| W. Va. | Jan 15, 1868
A verdict and judgment having been recovered in a writ of right by the demandants Ingersoll and Milbank, against the tenant Genin and others, who were about to move for a writ of error to reverse the same, the demandant Ingersoll being advised by his counsel that the same would be reversed, and that he had better compromise with the adversary, bought the claim of the tenants and took their conveyance to himself, and then obtained a super-sedeas to the said judgment in the name of his vendors.
The other demaudaut, Catherine A. Milbank, moved this court to dismiss the supersedeas upon 'the ground that the tenants having parted with the subject of controversy after judgment have no interest in the pending cause, and also that Ingersoll. one of the demandants, being the purchaser, cannot maintain a writ of error to reverse a judgment in his own favor.
Had the conveyance been to any one else than the deman-dant the grantee might have used the name of the grantor to reverse the judgment, which countervailed his claim to the land, for the same reason and with as much propriety as the holder of a note or bond made assignable by statute, may sue at common law in the name of the payee, nor would the payee, whose name is thus used, be allowed to come into court and dismiss the suit.
Had Ingersoll, the purchaser from the tenants, been the only demandant he could not maintain the writ of error to reverse his own judgment, for then there could be no controversy but with himself, nor right nor claim to controvert but in himself. But inasmuch as he has the better title in
I think, therefore, that the purchaser, Ingersoll, had a right to prosecute this writ of error in the names of his vendors, the tenants, and that the motion to dismiss the super-sedeas should be overruled.
The President, on the merits, said: The lauds in controversy were granted by the commonwealth of Virginia on the 24th day of June, 1789, to Isaac Hillard, of Connecticut. He, on the 9th day of February, 1793, conveyed a moiety thereof to Nathaniel Delevan, of New York, who, on the 8th day of August, 1794, conveyed the same moiety to Daniel Delevan, of New York, who, on the 23rd day of February, 1796, conveyed the same to Bobcrt Whiting,- of the city of New York, who, on the 6th day of April, 1797, conveyed the same moiety to Helena Willett, of New York. Thus according to the decision in the case of Robinett vs. Preston’s heirs, 2 Rob., the said Helena Willett and the said •Isaac Hillard were seized of equal undivided moieties of the said lands as tenants in common, and so continued till the 25th day of’April, 1808. As early as the year 1800 one John Clark entered and occupied the land under some agreement with Isaac Hillard. He was succeeded in 1805
In this state of the ease, Isaac Hillard, on the 25th day of April, 1808, made a deed to his son Thurston Hillard, of Hew Jersey, purporting to convey not an undivided moiety only, but the whole of said land in entirety. The validity of this deed is not controverted so far as it operated to convey the moiety of said land, then owned by Isaac Hillard, but it is assailed as inoperative and void as to the other moiety and as to the owers thereof. It is sought, however, to be sustained on the ground that as the deed from Isaac Hillard to Hathaniel Delevan, and the consecutive deeds to the parties respectively deriving title under him, not having-been recorded' in Virginia as required by law, the said Thurston Hillard is a purchaser for valuable consideration without notice. But I think the evidence justifies the conclusion that the said deed was without valuable consideration, and was also taken with notice, for the possession of the co-tenants by their common tenant resident on the land at the time, was notice sufficient.
The deed to Thurston Hillard eonveyed only a moiety of said land to him, and was void as to the other moiety, and-as to Helena Willett, the owner thereof. And the said Thurston and Helena thereby became thenceforth tenants in common and the tenant Hubbs resident on the land the
But this doctrine in its application here is to be modified by the circumstances of the case, and another well settled principle of law, viz: that when a party obtains the possession from another’s tenaut, he, himself, becomes that other’s tenant, nor will he be heard to set up title or possession in himself adverse to that under which he entered. He must first restore the possession thus acquired and then assert his adverse claim, or if he would make his possession adverse, he must bring home notice of his adverse claim and holding under it to the landlord or co-tenant, or he must actually oust the co-tenant. Nothing short of this will do, and until it be done no adversary possession will begin upon which to base the bar of the statute of limitations nor to defeat the operation of a conveyance made by the other co-tenant; and applying this principle to the case at bar, Charles Hillard, by re-letting the common tenement to the common tenant, did not oust his co-tenant, Willett, and cannot be heard to hold under adverse claim till the possession is restored or notice of the adverse holding brought home to the other co-tenant, neither of which was done. There was, therefore, on the 19th day of March, 1817, and subsequent, no such adverse possession in the heirs of Thurston Hillard as would defeat the operation of the deed from Helena Wil-lett to Thomas W. Whiting, Edward L. Lawrence and wife, under whom the demandants claim. Charles Hillard gave
lío notice of an adverse holding has been brought home to the demandants, or those under whom they claim, till the institution of the suit. They were residents abroad and had a tenant on the land, who continued on it, and who could not lawfully attorn to another, and whose holding could not be adverse without notice.
I think, therefore, that the verdict was warranted by the evidence, and the court below did not err in refusing to set it aside.
The judgment should be affirmed with costs and damages.
Judgment affikmed.