| Va. | Mar 11, 1915
delivered the opinion of the court.
It appeared upon the trial of this action of ejectment that John W. Ford died seized and possessed of a tract of land in Goochland county containing 346 acres, and left surviving him certain heirs at law. It further appears that M. R. Woodson married two of the daughters of John W. Ford, the first of whom died without issue and the second died leaving a child that survived its mother but a few months. The birth of this child entitled M. R. Wood-son to a life estate in the undivided interest of the child’s mother in the tract of land left by her father. Thus matters stood when the heirs at law of John W. Ford, deceased, entered into the following agreement:
“We, the undersigned, children and heirs at law of John W. Ford (deceased) and all being of lawful age, do hereby constitute and appoint Dr. Robert G. Parrish, J. V. Bowles, Henry John H. Johnson, Wm. R. Johnson and Benj. B. Pleasants to act as commissioners to divide the real estate of which the said John W. Ford died seized and possessed, lying in Goochland county, containing by survey 346 acres, into five equal parts having regard to quality as well as quantity; and shall give unto Mrs. Ann E. Carden her choice of the said lots; and that John T. Ford shall have the second choice of the said lots and that Granville Dug-gins' and S. E. Duggins shall have the' third choice of the said lots and that John Folstead and Pattie R., his wife, shall have the fourth choice in the said lots, and that M. R.*301 Woodson shall have the remaining lot. And we bind ourselves individually and collectively to stand to and abide by the said division, as if made by commissioners appointed by the County Court of Goochland county.
“Given under our hands and seals this 20th day of No-
vember, 1883.
Ann E. Carden, (Seal)
John T. Ford, by J. V. Bowles, (Seal) G. T. Duggins, (Seal)
S. E. Duggins, (Seal)
J. A. Folstead, (Seal)
Pattie R. Folstead, (Seal)
M. R. Woodson, (Seal).”
The division of the land contemplated by this agreement was made November 22, 1883, by the commissioners named therein, one of the lots containing 10914 acres being assigned to M. R. Woodson.
The plaintiffs in this ejectment suit are the heirs at law of John W. Ford, who died seized of the land in controversy. The defendants are the heirs at law óf M. R. Wood-son, by a third marriage, and have no interest in the land in question as heirs of John W. Ford, deceased. The record shows that at the time of the partition in November, 1883, the tract of 10914 acres which was assigned to M. R. Wood-son, in right of his deceased wife, was unimproved, uncultivated and unfenced, and that until his death in 1896 it was rented by him to the husband of one of the heirs of John W. Ford, in consideration of the payment by the tenant of the taxes accruing thereon.
It is manifest that this case proceeded in the lower court upon the theory entertained by the defendants and adopted by the court, that their father, M. R. Woodson took, under the partition agreement mentioned, a fee simple interest in the 10914 acres-of land which was allotted to him by the
In the light of what has been said and the authorities cited, it is clear that the circuit court erred in refusing to instruct the jury, at the request of the plaintiffs, that, under the agreement of November 20, 1883, and the partition made in pursuance thereof, M. R. Woodson took only a life estate in the 109%, acres of land in controversy; and that the defendants derived no title thereto under or by virtue of the interest taken by their father under such agreement. And further the court erred in giving for the defendants, over the protest of the plaintiffs, an instruction telling the jury that the agreement purported on its face to grant to M. R. Woodson a fee simple title to the 109%, acres of land, and that the burden of proof was
It was suggested in the oral argument before this court that M. R. Woodson had inherited the land in controversy from his child, who had inherited the same from its grandfather, the mother having died before her father. It is sufficient to say that there is not a word of evidence in thé record tending to sustain this claim. On the contrary, the record completely negatives any such pretension. If there was foundation for the contention, the burden rested upon the defendants to establish the fact, and yet they have not introduced a word of evidence upon this or any other question in the case.
It is further contended by the defendants that they and those under whom they claim have acquired title to the land in controversy by adverse possession for the statutory period.
■It is clear from the facts already adverted to that M. R. Woodson, who lived Until 1896, did not and could not hold adversely to the heirs of John W. Ford, who were the remaindermen at the expiration of his life estate, which we have seen was the only estate he had in the land. The possession of a tenant for life, as such, cannot be adverse to the remainderman or reversioner, because the right of action of the remainderman or reversioner does not accrue until the death of the tenant for life. It has been so held as to life tenants in right of dower and by the curtesy. 1 Ruling Case Law, p. 743; Hannon v. Hounihan, 85 Va, 429, 12 S.E. 157" court="Va." date_filed="1888-09-20" href="https://app.midpage.ai/document/hannon-v-hounihan-6808207?utm_source=webapp" opinion_id="6808207">12 S. E. 157.
It follows from what has been said that the circuit court erred in refusing to instruct the .jury, at the request of the plaintiffs, that the defendants could not tack their holding of the land in question on to the holding of M. R. Wood-son or his tenants, in order to make out an adverse holding for the statutory period.
“In questions of adverse possession a higher degree of proof is required in those cases in which the possession was begun in privity with the opposing claimant than in cases where no such relation existed. Where possession is originally taken and held in subserviency to, or in privity with, the title of the adverse claimant, a clear, positive and continued disclaimer and disavowal of the title and an assertion of an adverse right brought home to the adverse claimant, are indispensable before any foundation can be laid for the operation of the statute of limitations. If this were not so, the greatest injustice might be done. Without such knowledge, the adverse claimant has the right to rely upon the fiduciary relations under which the possession was originally taken and held.
“In such cases the statute of limitations does not begin to run until the possession, before consistent with the title of the adverse claimant, becomes tortious and wrongful by the disloyal acts of the party in possession, which must be so open, notorious, and continued as will fully and clearly show such change on the part of the adverse claimant. 2 Minor’s Inst. (4th ed.) ; Zeller’s Lessee v. Eckert, 4 How. 289" court="SCOTUS" date_filed="1846-02-18" href="https://app.midpage.ai/document/zellers-lessee-v-eckert-86371?utm_source=webapp" opinion_id="86371">4 How. 289 [11 L. Ed. 979]; Stonestreet v. Doyle, 75 Va. 356" court="Va." date_filed="1881-03-10" href="https://app.midpage.ai/document/stonestreet-v-doyle-6806776?utm_source=webapp" opinion_id="6806776">75 Va. 356 [40 Am. Rep. 731] ; Pillow v. Southwest Virginia Imp. Co., 92 Va. 144" court="Va." date_filed="1895-09-26" href="https://app.midpage.ai/document/pillow-v-southwest-virginia-improvement-co-6809377?utm_source=webapp" opinion_id="6809377">92 Va. 144 [23 S. E. 32, 53 Am. St. Rep. 804] ; Newell on Ejectment, page 767.
“The record shows that the widow and her son, John Hulvey, have been in exclusive possession of the land since the death of John Hulvey, Sr., taking the issues and profits, which were insufficient to support the widow, paying the taxes, keeping up the fences and getting timber for the fencing and for fire-wood therefrom. These acts are not*305 sufficient in themselves to show that their holding was adverse. Lagorio v. Dozier, 91 Va. 492 [22 S. E. 239]; 1 Washburn on Real Prop., 566-7 (3d ed.).”
These observations apply with much force to the facts of the case before, us, where the possession was originally taken and held by M. R. Woodson in privity with the title of the adverse claimants.
As this case must, for the errors already pointed out, go back for another trial, we deem it unnecessary to deal further with the instructions, some of which are admitted to be erroneous, and others are wholly inapplicable to the facts shown in the present record. Nor would it be proper to comment upon the evidence relied on as showing adversary possession in the defendants.
The judgment complained of must be reversed, the verdict of the jury set aside, and the case remanded for a new trial not in conflict with thé views herein expressed.
Reversed.