85 Va. 429 | Va. | 1888
(after stating the case), delivered the opinion of the court.
We come now to consider the several points involved in this appeal. It is undeniable that the evidence positively proves that the appellants were, at the time of the death of James Hannon, the nearest of his blood kindred, and that Patrick was a naturalized citizen, and John O’Mel and his sister, Mary G-ilmartin, children of Johanna, who was not naturalized, were born in the State of Illinois, and were in being at the time of the death of James Hannon. And it is clear that they were capable to take, as his lawful heirs, any property whereof he died absolutely possessed, or seized in fee.
This court, in Commonwealth v. Towles, 5 Leigh, 806, expressly decided that a person born in another State of this Union is entitled to all the rights and privileges of this State. Indeed, such is both the spirit and letter of the Federal constitution. See also, 1st Tuck. Com. 57; 1st Minor’s Inst. 130. And the doctrine prescribed by our own statute is, that children born in this State can inherit through living alien ancestors. Hence it follows that, if children born of alien parents residing in this State can inherit real estate here, such children, born in Illinois, may do the .same in Virginia. 1 Lomax Dig. pp. 92, 584-5; Jackson v. Saunders, 2 Leigh, 108. It is, therefore, manifest that Rosanna Hannon could not inherit the property in controversy as the heir of her deceased husband, James Hannon, because, at his death, he had blood kindred who were capable of inheriting and whom the law prefers to her; and thus one of the grounds upon which her devisees base their claim, is wholly removed.
On behalf of the appellees, it is also insisted that there was
It cannot be seriously pretended that such testimony proves the alleged ante-nuptial contract. For is McAleer’s evidence aided by that of the witness, Kurtz, who says: “ I heard them both talk about the property. Well, she said it was her property and that she wanted it fixed in her name, and he said that he also wanted it fixed in her name.”
Whatever was, or may have been the inclinations of one or both of them, the unyielding fact remains—the property was never e: fixed in her name,” if by •such expression was meant conveyed by deed to her, or for her benefit. Indeed, it is not pretended that the alleged contract was ever reduced to writing ; but it is claimed that a parol ante-nuptial contract will be enforced at the instance of either party, when satisfactorily proved. Just here lies the trouble; and as the alleged contract in this case is not satisfactorily proved, it will suffice to dismiss the subject with a mere reference to the statute, § 1, ch. 140, Code 1873, where it is declared that “ any agreement made upon the consideration of marriage ” is invalid unless the same be in writing, etc. And there could be no departure from the statutory rule
It is also insisted that James Hannon made the cash payment with his wife’s money, and that there was clearly a resulting trust in her favor. The most careful search of the record fails to disclose any evidence whatever of this claim. For outside of the mere statements of witnesses that she said so, there is nothing that tends in the least to uphold this contention; and it is plain that her self-servient declarations cannot he adduced as evidence in behalf of her devisees. But this money of Mrs. Hannon was the money which she acquired as widow and distributee of her first husband, Critchard. She possessed no separate estate in that money. It became the property of James Hannon, jure mariti, so soon as he laid hands on it. And if with this money he paid for the property in controversy, he invested therein his own, and not his wife’s money.
The appellees, in their bill, did not expressly set up the bar of the statute of limitations to the right of entry, or the right to recover, of the heirs of James Hannon. But they say in their bill that James Hannon had died intestate, leaving surviving him no blood kindred either in this country or in his native land; that his wife, Rosanna, was his heir-at-law; that as such heir-at-law she held possession of the house and lot from the death of her husband to the time of her own decease, continuously, openly, notoriously, and hostilely; and that since her death the appellees had, under her will, held similar possession. And it is very likely that the decree of the court below was
After careful examination of the authorities and consideration of this point, we have arrived at the conclusion that the decree of the circuit court cannot be sustained even on that ground. As we have seen, the bill does not declare that Mrs. Hannon held possession under any claim founded on the alleged ante-nuptial contract, or upon the alleged resulting trust created in her favor, it is said, by the use of her money in the payment of the purchase price of the property, but solely on the pretence that as James Hannon had died intestate without any blood kindred capable of inheriting real estate in Virginia, Mrs. Hannon was his heir-at-law, and held possession as such heir. This claim is founded upon the tenth section of the statute of descents, which prescribes that: “If there be neither maternal nor paternal kindred, the whole shall go to the husband' or wife of the intestate.” It is obvious, therefore, that the statute affords no sufficient aid to the contention.
Nor can it be seriously contended that such a claim, or such a possession, is adverse and hostile to the claim of the heirs of the higher class in the course of descents, as it is plainly founded on the mistaken supposition that no heirs of such higher class existed, and was in manifest subordination to the claims of that class if it turned out that any such did exist. See Oode 1873, ch. 119, § 1.
At the death of her husband the possession of the property in controversy devolved upon the widow, Mrs. Eosanna Hannon, and she continued in possession on the supposition, though an erroneous one, that she was his lawful heir;—not adversely, but in subservience to the superior claims of his blood kindred, should any such present themselves. This she claimed in 1869, in the deed conveying, in conjunction with the trustee, Cochran, a strip of the lot to Arthur, which was sold in order that the proceeds might go on the unpaid purchase-money.
How, it is an elementary principle that, “when a party is in actual possession, and has a right to the possession under a legal title, which is not adverse, the possession will not in law be deemed adverse.” 2 Starkie, 657; Doe d. Milner v. Brightman, 10 East, 583, a case very similar to the case at bar. In that case the property belonged to Lady Harwood, who died without issue, leaving her husband surviving her. He had the property for a period equal to the bar of limitations had his possession been adverse. There had been a settlement whereby the property was limited, upon failure of issue, to the survivor in fee. Issue failed. Lord Harwood survived. He claimed under the settlement. After his wife died he had levied a fine, and applied to be admitted as a tenant of the court rolls, the land being copy-hold, and was admitted accordingly to hold the land in fee. But Lady Harwood was a minor when the settlement' was executed, and hence it was invalid. He was entitled to possession during his life as tenant by the curtesy. Her heirs claimed the land. His heirs claimed it on the ground that her heirs were barred by the statute of limitations. The question was, whether his possession was adverse to her heirs, and upon its decision the case hinged. The court decided that the possession was not adverse. The parallelism of that case and this is obvious. Lord Harwood, in that case, held possession, claiming to hold in fee, though in law only entitled to hold for his life as tenant by the curtesy. In this case Mrs., Hannon held possession, claiming to hold in fee, though in law entitled to hold only for her life as
It is a settled principle that the possession of the tenant for life, during the continuance of such life estate, will not bar the remainderman, though the tenant for life may claim an estate longer than for life, the possession of such life tenant and of those claiming under him being not adversary to, but consistent with and in support of the title of him in remainder. See Ball v. Johnson, 8 Gratt. 285; Hope v. N. & W. R. R. Co., 79 Va. 283. In the last-named case G., in 1851, conveyed to the company the right of way. through the land held by her as dower. At her death, Hope, the remainderman, brought his action for the land. The defendant company pleaded the statute of limitations. The court held that the statute afforded no bar to the action. It seems equally well settled that where one enters into possession under a lawful title to a particular estate in the premises, he is presumed to continue to hold possession under that title until he commits some notorious act of ouster or adverse possession, which is brought home to the knowledge and notice of those entitled either with or after him. In Caperton v. Gregory, 11 Gratt. 505, Thompson claimed the property under an alleged will, giving it to him exclusively, and took possession of the whole of it, and denied the title of the other coparceners, hut they had full notice thereof And so in Layne v. Norris, 16 Gratt. 243.
In Sedgwick and Waite on Trial of Land Titles, § 283, it is said: “The adversary possession sets running a limitation, which in the end may operate as a bar. It does so only upon the theory that the party disseized has slept upon- his rights, and by his silence and inaction has waived them. The rule is just if the ouster or adverse possession is brought home to the knowledge of the owner, or is of such definite, hostile and public character that such knowledge may be fairly presumed, that is unjust and unreasonable if enforced without such limitation-
It is undeniable that in the case here there is not one of these essential elements. Here the next of blood kin of the intestate resided in different States distant from the city of Staunton, intestate’s home, and were humble in condition, ignorant of the circumstances, and almost entirely illiterate, and have even been misled by false information. So far from being guilty of laches in asserting their rights, they were wholly unaware of the very existence of those rights. Laches, it has been held by this court, cannot be imputed to one who is ignorant of his rights.
And would it not be a strange and hard construction of the law to hold that one, who was in possession under a limited right, could be allowed to claim, unknown to the true owners, the entire estate, and then to defeat that claim upon the plea of having held the same under such adversary possession for the period which barred those true owners ? That such a construction would be unjust, harsh and oppressive, is too obvious to need more than to state the proposition.
We confess that these views, which lead necessarily to a result opposite to that arrived at by the court below, have been reached only after a most careful and painstaking investigation, and, with reluctance, on account of prepossesions favorable to the claim of the devisees of Mrs. Hannon, induced by the peculiar circumstances of the case, she being the evident source of the purchasing power, it being through her that her husband acquired the means with which he made the purchase of the property in controversy. But the law, by virtue of her marriage with James Hannon, gave him those means, and he made the purchase in his own name, and took the title to himself, as he had the right to do ; and his widow acquired no more or further right than as his widow and dowager by her long and uninterrupted possession of the whole of the property whereof she was legally entitled to only a part. The law is so written, and it must prevail. For these reasons we are of opinion that
Decree reversed.