67 W. Va. 356 | W. Va. | 1910
This is an appeal from a decree of the circuit court of Raleigh county rendered on the 14th day of December, 1905, upon a bill for the partition of a tract of 100 acres of land. A short statement of the facts is necessary to a correct understanding of the questions of law presented.
On the 11th of February, 1867, Lewis Stover and wife granted to their son Tollison Stover and Martha Jane his wife 100 acres of.land which is the same sought to be partitioned. This grant contains the following clause, viz: “The said parties of the first, part doth grant, bargain, sell and convey unto the said Tollison Stover and Martha Jane his wife to be held by them as a homestead for themselves, and after them to their heirs, One Hundred Acres of land.”
On the same day Lewis Stover made -four several conveyances to four of his other children for other portions of his land, apparently thereby conveying all his land, about 614 acres, to his children. At the date of these conveyances Lewis Stover was indebted to one R. P. Toney who brought a suit in chancery attacking these conveyances on the ground of fraud and such proceeding was had in that suit that on the 26th of April, 1870, a decree was rendered holding said deeds to be fraudulent as to the plaintiff and setting them aside “so far as may be necessary for the payment of his (R. P. Toney’s) claims herein decreed and recognized.” The decree further provided for a sale of the land in the event the debt was not paid within thirty days from the date of the decree, and appointed John W. Mc-Creery and Isaac S. Samuels commissioners to make sale of the land, and authorized either one of them to act. John W. Mc-Creery qualified as such commissioner by giving bond, but so far as appears from the record there was never any sale of the land under this decree, and on the 29th of July, 1870, an order
Tollison Stover, his wife, and his father Lewis Stover and wife, by deed dated July 20, 1870, granted the aforesaid 100 acres of land to Burwell Stover, and covenanted to warrant generally the title. Shortly after the execution of this deed Burwell Stover entered into possession of the land and he, and those claiming under him, have been in possession ever since. Burwell Stover made a will devising the land in severalty to his two sons, Andrew and Burdine, and died in 1897. Andrew Stover, one of the devisees, died before his father, and left to survive him eight children, viz: Samuel, Sarah, Iiarvey, Martha, Josie, Laura, Princess and Eliza. Sarah died, after her father, without issue.
Martha Jane, wife of Tollison Stover, died July 28, 1878, leaving seven children, three of whom died shortly after their mother’s death, unmarried and without issue. In the year 1879 Tollison Stover intermarried with one Deborah Kidd by whom he had six children, three of whom died before their father, unmarried and 'without issue. Tollison Stover died December 4, 1900, leaving to survive him four children by his wife Martha Jane, and two children by his wife Deborah, and one grandchild, Lessie Bailey, the child of a deceased daughter by the second wife. It is thus seen that Martha Jane Stover left seven children to survive her, and that Tollison Stover left six children and one grandchild to survive him, as their respective heirs at law, but that four of Tollison’s children were by his first wife, and two and a grandchild by his second wife. The children of Tollison Stover, and his grandchild, are asking partition of the land against Burdine Stover and the heirs of Andrew Stover ■who claim the whole.
One question is, what affect had this decree upon the title which passed by the deed of Lewis Stover and wife to Tollison Stover and Martha Jane, his wife? We can not see that it had any. The decree did not set aside the deed in toto; the court could not thus avoid the deed. It was good between the parties, and void only so far as it stood in the way of Toney’s collecting his debt. Love v. Tinsley, 32 W. Va. 25. The record shows that Toney’s debt was paid by Burwell Stover. Toney testifies that Burwell Stover bought the land from the “old man Stover,”
In order to ascertain who is now entitled of the land, it is first necessary to construe the deed from Lewis Stover and wife to Tollison Stover and Martha Jane his wife, wheréin the following language is used, viz: “to be held by them as a homestead for themselves, and after them to their heirs.” Do not these words limit the estate to Tollison and Martha Jane for life
No particular words are necessary to create a life estate, .any language in the conveyance which sufficiently shows the grantor’s intention will suffice. It is a settled rule in construing deeds, as well as wills, that the language of the instrument will be given that construction which will clearly effectuate the intention of the parties, when such intention does not contravene some principle of law. Perkins v. Dickinson, 3 Grat. 335; Allemong v. Gray’s Admr., 92 Va. 216 (23 S. E. 298); Temple’s Admr. v. Wright, 94 Va. 338; King v. Ry Co., 99 Va. 625; Lindsey v. Eckels, 99 Va. 668; Gibney v. Fitzsimmons, 45 W. Va. 334; Uhl v. R. R. Co., 51 W. Va. 106; Waldron v. Coal Co., 61 W. Va. 280.
The effect, therefore, of Lewis Stover’s deed was to invest Tollison Stover and Martha Jane, his wife, with an estate by entireties for life, and to create a contingent remainder in fee in favor of 'their respective heirs. . The word heirs as used in the deed must be taken to have its legal and technical meaning and to denote that class of persons on whom the law would cast the descent, if the person whose heil-s they are should die seized with an inheritable estate, because there is nothing’ in the conveyance to indicate that the grantor meant to restrict its meaning. The authorities are practically uniform to , the effect that, when the instrument of conveyance contains nothing
When did the title to the estate in remainder to the heirs of Tollison Stover and Martha Jane Stover vest? The remainder could- not become a vested estate upon the execution of the deed, because “their heirs” describes a class of persons not ascertainable at that time, and a class that could not be ascertained until the ancestor’s death, by virtue of the maxim, nemo est haeres viventis. This then, according to the text 'writers and decisions, created a contingent remainder in the. heirs, contingent not because the happening of the event on which the future estate was to vest was uncertain, but because of the uncertainty of the class of persons to take. These were unknown and unascertainable until the death of the life tenants. 2 Minor’s Inst. 339; 24 A. & E. E. L. 398; Williamson v. Williamson, 18 B. Mon. (Ky.) 329; Johnson v. Jacob, 11 Bush. (Ky.) 646; Colby v. Duncan, 139 Mass. 398; Wallace v. Minor, 86 Va. 550. Upon the death of Martha Jane Stover her heirs immediately came into being, and the title to one moiety of the estate in remainder immediately became vested in them. Their enjoyment of the possession, however, was deferred until the death of Tollison Stover, because the life estate to him and his wife was an estate by entireties, and, being a life estate only, it was subject to the jus accrescendi. ■ Section 18 chapter 71, Code 1906, abolishing the common law right of survivorship, does not apply to. a life estate by entireties; it applies only to estates of inheritance. 2 Min. 410; Thornton v. Thornton, 3 Rand. 179; Norman’s Exor. v. Cunningham, 5 Grat. 64; McNeely v. Oil Co., 52 W. Va. 616. But the fact that the heirs of Martha Jane Stover were thus withheld from the enjoyment of the possession of their estate, between the time of their mother’s death and the time of their father’s death, did not
The legal presumption is that, when a grant is made to two persons jointly, each is seized of an equal share, -or interest, unless the contrary appear in the grant. Jarrett v. Johnson, 11 Grat. 327. So, in case of a grant to two persons for life with remainder to their heirs, unless the term '"heirs” be given a restricted meaning, the presumption is that the heirs of each, as a class, take the same share or interest in the remainder that the ancestor had in the life estate. Norman’s Exor. v. Cunningham, 5 Grat. 64. The right of survivorship in this ease affects only the life estate of Tollison Stover and Martha Jane, his wife, and therefore does not change this rule as to the quantity of interest" the heirs of each shall take in the remainder. Neither is it affected by the statute abolishing the rule in Shelley’s Case, which determines the manner of. the taking and the quality, or character, of the estate, but not the quantity of interest, which remains the same as it was at common law. The fact that a different class of persons may be heirs of the wife from those who may be heirs of the husband, and the presumption of law being that the heirs of the one are to have as much interest as those of the other, determines the question that the heirs of each take a moiety in the land, title to which vests first in the heirs of the ancestor first dying. Norman’s Exor. v. Cunningham, 5 Grat. 64; Williamson v. Williamson, 18 B. Mon. (Ky.) 329.
Upon the death of Martha Jane Stover the remainder in
. On the 12th day of November, 1901, Penira Irvin and Charles Irvin her husband, Lillie Ann Dunbar and John Dunbar her husband and Sarah 0. Stover and Adeline Stover, now Adeline Williams, united in a conveyance to Ashton File, granting to him “a one-fourth undivided interest” ■ in the aforesaid 100 acres of land. At the date of this deed Penira Irvin, Lillie Arm Dunbar, Sarah O. Stover and Adeline Stover were seized
The will of Burwell Stover, before mentioned, devised this 100 acres of land in two separate parcels, one parcel to his son Andrew Stover, and the other to his son Burdine Stover. Bur-dine is now living, but Andrew died in the lifetime of the testator, leaving eight children as his heirs at law, one of whom afterwards died without issue. The will of Burwell Stover was made .on the assumption that he was seized of the entire tract of land in fee, which, as we have before seen, was not the case. But the covenant of general warranty by Tollison Stover to Burwell Stover purporting to grant him the whole of the land in fee, by deed of July 20, 1870, operating as a conveyance by way of estoppel, invested the devisees of Burwell. Stover with title to the three-fourteenths which Tollison afterwards inherited from the three deceased children of Martha Jane Stover. Consequently, the heirs of Andrew Stover are entitled jointly to three undivided twenty-eighths in that portion of the land devised by Burwell Stover to his son Andrew, and Burdine Stover is entitled to three undivided twenty-eighths in that portion of the land devised to him. The two children and the grandchild of Tollison Stover by his last wife are each entitled to the undivided one-seventh of the half, or to a one-fourteenth of the whole, the grandchild taking the part its mother, if living, would have taken.
The interest of the several classes would be as follows: the children of Martha Jane Stover, nine-twenty-eighths; Ashton File, seven-twenty-eighths; the children and granchild of Tolli-son Stover by his last wife, six-twenty-eighths; Burdine Stover three-twentv-cighths; and the heirs of Andrew Stover, three-twenty-eighths.
Plaintiffs had formerly brought an action of ejectment to recover the land, and in May 1904 suffered a non-suit. A judgment of non-suit does not operate as a bar to any subsequent suit or proceeding for the same cause. 4 Minor 958; 2 Black on Judgments, section 699; Henry v. R. R. Co., 40 W. Va. 234.
The deed of Tollison Stover and wife and Lewis Stover and wife of July 20, 1870, to Burwell Stover invested the grantee with the greatest estate which the grantors’ then' had in the
Those claiming by purchase, as heirs of Martha Jane Stover and of Tollison Stover, by virtue of the deed from Lewis Stover and wife to Tollison Stover and wife dated February 11, 1867, do not occupy the relation of such adverse and hostile claimants to those claiming under the devise from Burwell Stover, &s will prevent a- decision of their rights in this proceeding, since it is seen that the title in fee to so much of the land as they now have comes directly from the same source as the title of the plaintiffs, to-wit, by virtue of the Lewis Stover deed of February 11, 1867. The title which Burdine Stover and the heirs of Andrew Stover now have in the land is identical to the title of these plaintiffs. It is the three-sevenths of the one-half, 'which was inherited by Tollison Stover from the three deceased children of Martha Jane Stover, deceased, and which passed by operation of estoppel from Tollison Stover to Burwell Stover’s devisees. This is all the interest they have. It is true they claim title to the whole of the land, but their title papers do not support their claim; on the contrary, their title papers, upon proper construction of them, prove that they are tenants in common with plaintiffs, and are entitled to the three-sevenths of the half, or three-fourteenths of the' whole of the land. It was necessary to determine what, interest if any, those claiming under Burwell Sto-ver had in the land, as an incident to the ascertainment of what share, or interest, each claimant should have in the allotment. The fact that defendants were in actual possession, .claiming title to the whole, would not prevent plaintiffs from having partition, unless they were claiming under a source of title distinct from, and hostile to, the source of plaintiffs’ title. Suppose plaintiffs had- brought an action of ejectment against defendants, they could only have recovered an undivided interest in the land; it would still have been necessary to partition the land. It was, therefore, unnecessary to do this,
In view of the law as expressed in this opinion, it follows that there is error in the decree appealed from. Consequently, the decree of the circuit court of Kaleigh county, rendered on the 14th day of December, 1905, will be reversed, and this cause remanded to said circuit court for further proceedings therein to be had according to the principles stated in the foregoing opinion, and further according to the rules and principles governing courts of equity.
Reversed' and Remanded.