Mitchell v. Petty

| W. Va. | Jan 15, 1868

Brown, President.

John Mitchell died, seized of two several tracts of land, one called the “ Tanner” tract, the other the “Walker” tract.' He left nine children who inherited the said lands, two of whom, viz: Catherine, (who after-wards married Philip M. Petty,) and Cassandra, sold and conveyed, with general warranty, one undivided fourth part of the “Tanner” tract to Joseph Mitchell and James West. The said lands were subsequently partitioned in a suit for the purpose between the heirs of John Mitchell, deceased, and the entire interest of the said Catherine in both tracts assigned to her in the “Tanner” tract, and the entire interest of said Cassandra in both tracts was assigned to her in the “'Walker” tract.

It is not proved that Joseph Mitchell wTas a party to the partition suit or concluded by it. But under his conveyance from Catherine and Cassandra he (having purchased the interest of James West) took possession of the part (viz: 35 acres) assigned to Catherine and held it for many years, when Catherine, and her husband Petty, filed their bill and obtained a decree for 15 acres of the said 35, as the equivalent of her interest in the “Walker” tract. And from that decree Joseph Mitchell appealed to this court.

Petty and wife do not controvert the right of Joseph Mitchell to- 20 acres of the part so assigned to her, that being equivalent to her interest in the “ Tanner” tract and conveyed by her deed to Joseph Mitchell, but she insists that the 15 acres, which are the equivalent of her interest in the “Walker” tract not conveyed, are still hers. Por Joseph Mitchell it is contended that the general warranty of Catherine and Cassandra, estops her from claiming the same against the vendee, who even then gets less than his purchase from both by at least 5 acres.

The first point to be decided then is as to the effect of the said warranty. It is a general rule that a party is estopped by his general warranty, and I see no good reason to take this case out of the operation of that rule.

I think, therefore, that the complainants, Petty and wife, were estopped from claiming the 15 acres in question, and the court erred in decreeing the same to them. Cassandra, the other covendor and warrantor with the said Catherine, is a party to the bill, and the prayer is for general relief. The said Petty and wife are entitled to pursue the land assigned to Cassandra in the “Walker” tract for indemnity for the loss on her account; but if it has been conveyed to a bona fide purchaser without notice then they would be equally entitled to a decree against Cassandra for the value thereof. And as there is evidence in the cause going to show.a sale by Cassandra to one Prestley Melntire, who is not- a party to this suit; the decree of the circuit court should be reversed with costs to the appellant, and the cause remanded to the court below with leave to amend the bill if deemed necessary, and there to be proceeded in as may seem right.

Maxwell, J., concurred.

Deoree Reversed.