Edwards v. Chilton

| W. Va. | Jan 15, 1870

Maxwell, J.

The first ground of error assigned is, that Chilton’s title to the land in controversy was fatally defee-tive, because of the absence of any partition deed between the heirs of William Cobb, deceased. An agreement in writing was entered into on the 20th of April, 1844, by the heirs of the said William Cobb, deceased, to partition among them.certain of the lands owned by him at the time of his decease, in pursuance of which agreement a deputy surveyor of the county in which the land was situated, made a plat and report dividing the land between them, according to the agreement. A certain lot of 706 acres was, by the said report, laid off to Alexander Cobb, who was one of the heirs, and from whom Chilton derived title. The proof in the cause shows, that immediately after the said partition was made, the said Alexander Cobb took actual possession of the land allotted to him, and has held the same, by himself and those claiming under him, to the time of the sale by Chilton to the complainant, and although no deed of partition appears to have been made between the said heirs, yet the continuous possession so held is sufficient to perfect his title against the other heirs. The Piedmont Coal and Iron Co. v. Green, 3 W. Va. Rep., 54. The bill does not even charge that the other heirs, or any of them, set up any claim to the said land. There can b§ nothing then in the first assignment of error.

The second ground assigned as error is that, the title of said Chilton to said land was fatally defective, because of the conveyance of the land by Alexander Cobb to A. W. Quarrier as trustee, prior to his conveyance to the grantors of said Chilton. It appears that Alexander Cobb, by deed of trust bearing date on the 6th day of September, 1841, conveyed certain lands in the said deed described to Quarrier, to secure to Atkinson the payment of a debt then due by judgment for 133 dollars and 98 cents, with interest. It was more than twenty years after this deed of trust was executed before the bill was filed by the complainant, and it must be presumed that after such length of time the debt secured by it had been paid, especially as it is not charged in the bill that it is claimed to be unpaid, or that the creditor threatens to cause the land to be sold under the trust.

The third cause assigned as error is that, the title of Chil-ton to said land was ■ defective, because of his failure to procure the relinquishment of dower of Mrs. Polsley and Mrs. Connell. It is averred in the bill that the land sold is covered by a title elder than the Cobb title, called the Smith title, and that Polsley and Connell claimed that title and conveyed such title as they had to said Chilton. There are at least two good and sufficient answers to this objection, the first of which is, it is not averred that either Polsley or Connell has a wife who is entitled to dower in the land; and the second is, that the continuous possession under the Cobb title would bar the Smith title, though it may have been originally the better title.

The fourth and last cause assigned as error is that, the court erred in not rescinding the contract of purchase from Chilton, after so many and so glaring defects of title were made apparent, and so many delays on Chilton’s part in perfecting the same. This assignment of error is founded upon the supposition that the other causes assigned as errors exist, and must consequently fail with them.

The decree complained of will have to be affirmed, with damages and costs to the appellees.

The other judges concurred.

Decree arrirmed.