100 Va. 660 | Va. | 1902
delivered the opinion of the court.
J. R. Nicholas was seised during his lifetime of several parcels of real estate in. the county of Rockingham. He gave one of these tracts, valued -at $7,000, to his son, Charles H. Nicholas. The donee was put in possession about the year 1880, and thereafter placed valuable improvements upon it, and exea’cised exclusive 'ownership over it until his father’s death.
In 1872 the father placed J. J. Nicholas, another son, in possession as tenant of what is known as the “Palmer tract,” consisting of 125 acres. In 1887 his father proposed to him that he should take this tract at $10,000, $8,000 of which was to be treated as an advancement, and $2,000 to be paid after his father’s death, and one quarter of the grain raised upon the place was to be paid to the father during his lifetime in lieu of interest. After this arrangement, J. J. Nicholas exercised " complete ownership over the property, made improvements upon it, and has ever since remained in possession.
With respect to the land claimed by P. L. Nicholas, the evidence fails to establish a parol gift to him prior to the first day of May, 1888, but, on the contrary, it appears that he was placed in possession of the lands, of which he now claims to be the .'owner, 'after that date.
The Circuit Court entered a decree which declares that Charles H. Nicholas, J. J. Nicholas and Prank L. Nicholas shall be quieted in the possession and ownership of the respective tracts of land held by them. Prom this decree George M. and W. S. Nicholas appealed.
We are of opinion that with respect to so much of the decree as confirms the title of Charles H. Nicholas and I. J. Nicholas
“No estate of inheritance or freehold, or for a term of more than five years, in lands, shall be conveyed unless by deed or will, nor shall any voluntary partition of lands by coparceners, having such an estate therein, be made, except by deed; nor shall any right to-a conveyance of any such estate or term in land accrue to the donee of the land or those claiming under him, under a gift or promise of gift of the same hereafter made and not in wi'iting, although such gift or promise be followed by possession thereunder and improvement of the land by the donee, or those claiming under him.”
The case before us is within the mischief aimed at by the section just quoted.
Section 2561, which treats of advancements to be brought into hotchpot, is in the following words:
“Where any descendant of a person dying intestate as to his estate or any part thereof, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, by way of advancement, and he or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shalt be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal.”
The two sections above quoted must be read together. “The true notion of an advancement is a giving by ‘anticipation the whole or a part of what is supposed a child will be entitled to on the death of a parent.” Chinn v. Murray, 4 Gratt. 397.
Indeed, Judge Burks, one of the revisers, in speaking of the changes wrought by section 2413 of the Code, says:> “Even a parol gift of'land, if possession was taken by the donee and a large expenditure was made by him in improving the land, was treated in equity as a valid sale, and was 'allowed to be set up on oral testimony alone. This was a most prolific source of fraud.
“Yoluntary partition, also, of land by coparceners, was considered as not within the operation of the statute requiring a deed to convey an estate of inheritance or freehold, and therefore partition by parol was upheld.
“In both of these instances the law was changed by the revision so as to require writing.” Reports Va. State Bar Association, vol. 4 (1891), p. 117-8.
We are also of opinion that there is no error in the decree rejecting the claim of Erank L. Nicholas for board and attention to 'his father during his lifetime. The commissioner reported against this claim, the Circuit 'Court concurred with the commissioner, and the evidence is not such as to warrant uis in reversing its decree upon this point. Stoneburner v. Motley, 95 Va. 784; and Jackson v. Jackson, 96 Va. 165.
The decree complained of should be reversed in so far as it
Reversed in part.
UPON A PETITION TO REHEAR, DECEMBER 4, 1902.
Upon a petition to rehear the decree of November 20, 1902, counsel for F. L. Nicholas has fallen into error in saying that this case was disposed of without an opportunity upon his part to present his views. The case was called on the 9th of September, 1902, at Staunton, and was submitted upon the petition of appellants, who were represented by Mr. Liggett, upon the brief of Messrs. Sipe & Harris on behalf of J. J. Nicholas, and that of Gen. John E. Poller, of counsel for E. L. Nicholas, with leave to file additional briefs on or before .September 30th. Some time about the 20th of October, no additional briefs having been filed in accordance with the stipulation, the case was considered fully upon the record and briefs already filed, and the opinion was prepared. Yery soon thereafter a letter was received from counsel calling attention to the leave reserved to file additional briefs, and asking that the cause be removed to Pichnnond and set down for oral argument. To this letter -the reply was at once made, that the time within Which, under the leave reserved, additional briefs could be filed had expired, and it was therefore supposed that counsel had abandoned the idea of filing them, that the opinion had been written, and the case was ready to be disposed of. It appears, then, that the views of all parties were presented to the court. Those of appellants in a full petition for appeal. Those of appellees upon briefs which set forth in a very sufficient manner the law and facts relied upon by them, and certainly it was not the fault of the court that additional briefs were not filed within the stpulated -time.
We are of opinion that there is no error in the decree heretofore entered, and the petitions to rehear are denied.
Rehearing refused.
