116 Va. 986 | Va. | 1914
delivered the opinion of the court.
This controversy originated in a bill filed by Mrs. M. I. Alderson and others for the partition of a tract of land, from which it appears that by deed dated the 20th of January, 1906, T. J. Davis and wife conveyed to W. R. Smith and his mother, Jane Smith, fifty-nine acres of land, in consideration of the sum of $3,000, $1,500 to be paid in cash, and the residue in three equal annual installments, with interest from date. Mrs. Smith, one of the grantees, subsequently died, and the plaintiffs are her children and heirs at law, and William R. Smith, one of the defendants, is her son, joint owner of the land with his mother, and also one of her heirs.
The bill admits that William R. Smith is the owner under the deed from Davis of one-half, and that he has purchased from Joseph Smith, one of the six children of Jane Smith, a one-sixth share in her half, and that William R. Smith, therefore, is entitled to one-half and one-sixth part of the remaining half, and the prayer is that the residue be allotted in kind to the plaintiffs in accordance with their interest, tr if it cannot be partitioned that it be sold and the proceeds divided among the parties.
William R. Smith answered this bill, and denies that he and his mother took equal moieties in the land, but on the contrary insists that he was to have two-thirds and his mother one-third of the tract of fifty-nine acres, and claims that of the cash payment of $1,500 he paid
The case was referred to a commisioner, who made a. report and returned the evidence upon which it was founded, in which he ascertains that the total amount paid by William B. Smith for Jane Smith was $1,254.79. Exceptions were taken by both plaintiffs and defendants, and the court being of opinion that the debt due to William B. Smith by Jane Smith should be credited with $400 as of November 1, 1905, Jane Smith having paid $1,150 on the first payment on said land, and that said indebtedness of Jane Smith to William B. Smith should-be further credited by the sum of $147, as of the 1st of January, 1909; the court being of opinion that John Smith paid this amount on said land for Jane Smith, and that these two payments should be deducted from such indebtedness of $1,254.79, entered a decree to this effect and in all other respects confirmed and approved the report of Commissioner Kidd.
In Jarrett v. Johnson, 11 Graft. (52 Va.) 327, it was held, that “Where there is a joint purchase of land by two, to whom it is conveyed, and who give their bond for the purchase money, in the absence of proof of any agreement between them to the contrary, they are entitled to the land in equal proportions;” that “one of the purchasers having previously made a conditional contract for the purchase of the land, agreed in writing with the other, that if the contract was completed this other should have a specified part of the land, but the contract was not completed, this agreement between the purchasers was then at an end, and cannot affect their rights under their joint purchase;” that “in such case of a joint pucrhase, parol evidence is not admissible to prove an agreement between them for an unequal division of the land.”
The decree of the circuit court is. always entitled to respect, and there.-is always a presumption in favor of its correctness. We cannot say upon the proof in this case, which is contradictory and by no means convincing, that the circuit court committed any error in deciding that the grantees in the deed from Davis and wife, took equal moieties.
With respect to the payments upon the land, if it had been established by the evidence that William E. Smith
It is proper to say, further, that we are of opinion that William R. Smith was an incompetent witness in his own behalf, his mother, a party in adverse interest to him, being dead.
We are, for these reasons, of opinion that the decree of the circuit court must be affirmed.
Affirmed.