83 W. Va. 508 | W. Va. | 1919
The plaintiffs, the widow and heirs-at-law of Martin Van Burén Maynard, deceased, brought this bill to set aside cer
It appears that in 1870 Richard Maynard and wife conveyed to their son Martin Yan Burén Maynard a tract of land said to contain about one hundred and forty-six acres. As to whether or not a life estate was created by the deed in Martin Van Buien with remainder to the children of himself and his wife is a question of construction of the deed. There is a provision in it, however, authorizing the grantee to sell and convey said tract of land to any of his brothers or sisters. The grantee in this deed, upon the theory that there was vested in him a fee simple absolute, sold and conveyed the mineral in the tract of land to Henry R. Phillips, Trustee. Subsequently, upon the theory that he was not the owner of the fee simple, but had the right to sell and convey it to any of his brothers and sisters, he sold and conveyed the entire tract of land to his sister Harriett Simp-kins who in turn sold and conveyed it to the defendant S. Shein. After the death of Martin Van Burén Maynard this suit was instituted by his widow and children against Shein and his grantor for the purpose of setting aside the deed made by Maynard to Mrs. Simpldns, and by Mrs. Simpkins to Shein, as clouds upon their title to the land, their contention being that Martin Van Burén Maynard had no right to sell the land, he having only a life estate therein, but more particularly averring that he was not of sound mind and had not the capacity to make a deed at the time he made the deed to Mrs. Simpkins. The defendant Shein demurred to this bill, and his demurrer being overruled he filed his answer in which, among other things, he averred that since he became the owner of said tract of land he had laid off a part thereof into town lots, and had sold and conveyed a number of such town lots to various parties whose names he gives in the answer; and further that, he had executed a deed of trust conveying said land to Wells Goodykoontz, Trustee, to secure two certain notes to 'different {parties whose names are given in the answer, and also that he had
The only grounds of error urged by the appellants are that the court had no jurisdiction to enter a decree can-celling the deeds of trust aforesaid, and the other deeds in the chain of title, upon which they are based, without having before it tbe beneficiaries in said deeds of trust, and that the court should have refused, upon the hearing of the cause, to read the depositions taken and filed before said trustees were made parties. It is well settled that all persons materially interested in the subject-matter involved in a suit
The contention that the depositions read upon the hearing of this cause, taken before even the trustees were made par
Reversed and remanded.