66 W. Va. 252 | W. Va. | 1909
Solomon Peck died owning a lot of land of one-fourth acre in Addison, now Webster Springs, Webster county. It is said that Duncan McLaughlin conveyed it to him by deed 30th October, 1860; but that deed is not forthcoming, not on record, and there is no proof of Peck’s ownership. Still, for the purposes of this case, under the pleadings, we will say that Peck did own it. He died leaving his mother, Anna Peck, and two sisters as his heirs. One of the sisters was Eliza Currenee, another- Beverage. By deed dated 10th December, 1877', Anna Peck conveyed to P. F. Duffy her third interest in said lot. Under date of 8th April, 1890, Eliza Currenee, wife of Abraham Currenee, executed a power of attorned giving A. C. Minear power to sell and convey her interest in the lot. This power of attorney authorizes the conveyance of her interest. The husband is not named in the body of the power, but he signed and acknowledged it. Under this power of attorney Minear, by deed 28th August, 1890, conveyed Eliza Currence’s interest in the lot to P. H. Townsend. Eliza Currence’s husband is not in any wise a party to this deed, and it is the deed only of Eliza Cux-rence made by her attorney in fact, Minear. By deed dated 16th April, 1880, P. F. Duffy conveyed to Elizabeth Curry a tract of land in and adjoining the town of Addison, and includ-
ELIZA CGRRENCE SHARE.
The bone of contention in this case is in the question, Who owns the Eliza Currence third? Does Dorr own it, or does Hamrick own it ? Each asks a partition which shall assign him that third. Does Benjamin Hamrick own it by paper title? He does not. His paper right rests on a power of attorney made by Eliza Currence, a married woman, 8th April, 1890, empowering Minear to sell and convey her third. At the date of that power a married woman could not make a power to enable her agent to convey her land. She had not the power of a single woman, and could convey only by her will or deed by her own hand acknowledged as prescribed by Code, chapter 13. Shanks v. Lancaster, 5 Grat. 111, 118; In re Anderson, 23 Fed. R. 485, 488. Thence it follows that the deed from Minear as attorney in fact, conveyed nothing to Townsend. Likely the first act authorizing a married woman to execute such power
Has Dorr paper title to the Eliza Currence third? He presents an original deed from Abraham Currence and his wife, Eliza Currence, to him) for this third. Is it valid as to the wife ? It is claimed that because the certificate of acknowledgment omits the words, “whose names are signed to the writing above”, the deed is bad. First, we must note that Eliza Currence having married Abraham Currence before 1st April, 1869, and Solomon Peck having died before that date, Abraham Ciirrence has a life estate, and that life estate was passed to Dorr by the deed of Currence and wife to Dorr, without acknowledgment. ' So, Dorr would have right to participate in the partition and hold this Currence third until Abraham Currence’s death. A life tenant may have partition. The decree is erroneous in denying Dorr this life tenant right. But has Dorr the remainder in fee of Eliza Currence after her husband’s death? The statute, Code, chapter 73, section 4, prescribes in the form those words. Are they, or their equivalent indispensable? This is a matter of substance, not mere form. This certificate does not identify the Eliza Currence as the same Eliza Currence who signed the deed. If this is not so, then it is not Eliza Cur-rence’s deed, since a married woman’s deed without acknowledgment is of no force. The statute prescribes a form having those words, and those words are the only ones that identify the person. The statute intends that the officer shall certify that the woman acknowledging is the same who signed the deed. It intends that the officer from his own knowledge of the person, or
It is argued that Hamrick did.not rely upon this defect in the lower court in pleading, and cannot do so in this Court. We are cited to cases such as Shenandoah R. Co. v. Dunlap, 84 Va. 349, Mundy v. Vawler, 3 Grat. 518, and others, saying that a court can only decree upon matter in the pleadings.' Granted; but -this matter is in the pleadings. Dorr’s petition alleges that Currenee and wife conveyed to him by this deed, and alleges ownership under it. Hamrick’s answer denied such ownership and conveyance. This raised the question of Dorr’s title, and called on him to prove it and he does so by this deed, which fails because of ihvaliditv.
ADVERSE POSSESSION.
' Can Hamrick hold under the statute of limitations ? Assuming what is by no means clear, that the acts of Townsend were such as to constitute adverse possession, and continued for the statutory period, can they operate as adverse possession? He says that he occupied the lot “openfy, notoriously, visibly and uninterrupted”. • That is only his opinion. He must give facts. He does sa,y that he let Conrad erect a small building for a pic"ture gallery and lemonade stand, and had street lamps and some lumber piled on it. No firoof of continuance. No proof during S. B. Hamrick’s ownership. In fact, Hamrick’s evidence goes to show that the little lemonade stand had disappeared when he got his deed,' as he says there was some lumber piled on the lot, thus not speaking of the little building, although asked who Was'in possession at'the date of his deed. The lot
ADVERSE POSSESSION AS TO ELIZA CURRENCE.
Is it necessary to say that the statute could not effect her until after the death of her husband ? He having a life estate for his own life her right of entry did not accrue until his death, and she could not sue till then, and hence the statute can give Hamrick no right as to her. Arnold v. Bunnel, 42 W. Va. 473; Merritt v. Highes, 36 Id. 356; Laidley v. Land Co., 30 Id. 505. We conclude that the remainder in fee after the death of her husband remains yet in Eliza Currence in her third, because the deeds to Townsend and to Dorr are inefficient to pass her right.
It may be that a reason actuating the circuit court in dismissing Duffy’s suit and Dorr’s petition was that the lot was forfeited for omission from the tax books. Whether so or not we do not say. The theory for this contention is, as I suppose, that forfeiture takes away title and that those who ask partition must have title, and if they have parted with it they cannot get partition. But the question really does not arise for the simple reason that nobody raises the question of forfeiture but the Bennetts, and they claim no share in the lot or right to participate in its partition, and cannot raise this question.
Hamrick would impeach Dorr’s purchase of the Currence share on the ground that when Hamrick was thinking of purchasing that share Hamrick asked the advice of Dorr as an attorney at law as to the safety of purchasing said share and building a house on the lot. Hamrick’s testimony as to this is that Dorr replied that any improvement that Hamrick should put on the lot could not be taken without paying for it, and that the lot was undivided and when divided if Hamrick should get the most valuable part he would have to pay the others to make the others up equal and that it was a safe purchase. Another witness states that Dorr told Hamrick to go ahead and buy the lot and build, and that S. B. Hamrick owned the lot. Upon this-evidence Hamrick’s counsel contends that the relation of client and attorney existed between Dorr and Hamrick, and that
AS TO THE ANNA RECK AND BEVERAGE INTEREST.
The court below dismissed Duffy’s bill and Dorr’s petition without relief by partition as to these interests. . Dulfy and Dorr unquestionably owned them. Duffy may have deprived himself of a small portion of his interest in the lot in his deed to Elizabeth Curry; if so, his interest would abate to that extent. Nobody claims the Anna Peck and Beverage interest aganist Duffy and Dorr. They are entitled to have those interests allotted to them in fee.
AS TO THE BENNETTS.
They claim nothing outside the land^ seventeen and one-half acres, including lot No. 1, (not the lot in controversy) conveyed to Elizabeth Curry, 16th April, 1880, by P. F. Duffy. Their land has since that deed been in actual, exclusive, adverse possession, and they cannot be affected as to any of their land within the bounds of that deed, whether a part of the Peck lot is in it or not. I need not detail evidence as to this possession. The Bennetts claim no part of the Peck lot, unless some of it is in Duffy’s deed to Elizabeth Curry, which Bennetts deny. Duffy’s bill made Townsend, under whom Bennetts claim, a defendant, not bceause of his claim under Elizabeth Curry, to the seventeen and one-half acres, but as a co-tenant of the Peck lot because of Townsend’s claim to the Currence third of it. If even any of the Peck lot be within the bounds of the seventeen and one-half acres, but it is not, the Bennetts could hold it by adverse possession. That is one reason why they must be dismissed from this suit. Another reason is, that it is not proven that any of the Peck lot is in the bounds of the deed from Duffy to .Elizabeth Curry. The Bennetts deny that it is. True, Townsend’s answer to Duffy’s.bill says that it is within those bounds, and generally an admission of a predecessor in title is admissible against a privy as his successor in title; but at the date of that answer that matter was not in issue’. Duffy’s bill did not claim such to be the fact. And certainly that admission is not conclusive. Another reason why the Bennetts must be dismissed
Our decree will be to reverse the decree of the circuit court with costs to Dorr and Duffey’s against' Benjamin Hamrick in this Court. And to dismiss Dorr’s petition as to W. G-. Bennett and Louis Bennett with costs to them in the circuit court, as Dorr’s petition alleged that a part of the Peck lot was in their tract, and made them parties and compelled them to answer. And. we remand the ease to the circuit court for further proceedings according to the principles stated in this opinion.
Benjamin Hamrick’s children file a petition for re-hearing, claiming that the interest of Eliza Currence was forfeited for non-entry for taxes, and that Hamrick having paid taxes under-assessment in his name gets the- benefit of forfeiture. In the first place Hamrick does not directly allege any forfeiture; but in his answer says that if there is such forfeiture as.Bennetts allege, he claims its benefit under section 3> article 13 of the Constitution. It is quite doubtful whether this is adequate' allegation of forfeiture. But waive that. The reply is that no forfeiture is established. Evidence not sufficient. Brief of counsel for Hamrick states that for the years 1891 to 1904, both inclusive, tax charges were made on the lot by fractions to the names of Townsend, the two Hamricks, Dorr and Duffey, covering and paying taxes for whole, and asserting that Currence and ■wife were not charged for those years. How do we know they were not ? But suppose they were not, payment by Tównsend and Hamricks was made on title derived from Currences, not under a
Reversed and Remanded.