85 W. Va. 538 | W. Va. | 1920
The three above styled causes, having been previously consolidated by order of the court, were heard together on June 15, 1918, and the decree therein rendered, from which this appeal was taken by George W. Harman, W. F. Harman, Virginia-Pocahontas Coal Co., the Carter Coal Co., and the R. E. Wood Jjumber Co. The first of said suits was reviewed by this court twice before, reported first in 16 W. Va. 412 and the second time in 80 W. Va. 68. It was brought by Hattie Harrison, one of the twelve children of Henry Harrison, deceased, to have reviewed the proceedings in a suit brought by George W. Harman and D. G. Sayers against the administrator and heirs at law of said Henry Harrison, deceased, and to have set aside, reversed and annulled, in so far as they affected the title of plaintiff, as one of the heirs of Henry Harrison, to certain lands which had been therein sold and purchased by George W. Harman and later confirmed and conveyed to him by W. H. Stokes, special 'commissioner of court, pursuant to its order. The prayer of plaintiff’s bill was granted, and the decrees complained of and the conveyance to said W. F. Harman were set aside so lar as they affected her 1-12 undivided interest in the lands which bad been so sold. This decree was rendered on the 13th of March, 1916. On appeal taken by George W. and.W- F. Harman, the decree was affirmed and the cause remanded. Plaintiff then filed an amended and supplemental bill, making the Yirginia-Pocahontas Coal Co., the Carter Coal Co. and R. E. Wood Lumber Co. parties defendant and prayed for a partition of the land described in her original bill and also in the bill and proceedings in the second of the above mentioned causes. That was likewise a partition suit which was brought in the meantime by the Pocahontas Coal and Coke Co., a corporation, as plaintiff, against W. F. and George W. Harman, and apparently all
Eespondents, the said Harmans, also admit a sale of the timber of certain dimensions on the aforesaid undivided 6-12 inter-' est in the Henry Harrison land, but they insist that the time for the removal thereof has expired and that, under the terms of the contract of sale, there is a reversion of title to the timber to them. But the R. E. Wood Lumber Co. also filed its answer, denying the alleged forfeiture, and setting up, as an excuse for not cutting and removing the timber within the time stipulated, the failure and refusal of the Harmans to have the land partitioned among the joint owners thereof, the timber purchased by it being upon certain undivided interests in the land. This issue, raised by the pleadings between the co-defendants, has not been decided between them, nor has it been directly decided as between the R. E. Wood Lumber Co. and the plaintiff.
The coal mining lease bears date 14th January, 1913, and was acknowledged by the Harmans and their respective wives on the same day and by the Yirginia-Pocahontas Coal Co., by its president George L. Carter, on the 25th day of January, 1913, but does not appear to have been recorded. The Yirginia-Pocahon-tas Coal Co. admits, as alleged in the answer of the Harmans, that it assigned said lease to the Carter Coal Co., subject to the approval of the Harmans.
The Yirginia-Pocahontas Coal Co. and the Carter Coal Co. also filed joint and separate answers to Hattie Harrison’s amend
After these answers were hied, plaintiff filed her second amended and supplemental bill, in which she averred that she had no knowledge of the fact.or time when the aforesaid coal lease was assigned, that neither the lease nor the transfer of it had been placed upon the public records of McDowell County, nor did she admit that it was assigned at the time stated in the alleged assignment, and called for strict proof thereof, and averred that the former company was a lessee; pendente lite, and claimed that its assignee could acquire no greater rights against her than its assignor had, and alleged, as a further reason why it could acquire no greater rights, that the Carter Coal Co. is only the successor of its assignor, that the stockholders and officers in the two companies were and are the same, and that the only purpose in creating the latter company was to change the name of the former. She further averred that she had no knowledge of the claim of th.e E. E. Wood Lumber Co. until it filed its answer; that it was a pendente lite purchaser, having purchased the standing timber on the land in controversy, with full knowledge of plaintiff’s interest therein; that at the time of said alleged purchase there was-pending in McDowell County a suit by Joseph Harrison et als. against said George W. Harman et als., raising the same issues that are involved in plaintiff’s present suit, which she avers was consolidated and heard together with her suit. The Harmans, E. E. Wood Lumber Co., the Virginia-Pocahontas Coal Co. and Carter Coal Co. filed their several demurrers and answers to plain tiff’s second amended and supplemental bill, the court, on the 29th of October, 1917, overruled their demurrers and plaintiff
The consolidated causes were then brought on to be heard together on the 15th of June, 1918, upon the pleadings and exhibits therewith filed, and upon the report of the commissioners filed in the last two of the causes above styled, the decree reciting that the report had been confirmed on the 24th of April, 1916, and the decree now appealed from was entered on said 15th of June, 1918. The court found that plaintiff, Hattie Harrison, is entitled to 13443/191237 part of 1912 37/100 acres, designated by the commissioners on their report and map filed therewith as parcel “B”, and appointed commissioners to allot and assign to her the aforesaid proportion of the land aforesaid, by metes and bounds, according to quantity and quality, and authorized them to employ a surveyor and such assistants as he might need, and required them to report their proceedings to the next term of the court, and “further adjudged, ordered and'decreed that the said interest of the said Hattie Harrison in the. said land so directed to be laid off and assigned to her, be taken and held by her in fee simple, and free from any and all claims of any party to either of the above entitled causes.”
The land of which Henry Harrison died seized was an undivided moiety in a tract owned by him and D. G. Sayers jointly, supposed to contain 1600 acres. It had been partitioned between said Sayers and the heirs of Henry Harrison, and found to contain 3200 acres, the western half thereof being assigned to the Harrison children, of whom there were twelve. Six of the adult ones had conveyed their respective interests before the suit was brought by Harman and Sayers against them and Henry Harrison’s administrator, and hence, only the interests of the remaining six were sold at the judicial sale. These were purchased by George W. Harman, and of those six children, plaintiff, Hattie Harrison, is the only one contesting the claim of the purchaser. After his purchase, George W. Harman sold an undivided interest to W. F. Harman, and perhaps other interests to others, until now he claims to own but two of the six twelfths which he originally acquired by the commissioner’s deed. On the last appeal, 80 W. Ya. 68, it was held that- Hattie Harrison
Reversed and remanded.