15 Gratt. 108, where it is held that “a writing for the payment of money or other purpose, which is not required to be by deed, having a scroll at the foot thereof, with the word 'seal’ written therein, but which is not recognized in the body of the instrument as a seal, is not a'sealed instrument.” In this-case Judge Lee, in delivering the opinion of the court, reviews the authorities, and, referring to the case of Ashwell v. Ayers, 4 Gratt. 283, 'says: “And, as recording was essential to perfect the instrument for the purposes intended, it might be said, without impropriety, that this was part and parcel of the perfect deed, and sufficiently manifested the recognition of the writing as a sealed instrument. The distinction, then, between instruments of this character, which can only be effectual as deeds, and a promise in writing simply for the-payment of money, which might be indifferently an obliga
In the case of Smith v. Henning, 10 W. Va. 630, Haymond, Judge, in delivering the opinion of the court, after elaborately discussing this question, and citing the case of Taylor v. Glaser, 2 Serg. & R. 504, and numerous other authorities, says: “In the case at bar the paper writing in question, called the ‘Deed,’ from Jones, the executor, to the defendant,, for the land in controversy, commences, ‘This indenture,’ etc. It is signed by the executor with his name, with a scroll opposite his name, and within the scroll, opposite his name, the word ‘seal’ is written. In this condition the said paper writing was presented to the clerk of the County Court by the grantor therein, and, as presented with the scroll— seal and all — was acknowledged by him before the clerk. •Taking the certificate of the clerk and the whole paper together, it is manifest that the grantor not only acknowledged the whole body of the paper writing, but his signature and scroll as his seal, because the word ‘seal’ was written within the scroll, and also that in acknowledging it before the clerk he acknowledged it as his deed, as was then understood by the clerk, as is manifest from the certificate of said clerk.”
This deed has a striking similarity to the one under consideration — in fact, in every material point it is precisely the same; and, in view of these authorities cited, the paper bearing date the 12th day of July, 1877, and signed by Solomon W. Cosner, and acknowledged before William Rains, justice, and admitted to record by the clerk of the County Court of Tucker county, was the deed of said Solomon W. Cosner to his wife and children for the property therein mentioned. The effect of this conveyance was to confer upon Catherine Cosner the equitable title to the undivided one eleventh part of said land, and to convey to' her ten children the remaining ten elevenths thereof.
It appears that the said Solomon W. Cosner originally owned three tracts of land, containing, respectively, five hundred and twenty four, one hundred and sixty six and one hundred and forty eight acres each, and aggregating
The plaintiffs in the original cause, so far as we can determine from the portions of the record presented, relied almost solely upon the alleged invalidity of the deed from Solomon W. Cosner to his wife and children, which reliance was based on the fact that the seal was not recognized in the body of the instrument. Having determined that this defect was cured by the acknowledgment and recordation, the next question was) as to the effect of the conveyance from the husband to the wife directly, and this question was determined by reference to the case of McKenzie v. Railroad Co., 27 W. Va. 306, where it was held, “a deed from a husband to his wife for real estate, while inoperative and void at. law, is nevertheless valid in equity, and will confer upon the wife a good equitable estate, which, in all cases, will be enforced against the husband by a court of equity.” The wife then took an equitable'estate in'the land, and the children a legal estate.
At the time this conveyance was made, it is alleged in the petition and undenied, that said Solomon W. Cosner was in no way indebted; that the lands conveyed by him to his wife and children were all the lands which he possessed; he has
Having, however, reached the conclusion that the paper executed by Solomon W. Cosner. to his wife and children on the 12th day of July, 1877, was a deed conveying an equitable interest in said lands to his wife, and a fee simple estate to her children, and it being apparent that in this view of the case the said Solomon W. Cosner, at the time of his death, was the owner of no real estate which could be subjected to the payment of his debts, the decree complained of must be reversed, and the cause remanded, with costs.