107 Va. 245 | Va. | 1907
delivered the opinion of the court.
The claim of the appellants to be tenants in common with the appellee rests upon two separate grants, dated April 1, 1856, each for ten and a fraction acres, to Lorenza D. Blair, Martin W. Leonard and Lewis Starr, Blair taking a one-third interest and Leonard and Starr a two-thirds interest. Blair never parted with his interest in these two grants in his lifetime, and the same descended to his heirs at law. John P. Preston, through successive alienations, became the owner of the Leonard and Starr two-thirds interests, and died, leaving a will devising this interest in these grants, together with other property, to his wife, Jane M. Preston, who died intestate, and the apjfellants are her heirs at law.
The appellee claims title under the Bustin grant, bearing date in 1785, long anterior to the two grants of ten acres and a fraction each now in dispute. By deed dated September 2, 1889, The Bustin Land, Mining and Manufacturing Oo. conveyed to A. J. Dull a number of tracts of land, including the two parcels in controversy, each of which is described by metes and bounds, and all lying contiguous to each other. After Dull had taken this deed, the heirs of L. D. Blair, one of the patentees under the grants of 1856, asserted a claim to five parcels of the land lying within the boundary which had been conveyed
These recitals show that the claim of the appellee to the land in controversy is under the Bmstin survey, a title paramount in time, and wholly distinct from and hostile to that under which the appellants claim. This being so, the appellee does not bear to the appellants the relation of tenant in common, joint -tenant, or co-parcener, and a court of equity has no jurisdiction to entertain this suit for a partition of such lands.
The evidence shows, as heretofore stated, that the purpose of the appellee in obtaining from the Blair heirs the deed of November 12, 1889, was to avoid litigation and quiet the title already acquired by it from the Bustin Mining and Manufacturing Oo. It is, however, contended that the possession by the appellee of the land in dispute must he referred to the title which it has under the deed from the Blair heirs, because that title is consistent with the claim of the appellants to be tenants in common.
It is sufficient to say in reply to this contention, as to which we express no opinion, that if it were to prevail, the result would be the same to the appellants; for it satisfactorily appears from the evidence that A. J. Dull, the grantor of the appellee, was in possesion of the land in dispute on November 12, 1889, when the deed was made to him by the heirs of L. D. Blair, conveying, together with other lands, the whole of the two ten-acre tracts by metes and bounds, and that he continued in possession until the 25th of November, 1889, when he conveyed, by metes and bounds, the entire body of land he had purchased, including the two parcels in dispute, to the appellee. It further clearly appears from the evidence that from and
The court, therefore, had no jurisdiction to entertain this suit for partition, and the bill was properly dismissed.
These conclusions make it unnecessary to consider other assignments of error.
The decree appealed from must be affirmed.
Affirmed.