60 W. Va. 285 | W. Va. | 1906
Lead Opinion
John Stover made his will dated November 3, 1851, and which was admitted to probate on the 24th of the same month in the county court of Raleigh county, in which will he dispossed of his “home place” in the following item: ‘ ‘3rd. My home place on which I live I will to my beloved wife during her life time and at her death it is to belong to Silas, Lewis, Stephen, Daniel, (my sons), equally. And my afflicted daughter Manervy, is to be taken care of by her mother and my four sons to whom I will the home place, or if deemed best Manervy may be removed to the Lunatic Asylum at Staunton, Va.” This is the only part of said will involved in this suit.
On the 1st day of April, 1867, Silas Stover, Stephen Sto-ver and Lewis Stover entered into a contract in writing under seal agreeing to make partition of the said “home place” among themselves, in which they partitioned the said “home place” describing the boundaries of the land which the said Silas should have and also which the said Lewis should take, and providing that “all the remainder of said land is Stephen’s.” On the 3rd day of August, 1867, Daniel Stover and his wife by deed of that date sold to Stephen Stover all the interest of said Daniel in said tract of land.
At the January rules 1903, Lewis Stover filed his bill in chancery in the circuit court of Raleigh county against the
The defendant Stephen Stover appeared and filed his demurrer and answer to the plaintiff’s bill; depositions were taken on behalf of plaintiff, and the deposition of' Stephen Stover in his own behalf, there being no appearance for the other defendants who were' duly summoned, prior to the filing of the bill. The answer of Stephen Stover contains this allegation: “Your respondent further says that Lewis Stover on the 18th day of October, 1856, conveyed by deed to your respondent and Daniel Stover his entire interest in the land of John Stover, deceased, to take care of his sister, Minerva
This partition agreement does not in terms convey title to Lewis, but being under seal imports a valuable consideration. 1 Beach on Mod. Cont. section 5; Assurance Co. v. Hotchkiss, 90 Wis. 415; 63 N. W. R. 1020; Storm v. United States, 94 U. S. 76. And further as to the matter of consideration, defendant Stephen Stover in his answer, referring to the contract of partition, says: “No doubt if said contract was executed as claimed, it must have been with the understanding and agreement that the said Lewis Stover would assist in the care, maintenance and support of said Minerva Stover as required of him by the Will aforesaid. ’ ’ Here is an admission in his answer on the part of the defendant, that there was a valuable consideration passing from Lewis if the contract was actually executed, and as to the fact of its execution there is not the slightest room for doubt. It would seem to be claimed that because Lewis had once conveyed his interest he never could be again invested with any rights in the land in any manner. By the said contract the parties bound themselves, their heirs and administrators in the sum of five hundred dollars for the true performance of the division or partition agreed upon, and that if any of the parties should lose any of the said land held and improved by either of them the others were to make it good. Here • was a distinct responsibility assumed,
Does not the contract of partition under which plaintiff held possession of the portion of the property set apart to him amount to color of title? In Core v. Faupel, 24 W.Va. 238, Judge Snyder, in speaking for the Court, at page 241 says: “The principal office of a claim or color of title is to define the boundaries and describe the extent of the adverse holding. If it is a mere claim — that' is, a mere assertion of right without, any paper title — the adverse holding-will be limited to the actual enclosure of the claimant. Kincheloe v. Tracewells, 11 Grat. 587. But, if it is founded on a deed or olher documentary title, the holding will be treated as co-extensive with the boundaries contained in such deed,or document,provided the possession of the adverse claimant is exclusive. In Creekmur v. Creekmur, 75 Va. 430, Judge Staples, at page 438, says: “Without attempting now to describe color of title it may be perhaps sufficient to say its effect is to fix the chnracter of the occupant’s possession and to define its extent and limits.” In that case the Sixth Point in the Syllabus is a quaere: “What is color of title?” Oney v. Clendenin. 28 W. Va. 34-54; Adams v. Alkire, 20 W. Va. 480-485. Possession under a void deed is sufficient to give color of title. Randolph v. Casey, 43 W. Va. 289; Swan v. Thayer, 36 Id. 46; 1 Cyc. 1047; Code, chapter 90,
It is claimed by appellant that the court erred in making his written opinion a part of tbNrecord in the case, “which is special error apparent on the face of the record.” There is- certainly no impropriety in the judge of a circuit court filing a written opinion in a case, but on the other hand it is commendable in him to do so, and if the appellee or defendant in error desires to do so he can bring it up at his own expense; the appellant or plaintiff in error is not bound to bring such opinion up as part of the record.
For the reason herein set forth, the court erred in dismissing plaintiff’s bill, hence the decree complained of is reversed and annulled and the Court proceeding to render such decree as the circuit court should have rendered, it is adjudged, ordered and decreed that the defendants are required to make, execute and deliver to plaintiff an apt and proper deed with special warranty to the plaintiff for the portion of land set off and allotted to him by the contract of partition and that this be certified to the circuit court of Raleigh county and on the failure or refusal of the defendants to execute said deed that the circuit court appoint a commissioner to execute and deliver the same in the name and on behalf of the said defendants.
Reversed.
Concurrence Opinion
(concurring:)
Say that the deed from Lewis Stover to Steven Stover is in the case. From this it is urged that the deed took away Lewis Stover’s interest, and it could not be re-vested in him but by deed. We cannot say it was not intended to operate, or ignore it; but we can say that the subsequent agreement recognized a joint ownership. Being under seal it estops Steven Stover from denying Lewis a share. Though the deed did pass title from Lewis, we may say he bought it back, or acquired right by purchase, release or in some way. The agreement warrants us to say so. The parties were
Concurrence Opinion
Note by
We concur in Judge Brannon’s view of the case, and are unable to agree in all the reasoning set forth in President McWhorter’s opinion.