118 Va. 81 | Va. | 1915
delivered the opinion of the court.
The hill in this case was filed by Elizabeth S. Jefferies, asking for the partition of a tract of land containing fifteen acres between herself and Gr. M. Dillard and others, who were in possession and claiming the fee in the whole tract. The circuit court held that the complainant was entitled to maintain her suit and to have partition of the land in controversy. From that decree this appeal has been taken.'
The record shows that by deed dated July 11, 1871, John S. Moon and wife conveyed a tract of land, of which that in controversy is a part, to John O. Lewis as trustee for the benefit of his wife for life, and at her death the same to he divided among his children equally and their descendants who should take per stirpes. John O. Lewis was twice married. By his
We are of opinion that the demurrer to the bill was properly overruled. The tenancy in common of the complainant with the defendants appeared from the allegations of the bill, and if those allegations were established, the complainant was entitled to the relief asked.
We are further of opinion that there is no merit in the contention that the decree of March 8, 1913, was the binding law of the case from which the complainant failed to appeal, and cannot now question that it was the correct solution of the case. Plea Uo. 1 of the defendants alleged that the court was without jurisdiction to entertain the bill, that the title claimed by them was adverse, and that the complainant and those under whom she claimed were not tenants in common or coparceners with the defendants. The decree mentioned of March 8, 1913, after stating that the court must determine from the facts in each case whether jurisdiction should be assumed, overruled the
The defendants further contend that the circuit court erred in holding that the complainant owned an interest in the land in controversy, and that she was a tenant in common with the defendants and entitled to maintain her suit for partition.
To show the fallacy of the contention that complainant owned no interest in the land in question, it is only necessary to refer to the deed of July 11, 1871, under which the complainant holds title, which conveys the land to John O. Lewis as trustee for the sole use and benefit of his wife, Sallie O. Lewis, during her life, and after her death he shall divide the same among his children' equally and their descendants, who shall take per stirpes. This language is unambiguous and too plain for interpretation. By no reasonable construction can such language be held to exclude the child of John O. Lewis by his first wife. The words his children and their descendants necessarily include his child by his first marriage, who was complainant’s mother, and being the only heir of her mother, she takes under the express terms of the deed her mother’s interest. But the defendants contend that the failure to use language to exclude-the child by the first marriage was an inadvertence of the draftsman of the deed, and that the language, “his children,” had since been interpreted by the parties to mean the children of John O. Lewis by his second marriage. There is nothing in the record to show that the complainant ever placed any such interpretation upon the language or ever consented to any such
“A party having a just claim, to invoke the'jurisdiction of that court upon equitable grounds, must exercise reasonable •diligence in the assertion of his demand. If by laches injustice may be done the court declines to interfere. Anri this principle is justly applied to bills to reform contracts on the ground of mistake as to other cases.” Carter v. McArtor, 28 Gratt. (69 Va.) 356, 364.
In the case at bar the alleged mistake is not established, and the principal parties to the deed in which the mistake, if any, occurred are now dead and the correction which is now demanded could not be made without risk of doing the complainant the greatest injustice.
With respect to the contention that the complainant was not •a tenant in common with the defendants and, therefore, was not entitled to maintain this suit for partition, we are of •opinion that the circuit court properly held to the contrary.
The defendants further contend that they hold adversely under a deed which purports to convey them the whole of the land in controversy, and, therefore, a suit in equity for partition does not lie, and that an action of ejectment is the proper remedy. This contention is contrary to the view taken by this court in several cases. Pillow, &c. v. Southwest Va. Imp. Co., 92 Va. 144, 23 S. E. 32, 53 Am. St. Rep. 804; Morgan v. Haley, 107 Va. 331, 58 S. E. 564, 13 L. R. A. and others (N. S.) 732, 122 Am. St. Rep. 846, 13 Am. Cas. 204.
In Pillow v. Imp. Co., supra, it is said: “Of course, a partition suit cannot be made a substitute for an action of ejectment, and if the defendant in such suit does not claim under any one who was. a joint owner, such as a coparcener, joint tenant, or tenant in common with the complainant, or those under whom he claims, then it is clear that such suit would not
And in Morgan v. Haley, 107 Va. 381, 58 S. E. 564, 13 L. R. A. (N. S.) 732, 122 Am. St. Rep. 846, 13 Ann. Cas. 204, supra, the court says: “It is quite true, as argued, that a suit for partition under the provisions of section 2562, Va. Code, 1904, cannot be made a substitute for an action of ejectment (Pillow v. Southwest Imp. Co., 92 Va. 144); but it is equally true that a court of equity has jurisdiction to partition land under some circumstances, although the defendant claimtitle to the whole tract, where he (or those under whom he claims title) was a joint owner with the complainant, or those under whom he claims title. See Pilow v. Southwest, etc. Imp. Go., supra.”
The cases of Johnston v. Va. Coal & I. Co., 96 Va. 158, 31 S. E. 85, and Preston v. Mining Co., 107 Va. 245, 57 S. E. 651, relied on by defendants, are not in conflict with the decisions we have cited. In those cases, if the relation of tenant in common between the parties was ever established, it had ceased to exist, and the stranger who bought and took possession of the whole tract had acquired his superior and wholly independent title by reason of his adversary possession for the statutory period. In the instant case, the defendants contend that complainant’s claim of an interest in the land was barred by their adverse holding for the statutory period. At the time (September, 1896) that the defendants bought from complainants’ cotenants, she was an infant under twenty-one years of age. She had ten years from the time she became of age in
The defendants having no title by reason of their adversary possession, and the parties, plaintiff and defendants, being still tenants in common of the land in question, the complainant clearly had the right to maintain this suit for partition.
There is no error in the decree appealed from, and it is affirmed.
Affirmed.