Edmunds v. Pike
118 S.E. 91
Va.
1923
Check Treatment
Burks, J.,

delivered the opinion of the court.

This is an action of unlawful detainer brought by "Susan Pike against Edmunds and Abernathy, to recover possession of a lot in the town of Kenbridge. The case was tried by the court without the intervention of a jury, upon an agreed statement of facts, and certain exhibits filed therewith.

[1, 2] Susаn Pike claims that she is entitled to the property for her life by virtue of a deed made by Christian Rickers, dated January 22, 1913, the material рortions of which are as follows:

“This deed, made this 22nd day of January, 1913, between Christian Rickers, a widower, party of the first part, and Hattiе M. Hinton, party of the second part, both of Lunenburg ‍​​‌‌‌​‌​​‌‌​​​​‌​‌​​​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌‌​​​‌‌‌‌‌‍county, Virginia, and M. E. Pike and Susan Pike, parties of the third part, who shall have what is known as a life right in and to the property hereby conveyed.
*272“Witnesseth: That for and in consideration of the sum of five dollars cash in hand, thе receipt of which is hereby acknowledged; and further valuable considerations, the receipt of which are also acknowledged; the above mentioned party of the first part doth hereby bargain, grant, sell, and convey with general warranty of title unto the party of the second part, her bodily heirs or assigns, and to the parties of the third part for the period of their life, оne certain plat or parcel of land designated and described as lot number twenty-eight in block number fifteen of the town of Kеnbridge, Lunenburg county, Virginia.”

The parties are not agreed as to the proper interpretation of this deed, but we are of opinion that, reading the deed as a whole, it was the intention of the grantor to convey the property to Susan Pike and her husband for their lives and the life of the survivor, with remainder in fee to Hattie M. Hinton, their daughter. The conveyance to Susan Pike and her husband was to a class, and as it is admitted that the husband is dead, Susan Pike is entitled to the property for her life.

In Saunders v. Saunders, 109 Va. 195, 63 S. E. 411, it is said: “Where the gift is to a class and it fails as to one of the class because of death, revocation, ‍​​‌‌‌​‌​​‌‌​​​​‌​‌​​​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌‌​​​‌‌‌‌‌‍or any other cause, the survivors of the class will tаke. 1 Jarman on Wills (5th ed.) 341; Humphreys v. Taylor, Ambler’s Rep. 136; Short v. Gashell, 4 East. 419."

In the agreed statement of facts, it is agreed between the parties “that the title to the lot in question and the right of possession thereto is claimed by the plaintiff by virtue of a deed from Christian Rickers, made the 22nd day of January, 1913, which deed is herеby made a part of this record, as is shown by Exhibit No. 1; that the said Susan Pike, plaintiff, did not, nor has( ever taken actual possession -of the said lot, that her daugh*273ter, Hattie M. Hinton, together with her husband, took actual possession of the said lot. That at the time the possession was so taken, which was immediately after the above deed was made, the said lot was nothing more than a naked and vacant lot, located in the town of Kenbridge, with no buildings or improvements thereon of any kind or description; that the said Hattie M. Hinton and hеr husband did immediately commence to build and erect upon the said lot a hotel and theatre; and that they occupied thе said premises exclusively, continuously and openly until the 20th day of July, 1918.” It is further agreed that during the period between January 22, 1913, and July 20, 1918, Hattie M. Hintоn and her husband gave three deeds of trust upon the property to secure debts, each deed with covenants of general warranty; that the property was sold under these deeds of trust on July 29, 1918, and conveyance made to the purchasers; that the defendant, Edmunds, acquired title under these purchases on the 11th day of February, 1920; and that G. G. Abernathy was a tenant of Edmunds of a part of the рroperty. It is further agreed, “that the said Hattie M. Hinton and her husband claimed title and right of possession of the lot in question by virtue of” the dеed of January 22, 1913, hereinbefore quoted.

[3-5] It will be observed from the agreed statement of facts that Hattie M. Hinton and her husband oсcupied the premises exclusively, continuously and openly fr'óm the date of the deed of 1913 to the day of the sale in July, 1918, but the plaintiff insists that this occupation was ‍​​‌‌‌​‌​​‌‌​​​​‌​‌​​​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌‌​​​‌‌‌‌‌‍not a hostile occupation. The record does not disclose the character оf the occupation otherwise than is set forth in the agreed statement of facts. It is not stated in the facts, but was stated by counsel for the plaintiff in the argument and not denied by counsel for *274the defendants, that the plaintiff is not a resident of this State. It may be that the plaintiff is chargeable with knowledge of the fact that Hattie M. Hinton and her husband placed improvements on the lot, but there is no еvidence that she had any knowledge of the deeds of trust given by them upon the lot, nor was the record of such deeds notice to her; and in order to charge her with such knowledge it was necessary to prove it. Bridgewater Roller Mills Co. v. Strough, 98 Va. 721, 37 S. E. 290. It is true that it is said in the agreed statement of faсts “that the said Hattie M. Hinton and her husband claimed title and right of possession of the lot in question by virtue of” the deed of 1913. This was .nothing more thаn an assertion that as between Hattie M. Hinton and the defendants she based her claim of title and of possession upon said dеed. It was not an assertion that she held adversely to her mother, nor is there in the record any evidence of adverse clаim on the part of Hattie M. Hinton against her mother. The .relations of the parties are such that we must assume that she entered uрon the property by permission.

In 1 R. C. L. 756, section 85, it is said: “As a general rule an adverse possession cannot be predicated on the possession of the parent as against a child, or on the possession of a child as against its parent. * * In order that a possession of the character under ‍​​‌‌‌​‌​​‌‌​​​​‌​‌​​​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌‌​​​‌‌‌‌‌‍consideration may become adverse, the owner must have had some clear, definite, or unequivocal notice of the adverse claimant’s-intention to assert an exclusive ownership in himself. In all suсh cases the'character of the possession is a question-for the jury.”

Under these circumstances, we do not regard the рossession of the daughter as adverse to the right of possession of the mother. The result is that the possession of the plaintiff wаs not ousted until the sale was made on *275July 20, 1918, which was less than three years before the present action was brought on June 12, 1921. It becоmes unnecessary, therefore, for us to consider the doctrine of “tacking” which was so earnestly argued before us.

Having arrivеd at the conclusion that the plaintiff was entitled to a life estate in the property, and that her possession was not ousted until January ‍​​‌‌‌​‌​​‌‌​​​​‌​‌​​​‌‌‌​​‌‌‌​‌​​‌​‌‌‌‌‌​​​‌‌‌‌‌‍20, 1918, it follows that she is entitled to recover the possession of the property, and that the judgment of the trial court must be affirmed.

Affirmed.