| W. Va. | Dec 8, 1900
Emma C. Talbott complains of a decree of the circuit court of Barbour County dismissing a bill in chancery filed by her against John F. Woodford ei al.
The facts in the case, as appear from the competent and incompetent evidence, are as follows, to-wit: By deed dated the 16th day of October, 1876, Henson L. Stout conveyed to John E. Woodford and D. D. Campbell, father of plaintiff, who is his only heir at law, the tract of land in controversy in consideration of five hundred and twenty dollars. Campbell afterwards agreed that Woodford should pay the purchase money and keep the land, but did not make any deed therefor, but gave Woodford a receipt for ten dollars consideration for the release of his bargain, which was lost. Woodford took possession of the land and Campbell on the 10th day of April, 1877, left the State. The last that was heard of him was in the year 1881, in Texas. In the year 1885 Woodford sold and conveyed the land to Joseph M. Dadisman for six hundred dollars after having sold the timber on the land, in 1884, for two hundred and fifty dollars. Dadisman failing to pay the purchase money, Woodford had it sold and bought it in, receiving a. deed from the commissioner of the court on the 16th day of August, 1887. He then, on the 16th day of March, 1888, sold and conveyed the land to V. W. Kittle. He .failing to pay for the land, Woodford brought suit, which was compromised, and Kittle by deed dated the 1st day of January, 1897, conveyed the land back to Woodford.
The plaintiff the sole heir at law of Campbell, was born on the 11th of June, 1874. She arrived at her maturity the 11th of June, 1896. After Kittle deeded the land back to Woodford in
Woodford answered the bill setting out the facts aforesaid, and alleges “that since the purchase of said tract of land respondent has been paying taxes thereon and the same has been taxed in his name and all other expenses connected therewith-have been paid by him, and he has had the actual adverse possession thereof since the 16th day of October, 1876.” This is a sufficient compliance with the rule of pleading the statute of limitations as laid down in Tazewell v. Whittle, 13 Grat. 329, and approved by this Court in the case of Humphrey v. Spencer, 36 W. Va. 11" court="W. Va." date_filed="1892-01-26" href="https://app.midpage.ai/document/humphrey-v-spencer-6594493?utm_source=webapp" opinion_id="6594493">36 W. Va. 11, 16, to the effect that “Anything in an answer which will apprise the plaintiff that the defendant relies on the statute of limitations is sufficient, if such facts are stated as are necessary to show that the statute is applicable.” 13 En. Plead. & Prac. 217; Smith v. Pattie, 81 Va. 654" court="Va." date_filed="1886-04-15" href="https://app.midpage.ai/document/smith-v-pattie-6807600?utm_source=webapp" opinion_id="6807600">81 Va. 654; Smith v. Brown, 44 W. Va. 342" court="W. Va." date_filed="1898-03-23" href="https://app.midpage.ai/document/smith-v-brown-6595748?utm_source=webapp" opinion_id="6595748">44 W. Va. 342.
Plaintiff objects to the competency of certain evidence introduced by the defendant, and also to the reading of the deposition of H. L. Stout for want of sufficient notice of the taking of the same. If the decree of the circuit court, independent of this deposition and the incompetent testimony is right, plaintiff was not harmed thereby and may not complain thereof. Ball v. Stewart, 41 W. Va. 654" court="W. Va." date_filed="1896-03-21" href="https://app.midpage.ai/document/ball-v-stewart-6595342?utm_source=webapp" opinion_id="6595342">41 W. Va. 654; Kimmel v. Shroyer, 28 W. Va. 506; Watkins v. Wortman, 19 W. Va. 78" court="W. Va." date_filed="1881-12-03" href="https://app.midpage.ai/document/watkins-v-wortman-6592418?utm_source=webapp" opinion_id="6592418">19 W. Va. 78. The possession of one tenant in common is the possession of both or all. Such possesion therefore can never be adverse until there is ah actual ouster of the co-tenants or some act deemed by law equivalent thereto. “A convyance by one co-tenant of the entire estate gives color of title, and if possession is taken under it, the grantee claiming title to the whole, it amounts to an ouster of the co-tenants and the possession of the grantee is adverse to them.” 1 Am. & En. En. Law, (2 Ed.) 806, 799. It is also adverse to the grantor in.the deed. Pillow v. Improvement Co., 92 Va. 144" court="Va." date_filed="1895-09-26" href="https://app.midpage.ai/document/pillow-v-southwest-virginia-improvement-co-6809377?utm_source=webapp" opinion_id="6809377">92 Va. 144. So that if Wood-ford’s possession for want of competent proof was not shown to be adverse to Campbell in the year 1876, Dadisman’s possession under his deed from Woodford the 17th day of December, 1885, was adverse to Campbell and amounted to a complete ouster. Emit was manifest and open notice to him and the world that
' Without regard to the question of incompetent or inadmissible evidence, this case is clearly for the defendant Woodford, and the decree complained of is affirmed.
Affirmed.