68 W. Va. 241 | W. Va. | 1910
Stacy Lloyd died owning land in Wetzel county leaving three heirs, Ephraim L. Lloyd, John S. Lloyd and Stacy Lloyd, Jr. Two of these heirs, John S'. Lloyd and Ephraim L. Lloycl, 24th November, 1869, made an executory contract selling and agreeing to convey by quitclaim deed to John 'Mills, Jared Maris, William IL Buell and Thomas W. Ewert the said land. The.
No one questions that the heirs of Stacy Lloyd, Jr., once had a one third interest in the land involved in this suit. Has that interest been lost by the statute of limitations? Two of the heirs of Stacy Lloyd, Sr., assuming to have owned the whole of the land, claiming, it seems, that their brother, Stacy Lloyd, Jr., had received his share by advancement in their father’s estate, did make an executory contract selling to Mills, Maris, Buell and Ewert the tracts of land, not mere interests therein, but the - whole tracts. I am of the opinion for myself that in ordinary cases an executory contract is color of title under the statute of limitations. In Pickens v. Stout, 67 W. Va. 423 (68 S. E. 354), in an opinion filed by me, I discussed this subject, and cited authorities, and shall not renew the discussion here. I will only cite that excellent new work, American & English Encyclopedia of Law and Practice, Yol. 2, 461, saying that as against persons other than the vendor, “between whom and the vendee there is no privity, the possession of the vendee is deemed to be adverse; and it is well settled that the possession of a person who enters under an executory contract to purchase, and subsequently obtains his deed, in pursuance of the contract, is adverse from the time of his entry as to all the world except the vendor.” I mean to say that that executory contract is color of title, and if followed by possession confers title under the statute. But in the Piclcens Case it is held that though an executory contract may not be color of title as bétween adverse claimants, yet where one co-tenant makes an executory contract
Thus we 'have color of title. The next question is, Is there possession under it such as to give title under the statute? Now, John Mills, Jr., cannot show such acts of possession prior to the oil leases as to confer title. So Judge Willis thought, so we find. We need not detail evidence here. But we hold, that those oil leases followed by actual possession under them, is such possession under that executory contract and under that deed, each and both, as to constitute an ouster and give Mills-title by the statute of limitations. It is urged upon us that those leases were not conveyances of the corpus of the land, its whole body, but only conferred upon the lessee a right to explore for oil and left the possession, the constructive possession and the land itself in Mills. What difference? We need hardly cite authority to show that when a man claiming
The chief reliance of the plaintiffs is, that Maris, Ewert and other claimants under sale from the two Lloyd heirs once recognized the right of the heirs of Stacy Lloyd, Jr., by the letter mentioned above, and the suit in their names. That was before John Mills, Jr., had interest. He never made such admission. But in every case of ouster by one co-tenant his fellow was once recognized as a co-tenant. Even Maris, Ewert and others would not be precluded from ousting those heirs after-wards, and much less John Mills, Jr. After these admissions
A great deal of law is cited us to the effect, that where one co-tenant is in possession, mere silent posession, it will not affect other co-tenants, without notice of adverse claim. That is so where there is one co-tenant in possession; his possession is that of all, until he bring home to his fellow notice of adverse claim. But that is not the ease where one conveys the tract as sole owner to a stranger and the grantee goes into possession. Other notice is not necessary.
As we hold there was no adverse possession until the leases for gas and oil, and as Sarah Lloyd Prichard did not become of age until June, 1903, and had five years thereafter in which to sue, her right is not barred, and we cannot sustain the cross-assignment of error made by Mills against that part of the decree 'which requires him to account for her interest.
Decree affirmed.
Affirmed.