58 W. Va. 98 | W. Va. | 1905
This is an appeal. from a decree of the circuit court of Roane county, entered on the 6th day of May, 1904, in a suit in equity instituted on the 6th day of January, 1904, wherein Aristotle Smith was plaintiff and Pocahontas Vineyard and others were defendants. The object of the suit is to partition a tract of two acres of land in Roane county between the children arid heirs at law of Elizabeth A. Smith, ■deceased, or between two of the children and the alienee of the other child. Upon demurrer the bill was dismissed. Of this action of the court the plaintiff complains.
It appears from the bill as follows : I. D. Smith died November 3, 1894. Elizabeth A. Smith, his wife, died intestate November 29, 1896. This two acre tract of land was conveyed by B. J. Taylor to Elizabeth A. Smith by a deed bearing date the 18th of June, 1869. Elizabeth A. Smith made
It is contended by the counsel for the defendants, that a court of equity has no jurisdiction to partition this land, because in so doing it would be necessary to pass upon an adverse and hostile claim of title by Ann E. Looney and her alienee, Elizabeth Stump, to the whole tract. Section 1 of chapter 19 of the Code, provides that tenants in common, joint tenants and coparceners, shall be compellable to make partition, and the circuit court of the county wherein the estate, or any part thereof, may be, shall have jurisdiction, in cases of partition, and in the exercise of such jurisdiction, may take cognizance of all questions of law affecting the legal title, that may arise in any proceedings. This enabling provision of our statute has many times been passed upon by this Court. At first' glance there seems to be an apparent conflict in our decisions, as to the extent of the power of a court of equity to pass upon conflicting claims to real estate in a partition suit, which upon closer examination disappears. Our earlier cases appear to give a very broad interpretation to the statute in this regard. In Hudson v. Putney, 14 W. Va. 561, it was said that under this section, when the title is doubtful, a court of equity should decide it, observing the general rules of practice in equity for ascertaining facts, either by a jury or otherwise, as may be most proper. In Moore v. Harper, 21 W. V. 362, it was said that under this section a court of equity in a suit for the partition of lands may take cognizance of all questions of law affecting the legal title that may arise in the proceedings, such as removing a cloud from the title or passing upon an adverse claim to the land. These cases seem broad enough to enable a court of equity to pass on and determine the claim of a stranger holding a wholly adverse and hostile title, but our later cases,
The decree of the circuit court of Roane county, complained of, being erroneous, is reversed, and the demurrer to
Reversed.