94 W. Va. 564 | W. Va. | 1923
We are called upon in this suit for the partition of land, to reverse for alleged errors therein several decrees of the circuit court pronounced therein because prejudicial to the rights of the four defendants and appellants, namely, James C. Jarrell, Zella Jarrell, Boyd C. Jarrell, and Anderson Jar-rell. The first two named were made defendants to the original bill, filed Uune 6, 1921; the last two, being sons of the first •two, were brought in and made defendants by an amended bill filed November —, 1921, after commissioners to partition the property had been appointed and had made their report, and which had been excepted to by the defendant James C. Jarrell alone.
At the time the order appointing the commissioners was made, on August 24, 1921, the defendants to the original bill had not answered, and as to them the bill stood taken for confessed. The commissioners reported September 22, 1921, that in their opinion it was not practicable or possible to .divide the land sought to have partitioned, with due regard to quantity, quality and value, for the reason that a part of the property had improvements thereon, and that part of it was bottom land and the remainder hill land. They further reported "that in their judgment the only equitable way said property could be divided was by a sale and division of the proceeds; and finally they reported their appraisement of the property at $5,000.00. On this report James C. Jarrell indorsed three exceptions, namely: (a) that the land was susceptible of partition, either for building purposes or for truck farms; (b) that he had had no notice of the time and place the commissioners would go upon the land to make their investigation as to whether the same was susceptible of partition; and (c) that he had had no notice of the filing of said report until long after it had been made and filed.
Before these exceptions were considered or passed upon the plaintiff had presented and filed its amended bill, and the
The answer of the guardian ad litem for the infant defendant Boyd C. Jarrell is a formal one, simply alleging infancy and tender years, .and praying that the court by reason thereof would not allow any decree which would prejudice his interest.
In the answer and cross-bill of the defendant James C. Jarrell, he denies that the two tracts of land, the one of five acres conveyed by him to the said infant defendant, and the tract of one-half acre more or less conveyed by him to said Anderson Jarrell, were any part of the tract of twenty acres sought to have partitioned, but that they and each of them laid wholly outside of said tract of twenty acres and within the boundary of an adjoining tract owned by him, and that they were never any part of the twenty acres. And referring to the report of the commissioners appointed to divide said land, respondent denied that it was not susceptible of par
By way of matter for the cross-relief prayed for, respondent alleged that on March 21, 1919, which time it will be observed was nearly two years before the filing of the original bill, he and the plaintiff company entered into a written contract, whereby plaintiff agreed that if Jarrell would convey to the Chesapeake and Ohio Railway Company a right of way •of sixty feet through said land, plaintiff would convey its one-third interest in said land to him, a copy of which contract purported to be, but was not' filed with the answer; that he had always been willing and was still willing to convey said right of way, subsequently condemned by it, to said company, whenever the' plaintiff would convey its one-third interest in said land to him; that in said condemnation proceeding there was awarded to plaintiff and others $1,500.00 as damages, of which $1,000.00 would belong to this respondent, and that he was then ready and willing to direct the general receiver of the court to pay to plaintiff the said $1,000.00, and that if there had been paid out any of said money under the order of the court by reason of any suit against him and others, he was now ready and willing to make good all such payments to the omount of $1,000.00, if found by the commissioner to be a just compensation for the land taken for railroad purposes; and he prayed for specific execution of said contract; and his further prayer 'was that the report of the commissioners respecting the partition of said land be set aside, and that plaintiff be required to make, execute and deliver to him an apt and proper deed for its one-third interest in said land,
On the same day the answer and cross-bill was tendered, the canse was brought on to be heard on the report of said commissioners appointed to partition the land with the exceptions endorsed thereon by said Jarrell, and the order of the court then entered shows that said answer and cross-bill was ordered to be filed, and that plaintiff demurred thereto and replied generally to so much thereof as might be taken and treated as an answer to its bills; and the'court took time to consider said demurrer and the exceptions of said Jarrell to the report of the commissioners.
On December 8, 1921, two days before Jarrell filed his answer and cross-bill, the order of that day shows that the court was of opinion that before any sale or partition of the land in kind could be made, it was necessary that the respective interests of the several defendants therein should be ascertained, fixed and adjudicated, and upon motion of the plaintiff, consented to by James C. Jarrell, it was ordered that the cause be referred to George F. Wilson for the purpose of surveying and locating the lots conveyed by said Jar-rell to his two sons; and said Wilson was ordered to go upon the land and survey out and locate said two lots and do such surveying in connection therewith as any of the parties in interest might require, and that he should give notice to the parties in writing of the time and place he would begin the work, and that he should make report to the court thereon at the next term thereof.
The .record shows that Wilson, the surveyor, made his report March 2, 1922, showing, contrary to the representation of said Jarrell in his answer and cross-bill and contrary to his sworn testimony in the cause, that both lots so conveyed to his said sons were within the twenty acres being proceeded against for partition, and showing by his report and accompanying maps the boundaries thereof as located by him. The only exceptions to this report were endorsed thereon by said Jarrell, in substance as follows: First, that it was not filed until March 2, 1922; second, that it 'does not show how much money would go to each of the defendants, and that the report should be recommitted to the commissioners for that
On the day this report was filed, the decree of the court then entered was that plaintiff was entitled to one-third undivided interest in said land, and that the defendants James C. Jarrell, Boyd C. Jarrell and Anderson Jarrell were together entitled to a two-thirds interest therein; that the exceptions of the said James C. Jarrell to the report of the commissioners appointed to partition the land be overruled. And upon the report of said commissioners the court found and decreed that said land was not susceptible .of partition in kind, and thereby adjudged and decreed that A. D. Preston, thereby appointed a special commissioner for that purpose, should proceed to sell the same upon the terms therein specified and report his proceeding at the next term of the court. On the following day an order was entered in the cause permitting Jarrell to file his exceptions to the report of survey by said Wilson, overruling the same, and again confirming the report. The defendant Jarrell gave notice of his purpose to apply for an appeal from this decree, and a stay of •thirty days was given him for that purpose.
On May 20, 1922, Commissioner Preston reported that on May 15, 1922, he had made sale of said land as directed, and that the defendant James C. Jarrell had become the purchaser at the price of $6,000.00; that Jarrell then represented that he would comply with the terms of the sale by paying $3,000.00 on that day, and would complete the sale, but that he had utterly failed to pay any part of the purchase money until May 20th, when he paid him $1,200.00, but had executed no note for the balance, nor made any arrangements to do so; and that on account of the fact that the infant defendant Boyd C. Jarrell and the defendant Anderson Jarrell were largely interested in the land, the commissioner reported that he was unable to recommend that the sale be confirmed unless the terms thereof should be complied with. Whereupon the court on the same day rejected the bid of said Jarrell, set aside the sale, and ordered the commissioner to repay Jarrell the $1,200.00 paid him, and directed the sale to be continued until the further order of the court; and upon the
Wilson, the surveyor and commissioner, after taking some considerable evidence, subsequently reported that defendant James C. Jarrell was the owner of 546/1080 of said tract, Boyd C. Jarrell 165/1080 thereof, and Anderson Jarrell 9/1080 thereof, and that the said James C. Jarrell should receive 1089/3000 part of the proceeds of the sale thereof, Boyd C. Jarrell 896/3000 and Anderson Jarrell 15/3000 thereof. On this report James C. Jarrell endorsed exceptions as follows: First, because all the proceedings had in the cause in relation to the sale of the land since the report of the commissioners that said land was not susceptible of partition, and confirming the same, and the order directing said land to be sold were void; second, that the said report does not show that said Wilson went upon the land and actually made a survey of the land in controversy; and, third, that said report is void because no sale of the land could be decreed at the then stage of the proceedings.
On September 5, 1922, the cause was again brought on for hearing on the prior proceedings and on the report of Commissioner Wilson and upon the exceptions of James C. Jar-rell thereto; when the court confirmed said report, and in accordance therewith adjudged that plaintiff was entitled to one-third of the proceeds of the sale of said land, the defendant James C. Jarrell to 1089/3000 thereof, the said Boyd C. Jarrell to 896/3000 thereof, and the defendant Anderson Jar-rell to 15/3000 thereof, after payment of the costs and expenses of thé sale. And the court’s further decree was that A. D. Preston, the commissioner theretofore appointed, should proceed to advertise and sell said land, deducting however therefrom the right of way therefore acquired by the Chesa
It is from the several decrees aforesaid that the present appeal is being prosecuted. It is apparent from the recital of the proceedings that defendant James C. Jarrell has pursued a very tortuous course and taken numerous inconsistent positions in the progress of the cause.' Of the several grounds of error assigned, the first is that the court erred in not decreeing specific performance of the alleged contract between plaintiff and James C. Jarrell, as prayed for in the said answer and cross-bill. The cross-bill, though filed after the amended bill bringing in the new parties, did not make them parties thereto, nor. pray for process against any of the parties to the suit. It was demurred to by plaintiff, but the demurrer was never acted upon. The contract, though purporting to be, was not exhibited with the cross-bill, and no proof was taken thereon. Evidently, if there was such a contract, its terms are not very definitely pleaded; and manifestly Jarrell had not complied therewith for the railroad company afterwards acquired by condemnation a right of way through the land and paid into court the damages awarded. Besides, Jarrell had previously conveyed' parts of the land to his sons, one an infant, the other an adult, and could not and had not, up to the time of such condemnation proceedings and up to the time he filed his cross-bill, tendered any deed to plaintiff or the railway company for such right of way; and we may infer from his answer that out of the damages paid into court by the railway company, much, if not all, of his share of the damages had been paid out to his creditors; so that owing to the interests outstanding and the lack of pleading and process on his cross-bill, no decree could have been pronounced thereon in his favor. Besides, the record manifests an abandonment of such cross-bill. True, it was not answered by plaintiff, but evidently because of the abandonment and want of equity apparent. Jarrell’s subsequent proceedings and. conduct were wholly inconsistent with any intention on his part to prosecute his cross-bill.
The second and third grounds of error are: (a) the decreeing of partition and the appointing of commissioners therefor without the presence of all parties in interest; (b) the ab
The fifth point of error, that the court failed to ascertain and decree the value of the alleged improvements placed by James C. Jarrell on the land owned by his son Boyd C. Jar-rell, thereby enhancing the value of the land, for which compensation should have been awarded him in any decree of sale or partition. The record shows that before the last decree of sale was made, the cause was on motion of James C. Jarrell referred to a commissioner to report certain facts, and that the commissioner’s report did not respond to every question submitted to him or required of him, and that he did not report the several interests of the parties in the land, and that although James C. Jarrell excepted to the report,
The sixth and last assignment of error urged involves the three exceptions of the defendant James C. Jarrell to the report of the commissioners appointed to partition the land, and three additional reasons assigned for reversing the decree, all to the effect that the land was and is susceptible of partition, and that defendants had no notice of the time when the commissioners would go upon the land nor of the filing of the report until long after it was-filed. So far as these assignments relate to the defendant James C. Jarrell, the record shows that he was present on the ground when the commissioners and the engineer were there. But as we view the case now presented all questions covering this point of error are unimportant, for our conclusion is, for the reasons about to be stated, that the decree of sale and partition must be reversed and the cause remanded, for want of jurisdiction shown in the record justifying a sale of the land as decreed by the court. Partition may be compelled between cotenants, if susceptible of partition in kind, but a sale of the common property may not be decreed without an affirmative showing that the interests of the partitioners will be promoted thereby. Tn this ease the original bill alleged that the land was susceptible of partition in kind, but alleged that if it was not so susceptible, then the plaintiff desired that it be sold and the proceeds divided, and that if the same could not be divided in kind, then plaintiff believed the interests of the' parties would be promoted by a sale and division of the proceeds. The commissioners prematurely appointed before the new de-defendants were brought in by the amended bill, reported that in their opinion it was not practical or possible to divide the property “with due regard to quality, quantity and value, for the reason that a part of the property has improvements on it, part is bottom land and part hill land,” and that “m
Reversed and remanded.