6 W. Va. 67 | W. Va. | 1873
Thomas McKinley died intestate in the year 1836, being seized at the time of his death of a tract of land in the county of Harrison, consisting of 350 acres.
Sarah McKinley, his wife, died intestate in the year 1854, being seized at the time of her death of a tract of land in the county of Harrison, consisting of about 425 acres, having survived her husband about 18 years.
The heirs at law of said Thomas McKinley consisted of eight sons and three daughters; and these children very shortly after the death of their father entered into a written agreement under their hands and seals, by which they agreed that their mother might retain possession of the land of which their father had died seized, during her natural life, and at her death, that the said land, as also the 425 acre tract, then owned by their
Immediately, or very shortly, preceding this partition of lands among the children of said Thomas and Sarah McKinley, a verbal agreement was made between the said William Parrill and the said William McKinley? for an exchange of real estate; the former to convey unto the latter a tract of land owned by him consisting of aboüt 175 acres, situated in Marion county, in exchange for his undivided interest in the lands situated on Buffalo creek, in Harrison county, and by which, as it seems from the pleadings, the parties intended his interest in the aforesaid two tracts of land belonging to Thomas and Sarah McKinley. This then undivided interest, was afterwards ascertained by the partition aforesaid, and made to consist of 97J acres of land, taken wholly from the tract of said Sarah McKinley; and for which a deed was executed to the said Plaintiff by the said children, but which deed was never delivered to the Plaintiff.
In this condition of the facts, William Parrill, the
In the year 1857, the Plaintiff filed his amended bill against William McKinley, and Albert McKinley,-his brother, and one of the sons of Thomas and Sarah McKinley, with the view of obtaining relief in accordance with the views indicated in the opinion of the Court of Appeals.
The amended bill alleges that an action of ejectment had been prosecuted against the Plaintiff by Albert McKinley, William McKinley, and Sarah McKinley, the same being commenced in February, 1853, a few months after the aforesaid decision had been rendered by the Supreme Court of Virginia; and that in the month of January, 1857, a verdict was found against him in favor of Albert McKinley, and that judgment was rendered
The bill then proceeds to set forth the title under or by virtue of which, the said Albert McKinley recovered said land; the first mentioned being a deed therefor to himself from his mother, Sarah McKinley, bearing date on the 20th day of December, 1847, and admitted to record on the same day. By previous grants and devises it was shown that the legal title was, at the time of executing this deed, vested in the said Sarah McKinley. The other title of said Albert McKinley, by virtue of which he sought a recovery of said land, was a deed executed to him for said land by G. D. Camden, a commissioner appointed by the Circuit Court of Lewis county, in a decree made by said Court in May, 1846; this deed bears date on the 9th of February, 1852. The decree above referred to was made in the suit of Ham-bleton and Denham against AVilliam McKinley, brought in chancery in the Circuit Court of Lewis county, to enforce the lien of a judgment obtained by them against said McKinley, on the law side of said Court for the sum of $1,940.96, in April, 1841. The decree aforesaid directed the sale of several lots or parcels of land belonging to said McKinley, which the decree recites that said McKinley admitted that he owned, among which, was a lot of 97J acres in the county of Harrison on Buffalo creek, being the share of the said William McKinley, in the lands of which his father, Thomas McKinley, died seized. At the sale of said lands, under this decree, Albert McKinley became the purchaser of said 97-ijf acres, and afterwards received a deed therefor, as above recited. The judgment of Hambleton and Den-ham, the creditors of William McKinley, being in 1841, and prio r to any contract verbal or otherwise between
The amended bill proceeds to allege however, that said land in controversy was not in fact or in law subject to the lien of Hambleton and Denham’s judgment aforesaid, and other facts and circumstances connected with the acquisition of his title by Albert McKinley, both in obtaining the deed from his mother Sarah McKinley, and his purchase of said land under the decree of the Circuit Court of Lewis county, as would make it wholly unjust and inequitable, that the said Albert McKinley should be allowed to take and keep possession of said land by virtue of his judgment in the ejectment case aforesaid, and praying that he may be forever enjoined from executing said judgment, or taking any further proceedings thereon; and that the said William McKinley and Albert McKinley, who are charged with confederation and fraud be decreed to convey all their interest in said land to the Plaintiff.
Albert McKinley and William McKinley, each, file answers to the amended bill, maintaining the validity of Albert’s title to said land under the deed aforesaid from his mother, and under his deed from Commissioner Camden under the decree of the Circuit Court of Lewis county, and denying all fraud and confederation in the premises. — Proofs were taken, and in June, 1869, the case came on for hearing on the amended bill, answers, replications thereto, exhibits and testimony, former orders and proceedings, the decree of the Supreme Court of Appeals of "Virginia, and the record and proceedings in the action of ejectment; and a decree was thereupon rendered by the Circuit Court of Harrison county, that
From this final decree the defendant, Albert McKinley, takes an appeal to this Court. By virtue of the verdict and judgment in the action of ejectment aforesaid, rendered in his favor, he will have the right, unless restrained by the action of this Court, to" enter upon and possess himself of the said tract of 97-J acres, which is now the subject of controversy in this suit. Whether the final decree of the Circuit Court of Harrison county shall be held erroneous, will depend upon the consideration and settlement of this question, to-wit: Whether the legal title of Albert McKinley to this land, as derived by the deed from his mother, or as derived by the deed from the commissioner, G. I). Camden, under the decree of the Circuit Court of Lewis county,' is sufficient, under the facts and circumstances disclosed in this record, to bar the equitable claim of the Plaintiff to the absolute ownership and possession of the land in controversy. All right
The first step that was taken by these brothers for the accomplishment of this purpose, is seen in the proceedings of the Circuit Court of Lewis county, where a decree was entered in the case of Hambleton and Den-ham, directing the land in question to be sold, as being the property of William McKinley, and as being subject to the lien of their judgment, and to the payment of their debt. Their judgment was obtained in the year 1841. In said decree it is recited, that “ William Me-
But has any title, legal or equitable, passed by virtue of said decree and deed to Albert McKinley ? I think not. The facts shown in this record make it manifest that the recital, made in the admission of William McKinley, as contained in said decree, is not true. This land was not “the share of William McKinley in the lands of which his father, Thomas McKinley, died seized.” These 97J acres constitute no part of the tract of land of which Thomas McKinley died seized in 1836; but constitute a part exclusively of the tract of 425 acres belonging to Sarah. McKinley, who was then in life. It was not possible, therefore, that this 9.7|- acre tract could be at that time, or any other, subject to the lien of a judgment against William McKinley, as an heir at law of his father, Thomas McKinley.
But it has been contended in argument that, by virtue of the agreement made among the children of Thomas and Sarah McKinley in 1836, in regard to the lands of their parents, and of the partition that was made thereof among themselves in the year 1843, and the deeds which were then executed, and by which partition these 97-J acres were allotted to William McKinley (although not conveyed to ' him), that he, William McKinley, became possessed of such an equitable title in this particular parcel- of land, as to subject it to the lien of his creditor’s judgment, and authorize its sale for the payment of his debt. This proposition cannot be maintained. What are the facts ? At this very time, when this decree was made by the Circuit Court of Lewis county, this particular piece of land, so decreed to be
Under these views, I am of opinion that no title, legal or equitable, to the land in controversy, passed to Albert McKinley by virtue of the sale and deed made to him under the decree of the Circuit Court of Lewis county in 1846. William McKinley did not have at that time any such equity in this particular piece of land as could be made the subject of decree and sale for the payment'of his debts, by the operation of a judgment lien.
Plaintiff bad made a contract with William McKinley for this land in tbe summer or spring of 1843; and when tbe partition was made among tbe children in tbe same year, this land was actually conveyed to the Plaintiff, Parrill, by a deed signed by the children, in consequence of their knowledge and' general understanding of tbe contract made between tbe Plaintiff and William McKinley, that the Plaintiff was to have William’s share; all these facts were well known by Albert McKinley ; be was present when this partition and these deeds were made, and aided in their accomplishment, along with the others. In 1845, this suit is instituted in the Circuit Court of Harrison county, against William McKinley, to compel a specific performance of this contract ; and of this fact, of the pendency of this suit, and of its sole object, Albert McKinley is fully informed.
While aware, then, of the existence of this contract, and that a just obligation was resting upon William McKinley to perform it; while aware that this suit was pending, and the object which it had in view; while thus fully aware that the Plaintiff was justly entitled to the ownership and possession of this land, and had re