126 Va. 59 | Va. | 1919
delivered the opinion of the court.
Lucy A. Nickels complains of a decree directing the conveyance to M. J. Miller of one undivided sixth of a tract of land in Wise county, containing about 204 acres, which she inherited from her brother, Samuel L. Gray, who was killed in battle in April, 1865. His heirs at law were one brother and five sisters, one of whom is the appellant.
M. J. Miller has acquired by conveyance from Patrick Hagan the other five-sixths of the land, which is not in controversy here. She claims title under the same conveyance to the one-sixth which Lucy A. Nickels inherited from her deceased brother, and bases her claim upon these grounds: (a) That in the year 1887, Mrs. Nickels entered into a written agreement by which she undertook, for a valuable consideration, which has been paid, to convey her undivided one-sixth interest in the land to Patrick Hagan; (b) that Patrick Hagan took possession of the entire tract in the year 1888; that he sold and agreed to convey to her (M. J. Miller) the whole of the land by contract in writing dated March 22, 1901, and that he executed that contract on March 6, 1906. by conveying the land to her; that she has held possession of it ever since; that, therefore, her title by adverse possession is good; and (c) that there was found among the papers of Patrick Hagan a deed dated March 16, 1888, purporting to be signed by Lucy A. Nickels and her husband, conveying the land to him, which deed, however, has never been acnowledged or recorded.
On the other hand, Lucy A. Nickels denies the title of the appellee, setting up these facts: that she was unmarried at the date of her brother’s death; that she afterwards married Stephen J. Nickels on July 30, 1867, and thát her cov
From these facts, it is apparent that the estate inherited by the appellant from her brother in April, 1865, is a common law estate, and that unless the married woman’s act, which became effective April 4, 1877 (Laws 1876-77, c. 329), is sufficient to authorize her to make an executory contract for the sale of this land, then she still has title to it; and the court erred in directing its conveyance to the appellee.
In Wynn v. Louthan, 86 Va. 947, 11 S. E. 879, the specific performance of a married woman’s contract was denied, the court saying this: “The mode prescribed by statute whereby a married woman may part with real estate, or any interest therein, is specific, imperative and indispensable, allowing no deviation; and no defective execution of a deed of a feme covert can be set up.”
It is perfectly clear, then, that because the estate of Mrs. Nickels is a common law estate which she inherited from her brother in 1865, and in which her husband acquired cer
It is proper to add that the appellant denies emphatically that she ever made any contract whatever with Hagan for the sale of the land, or that she ever signed the deed, and that in our opinion the evidence with reference thereto upon which the appellee relies is inconclusive and insufficient to support the claim of title, even if they had been valid contracts.
The claim of title by reason of adverse possession is also untenable for two reasons:
For the reasons indicated, the decree complained of, so far as it affects the rights of Lucy A. Nickels, will be reversed, and the bill will be dismissed as to her.
Reversed.