138 S.E. 95 | W. Va. | 1927
This appeal arises out of a suit to remove cloud from title, instituted in the circuit court of Greenbrier county, in 1911, *478 by Hominy Creek Land Company against C. L. McClung, Amanda McClung, his wife, Gauley Coal Land Company, claiming mineral rights under deed from C. L. McClung, and other persons to whom the timber on the land in controversy was conveyed by C. L. McClung. The cause was finally submitted in 1922 by an order duly spread upon the record, and a final decree entered of record in the cause on the 28th day of November, 1925.
On May 12, 1926, the heirs at law of C. L. McClung, deceased, pursuant to notice duly executed, made a motion, under Sec. 1, Ch. 134, Code, suggesting the death of said McClung on the 31st day of March, 1923, and praying that they be made parties and permitted to make defense in the above styled cause. This motion was resisted by the plaintiff. The circuit court entered an order on the same day directing that the final decree of the 28th day of November, 1925, be corrected and entered as of the 16th day of January, 1923, that being the first day of the January term of said court, and a day prior to the death of said McClung.
Appellants (Gauley Coal Land Company and Amanda McClung, defendants to the original suit, and the said heirs at law of C. L. McClung, deceased, several of them being defendants to the original suit) allege that the circuit court erred in not reviving the cause against petitioners, as heirs at law of the late McClung, and permitting them to answer, and, further, in refusing to set aside and reverse the decree of November 28, 1925, finding for the plaintiff and directing the relief prayed for in his bill.
The motion of the petitioners, which is supported by affidavit, recites the fact of McClung's death, and that decree adjudicating the matters in controversy has been entered of record since that date, and then prays that said petitioners be made parties defendant as the heirs at law of said McClung. The plaintiff resisted said motion. The affidavit filed on the plaintiff's behalf alleges the fact to be that the cause was finally submitted to the circuit court at a date prior to the death of said McClung. This fact is corroborated by orders spread upon the record of the court stating that the cause *479
had been so submitted. Under our holding in the case ofLively v. Griffith,
The main issue raised in this suit was the title to 242 acres of land lying within interlocking boundaries. Plaintiff and his predecessors in title claim under the Andrew Moore patent of 11,300 acres (1793), while defendants claim under the David Hanna patent of 834 acres (1844). "Where one grant conflicts in part with another, occasioning an interlock, the elder patentee under his grant acquires at once constructive seisin in deed of all the land embraced within its boundaries, although he has taken no actual possession of any part thereof. The junior grantee, under his grant, acquires similar constructive seisin in deed of all the land embraced by his boundaries, except that portion within the interlock, the seisin of which has already vested in the senior grantee. Where, in the case of conflicting grants, the junior patentee settles upon that portion of the land within the interlock, claiming the whole within his boundary, he thereby ousts the senior patentee of his constructive seisin and becomes actually possessed to the extent of his grant. Here possession of part is possession of the whole. But if his settlement is outside of the interlock, the possession of part is to be construed in reference to the conflict of boundaries, and, with whatever claim it be taken, it gives him possession of that part of the land only lying without the interlock. To overcome the constructive seisin in deed of the senior patentee and work an ouster, there must be an actual invasion of his boundary by some act or acts palpable to the senses and which would serve to admonish him *480
that his seisin is molested." Green v. Pennington,
Affirmed. *481