17 W. Va. 901 | W. Va. | 1881
announced the opinion of the Court.
This is a cause in equity brought by the plaintiff in the circuit court of Kanawha county on the 30th day of December, 1871, for partition of a tract of land situate in the county of Kanawha, containing about one hundred and fifty-seven acres of land, against the defendants. The defendant, Samuel Rust, on his petition and assignment of error therein obtained from this court an appeal and supersedeas to decrees rendered in the cause on the 19th day of November, 1874, the 4th day of December,
The first error assigned by the appellant in his petition is, “ that the circuit court erred in the decree of November 19,1874, in sustaining the demurrer toyour petitioners’s cross-bills, and in refusing the relief asked in said cross-bills.” The cross-bills referred to in this assignment of error are contained in two answers of the appellant and seek to bring into this cause for adjudication matters foreign to the purposes and objects of the original cause and not germain thereto, or in any wise connected therewith, or properly in aid of or in defence of any matter or allegations of the original or amended bills or any relief prayed therein. And for these reasons the circuit court properly in its decree of the 19th of November, 1874, sustained the plaintiff’s demurrer to so much of the answer of the appellant, as set up affirmative matter and prayed relief thereon.
The second error assigned by the petitioner in his petition is, that the circuit court erred “In refusing to recognize your petitioner’s rights by reason of his actual,adversary and exclusive possession for eighteen years under color of title, and granting the partition prayed for in the bill, thus denying your petitioner alf benefit of the statute of limitations.” It is manifest from the pleadings and evidence in this cause, that the plaintiff claims parts of the land sought to be partitioned by virtue of conveyances from part of the heirs of William Forqueran and others claiming under a part of said heirs, and the defendants claim the other part>«of said land under conveyances from other heirs of said Forqueran and from others claiming under a part of said heirs. Each and all the deeds to the appellan- tare for interests in said tract of land. The appellant also through a deed from John D. Forqueran dated the 10th of January, 1854, acquired the dower-interest of Susan Forqueran as widow of said William Forqueran in the said tract of land. It is also clear from the pleadings and evidence, that the plaintiff
After a careful examination of the pleadings and evidence in this cause it seems to me, that it does not appear, that the possession claimed by the appellant of the land in controversy was tortious and wrongful by disloyal acts of his, which were so open, continued and notorious, as to preclude all doubt of the character of his holding or the want of - knowledge thereof by his co-’ tenant, and that the conduct of the appellant, as shown by the pleadings and evidence, amounts to a clear, positive and continued disclaimer and disavowal of his co-tenant’s title and an assertion of an adverse right; and that a knowledge of this is brought home to his co-
The third assignment of error in the appellant’s said petition is as follows, viz: “ 3d. The 'court erred in the decree of December 4, 1874, in confirming said ‘partition.” The said decree of the 19th of November, 1874, appointing commissioners to make partition ascertains, that the “plaintiff is entitled to two eighths and one fifty-sixth, or fifteen fifty-sixths of the whole of said tract of land, and that the defendant Samuel Rust, by divers conveyances from the other heirs is entitled to the remainder of said land.” The commissioner’s report of partition on its face seems to be in accordance with said ascertainment of the court. There are no exceptions to the report of partition ; and the report does not appear to be-erroneous on its face, unless the said decree of the 19th day of November, 1874, is erroneous under the pleadings and evidence, of which I will speak further on.
The appellant’s fourth assignment of error in his petition is as follows: “ Ihe court erred in the decree of June, 29, 1876, in permitting■ complainant to file his second amended bill after final decree, the decrees of November 19 and December 4,1874, having fully and finally settled and disposed of every question raised in the cause by proof or pleading, and adjudging and.decreeing the costs of the suit.” It is true, the bill and amended bills praying partition of the said land do not specially pray for and ask an account for rents and profits; but they do contain the prayer for general relief; and the plain tiffs amended bill prays for “ such other general or special relief as the court may think meet and proper.” The circuit court in said decree of the 19th day of November, 1874, appointing commissioners to make partition of said land at the end thereof declared and decreed as follows, viz.
On a bill claiming a share of a tract of land and asking for partition and for general relief, the plaintiff’s right to partition being established, under the prayer for general relief there may be a decree for an account of rents and profits. See Humphrey v. Foster and wife, 13 Gratt. 653.
Judge Allen in delivering the opinion of the court in the last-named case at page 657 says : “As to the second error assigned, that no account for rents and profits having been specifically asked in the bill-none should have been ordered, it is sufficient to say that tfre bill contained the usual prayer for general relief, and a recovery of rents and profits would in general be incidental to the recovery of the land.” See also as bearing on this subject Hall v. Pierce, 4 W. Va. 113; Bank of Washington v. Arthur et al., 3 Gratt. 173.
It is manifest that the court in the case at bar gave costs in the said decrees appointing commissioners to make
It seems to me from all that appears, that the decree of the 4th day of December, 1874, should not be considered a final decree in the cause. It is true, that it is final upon the subject, which it adjudicates, but it is not final as to matters in the cause, which are not adjudicated or in any form passed upon by the court.
The case of Crim v. Davidson, 6 W. Va. 465, is unlike the case at bar. In that case the syllabus is : “After a final decfee has been made in a cause, it is error, at a subsequent term, to allow a party to file an answer, and thereupon to open up the proceedings, to set aside and reverse the former decree, and hear and determine the cause de novo.” In that case at page 467, Judge Pauli in delivering the opinion of the court says: “This appears to be a final decree, ascertaining and settling by I'egularly conducted proceedings the rights and liabilities
It seems that at common law joint tenants and tenants in common had no remedy against each other, where „ one alone received the whole profits of the estate, since he could not be charged as bailiff or receiver to his companion, unless he actually made him so. 1. Tho. Co. 788, note (E.) Early et ux v. Friend et al., 16 Gratt. 43. But the statute of 4 Anne c. 16, § 27, was passed in England to remedy this defect of the common law. And a similar statute was passed in Virginia at an early period, and has ever since continued in force. The Code of Virginia p. 586, ch. 145, § 14, is in these words: “An action of account may be maintained against the personal representative of any guardian, bailiff or receiver, and also by one joint tenant or tenant in common, or his personal representative, against the other as bailiff, for receiving more than comes to his just share or proportion, and against the personal representative of ' any such joint tenant or tenant in common.” This provision of statute-law has been in force with us ever since this State came into existence and may be found in the Code of this State of 1868, sec. 14, ch. 100.
In the case of Early et ux v. Friend et al., 16 Gratt. 21, it was held as follows: “1. One tenant in common may maintain a suit in equity against his co-tenant who has occupied the whole of the common property. Whenever the nature of the propérty is such as not to admit of its use and occupation by several, and it is used and occupied by one only of the tenants in common; or whenever the property though capable of use and occupation by several, is yet so used and occupied by one as in effect to exclude the others, he receives more than comes to his just share and proportion in the meaning of the statute. 3. When the common property is rented out by one tenant in common, he is accountable to his co-tenants for their share of the rents he , has received;
I think under the authorities above cited, that as the court decided that the plaintiff was entitled to partition of the said tract of land in this cause, and the plaintiff and defendant, Samuel Rust, were tenants in common in the said tract of land, and as the plaintiff recovered in theoause the fifteen fifty-sixths of the land in controversy, the rents and profits in this case were incident to the recovery of the fifteen fifty-sixths of said land, and under the pleadings and evidence in the cause the circuit court might properly at the time of the rendition of the said decree of the 4th day of December, 1874, or afterwards and at the time it did, render a decree in the cause of reference touching the rents and profits, and could properly have done so without the second amended bill being filed praying for an account of rents and profits. The said second amended bill was filed subsequent to the date of said decree of the 4th of December, 1874, to-wit, at April rules 1875. The appellant appeared to said amended bill and filed his answer thereto, in which among other things he objected to said second amended bill and demurred thereto. The second amended bill was unnecessary ; and as it could do no harm, it is unnecessary to determine, whether the court erred in permitting said amended bill to be filed or in not dismissing it.
The plaintiffs fifth assignment of error in his said petition is as follows, to wit: “ 5th. The court erred in its decree of December 20, 1877, in requiring your petitioner to pay rent for the interest set apart by the decree to complainant, and especially in allowing rent thereon for five years next preceding the date of the original suit, and imtH the partition.” It appears that the circuit court on the
The appellants sixth assignment of error in his said petition is as follows, to wit: “6th. In requiring your petitioner to pay interest on said rents, though he held the land adversely to eomplainant claiming and believing it to be his own.” In the said case of Early et ux. v. Friend et al., 16 Gratt. 21. Judge Moneure in delivering the unanimous opinion of the court in that case at page 58 says: “The Friends being accountable to their co-tenants for a reasonable rent of the property, and not for the issues and profits of their operations thereon ought to pay interest on the rent of each year from the end of such year until payment; ” and that is what is meant by the
The plaintiff in the case at bar is only charged with what the commissioner and court ascertained and determined to be a reasonable money-rent, and in such • case it was not error to charge the appellant with interest on each year’s rent from the end of each year; and the court did not err in tins respect. I will say however that I do not think from the pleadings and evidence in this cause, that the appellant held the land adversely to complainant claiming and believing it to be his own as assumed in said assignment of error. I think from what appears the appellant was fully aware during the whole time he was in possession of said land, that the title to the whole of said land was not vested in him, and that he only had title to said land for undivided parts.
The appellant’s seventh assignment of error is as follows, viz: “7. In confirming Commissioner Qallaher’s report and fixing the rental value of said land at $4.00 per acre.” As to what was the reasonable annual rental value of the land the evidence seems to be conflicting, but under the evidence taken pro and con upon that subject I do not feel satisfied that the commissioner erred in fixing the annual rental value of the land at $4.00 per acre or that the court erred in overruling the appellant’s exception upon that point.
The foregoing are all the errors assigned in said petition.
Counsel for the appellant in their brief filed in this cause-urge some other objections to the rent and amount thereof, but they are not covered by any exception filed to said report of Commissioner Gallaher. Errors in the details of a decree for an account are not a proper subject for an appeal and correction in the Appellate Court; but they may be corrected by exceptions to the commissioner’s report. Humphrey v. Foster et ux, 13 Gratt. 653.
Counsel in one- of their briefs filed in the cause say “It was error to decree to plaintiff fifteen fifty-sixths of ' the land, and to require the defendant to pay him rents thereon ; that the plaintiff only acquired one eighth interest from Mary Rust — he only acquired one eighth in-, terest, making fourteen fifty-sixths; that it is true, that at the date of this deed Mary owned one eighth as heir of her mother, Mahala, who was a daughter of ¥m. Forqueran, and also one seventh of one eighth as heir of her Aunt Eliza Alexander.” If appears from the second answer filed in the cause by the appellant that he admits therein that Mrs. Alexander, the aunt of said Mary Rust, died the 23d day of April, 1851, intestate and without issue. The deed made by said Mary Rust to plaintiff is dated the 19th day of November, 1859, eight years and upwards after the death of said Mrs. Alexander. At the time the said Mary Rust conveyed to the plaintiff she was vested with one eighth of the said land as the legal heir of her mother and of one seventh of one eighth of the said land. Counsel of defendant admit that the deed from Mary Rust to plaintiff did pass to him the one eighth of the land which she derived from her mother, but they contend that it did not pass the one seventh of one eighth of the land which the said Mary Rust inherited. The one seventh of one eighth of the tract of one hundred and fifty-seven acres would be something less than three acres. Now it is hardly reasonable to suppose that the said Mary Rust intended to convey the one eighth of said land to plaintiff and not convey by said deed the said small and insignificant fraction which she inherited over nine years .prior to the date of her said deed of conveyance to the plaintiff.
Counsel for appellant say : “But it is clear from the record, that neither grantor nor grantee knew at that date of the death of Eliza (meaning Mrs. Alexander)^
From all that appears in the record of this cause I do not feel satisfied in my mind, that the circuit court erred
Eor the foregoing reasons it seems to me there are no errors in the decrees appealed from in this cause prejudicial to the appellant, for which they or any of them should be reversed, the said decrees must therefore be affirmed and the appellant, Samuel Eust, must pay to the appellee, Vincent E. Eust, his costs about his defence of the appeal and supersedeas in this cause in this Court expended and damages according to law.
Decrees Affirmed.