53 W. Va. 411 | W. Va. | 1903
Sarah Sansom brought a suit in equity against R. L. Blankenship and others in the circuit court of Wayne County claiming to be the owener of a tract of land, and that she was
The answer of R. L. Blankenship and Mary V. McSweeney states that the plaintiff and F. M. Blankership, while he owned the 40 acres, took possession of the tracts so allotted to them, and agreed upon a partition line between them, which was clearly marked, and lived up to and acquiesced in for a number of years, and that for a number of years after partition deeds under the partition decree there was no objection made to the line or occupancy up to it; that the conveyance to them from F. M. Blankenship was up to this line. They deny that the land in question is owned by plaintiff, and deny that they had done irreparable injury to the plaintiff. No replication was made to this answer. The case was heard on the bill and answer and the injunction was dissolved and the bill dismissed, and Sarah' Sansom appeals.
The plaintiff filed an amended bill practically the same as the original, except that it set up1 that suits had been brought to set aside as fraudulent against creditors of R. L. Blankenship the said conveyance from him to his children, and it was set aside and the land sold under decree to Adkins and the land was conveyed by Adldns to R. L. Blankenship. The amended bill is said to have been at rules when the cause was heard. No notice of it was taken in the decree. It is not mentioned in the record. It is copied into it, but is no part of it.
For the defendants it is argued that the original bill should have been dismissed upon demurrer for these reasons:
1. Because the bill does not show good title in the plaintiff
2. Because the bill does not show the land in controversy or the injury to the amount to $50.00. Amount does not control equity or a suit involving title to land.
3. Because the bill showed only a controversy as to a piece of land between the line of the plaintiff’s deed and the'line of the defendant’s deed, and was a controversy between conflicting titles or boundary cognizable at law, not in equity. Equity does not accept a suit only to settle title or boundary to land; but an exception is that if the plaintiff is in actual possession he may sue to remove an adverse title from his title, because it is a cloud over it. This rule arose when one in actual possession- could not bring ejectment, and when no one could be sued in ejectment from his merely claiming adverse title For one in possession no other remedy but equity to remove cloud existed. Now, as I think for reasons given in Moore v. McNutt, 41 W. Va. 695, one in possession may sue in ejectment one who simply exercises acts of ownership over or cleaims title to the former’s land. I do not see why one not in actual possession may not maintain ejectment against one not in actual possession, but claiming title or exercising acts of ownership, to setttle title. But that would not oust equity of its an-tecendent jurisdiction to remove cloud. The bill alleges that plaintiff was in possession and that gives jurisdiction to remove cloud. It does not say that she was in actual possessioin; but possession means prima facie actual possession. The demurrer was properly overruled.
Next as to the cause on bill and answer. The answer contained a general denial of all the bill not specifically answered, thus denying plaintiff’s possession. But elsewhere the answer says that on the division of the land of the father Sarah San-som and E. M. Blankenship took possession of their separate parts. This admits, taken alone, Mrs. Sansoin in possessiaon to her limits; but the answer adds that later they agreed upon, marked and held possession according to division line. If so,
As there is no jurisdiction we say nothing as to the effect of the agreed line.
The plaintiff assigns error in discharging the amended bill. IE she wanted any benefit from it, should she not have had it mentioned in the decree? It was her duty to. mature it. She never asked that it be read, if it was matured. Moreover, it was not material, as Adkins was not a necessary party, nor Fry, the commissioner who conveyed the land under the decree. They had no title. The amended bill did not in the least alter the case as to jurisdiction.
The case was heard on only bill and answer. The appellant complains that the case was not .continued to take proof. Why did she not ask for time ? She did not. “When the record does not show that objection was made to the hearing of a cause, the presumption is that the cause was heard without objection.”
The bill was dismissed generally. It is said that it should have been without prejudice. So it ought to have been, as there was no jurisdiction.
We will affirm the decree, but without any prejudice to the rights of any of the parties. The plaintiff had no right to sue in equity, if in fact not in actual possession, unless to restrain trespass pending action to try title at law. Carberry v. Railroad, 44 W. Va. 260; Christian v. Vance, 41 Id. 754.
Affirmed.