81 W. Va. 76 | W. Va. | 1917
The defendant Sallie A. Casto was the owner of a one-half undivided interest in a tract of land described as containing one hundred and eleven acres, more or less, and the plaintiffs were the owners of the other one-half undivided inter est therein. This tract of land adjoined another tract owned by Mrs. Casto known'as the Wm. Petty tract of one hundred and thirteen acres. In the month of May, 1910, the plaintiffs and the defendant Mrs. Casto agreed to partition the
The' defendant Sallie A. Casto demurred to this bill and insists that such demurrer should be sustained, upon the ground that the plaintiffs were so negligent in having the survey made that they can procure no relief because of the mistake of the surveyor, because of their laches, because the bill is not a bill for partition, but a bill to reform a partition already made, because they are bound by the deeds and can get no more than was conveyed to them by the deed executed by Mrs. Casto, because the partition by E. E. Hughes at the instance of the parties was a submission to him as arbitrator of the question of dividing the land, and the plaintiffs cannot now claim any more ,than -was assigned to them. It may be said that if the plaintiffs had -had another survey of this land made sooner than they did this mistake would have been discovered, but does the fact that the mistake was not discovered bar the plaintiffs from setting up claim or interest in land which was not in fact partitioned, and allow the defendant to hold this land as her own? It appears clearly from the allegations of the bill that the tract of land sought to be partitioned is not included in either of the deeds of partition, and Avas not assigned to either of the parties. How"did the plaintiffs lose their title to it? The deed made by them to Mrs. Casto does not purport to convey any interest in it, and the partition made by E. E. Hughes did not purport to assign it to the defendant Mrs. Casto as a part of her share of the joint estate. It is true as a general rule that when joint owners of real estate partition the same and execute deeds, they are each estopped to assert any title or interest except to the part assigned to them, but this doctrine only applies when such partition of the estate is of the whole thereof. Where the parties, either through the fraud of one of them, or by the mistake of both, do not include in the land so partitioned a part of the joint estate, a court of equity has full poAver either to set aside the partition so made, or, if either of the parties has so acted and treated the part assigned to them as to make it inequitable to have a partition thereof, or to include the same in a general partition of the
In DeWitt v. Hawkins, 107 Ill. 109, it was held that where land was partitioned under an order of the court, and the commissioners in making the partition, by mistake, excluded a strip of land belonging to the joint tenants, and did not assign it to either of them, a court of equity would correct the mistake by dividing such strip between the joint tenants. In that case it was held that granting such relief in no sense changed the original decree of partition, but simply subjected to the action of the court that part of the joint estate which had been omitted by the mistake of the commissioners. So in Fowler v. Wood, 6 L. R. A. (N. S.) 162 (Kan.) 85 Pac. 763, it was held that, where' commissioners appointed for the purpose of partitioning a tract of land, by mistake, exclude from the parts assigned by them a part of the joint estate, the court will partition the part so excluded and assign it to the owners of the joint estate in .proportion to their respective interests therein. In Cartmell v. Chambers, 54 S. W. (Tex.) 362, it was held, where three parties who owned a tract of land which they thought contained only one lot of seventeen acres, partitioned this lot among themselves, when in fact the land owned by them contained three lots with an area of fifty-two acres, that one of the joint tenants was entitled to have the two remaining lots partitioned between himself and his co-owners upon discovering the mistake as to the extent of their boundaries, and that he was not estopped by any deed, nor by laches,_ to set up this claim. It is a little difficult to see how an estoppel by the deed can be asserted against the plaintiffs that would not apply with equal force against the defendant, nor does it appear from the bill that there is any good reason why the plaintiffs should be denied their title to the one-half of the tract of land'which was never partitioned between the parties. It is perfectly competent for a court of equity, as before stated, to take jurisdiction of this cause of action, either upon .the ground of the fraud alleged on behalf of the defendant in securing the partition to be made in the way that
The defendant Sallie A. Casto assigns as error the action of the court in appointing commissioners to partition the tract of about twenty-nine and one-half acres of land lying between the boundary of the Petty tract and the boundary of the tract laid off to her by R. It. Hughes, as aforesaid), her contention being that the 111 acres owned by her and the plaintiffs jointly did not include all of this 29-1/2 acres. She contends that the 111 acre tract only contains about 102, acres, and that there is a parcel of about sixteen acres- of! land which was not partitioned between herself and the plaintiffs; while, according to the plaintiffs ’ contention, 'the 1111 acre tract adjoins the Petty tract, and includes all of the land lying between the Petty line and the tract assigned to Mrs. Casto in the Hughes partition. This parcel contains about twenty-nine acres not assigned to either of the parties in the Hughes partition. In all of the deeds filed in this-, record describing the 111 acre tract of land it is referred? to as joining the Petty tract; the beginning corner is a point in the line of the Petty tract, and after going around the tract by courses and distances it comes to the Petty tract and calls for a corner thereof, and the closing line of the 111 acres is a line of the Petty tract." The surveyors who testified on behalf of the plaintiffs show that they located this Petty tract; in fact,' its location is not in dispute. No wit
It is assigned as error that .the court ordered the partition of this 29 acres of land instead of setting aside thu partition deeds made under a mistake as to the boundaries of the 111 acre tract, and making a new division of the entire tract. ' It appears that the plaintiffs have, since their 43 acres were laid off' to them, leased the same for oil and gas purposes, and it might be entirely inequitable to the holder of this oil and gas lease to set aside these deeds of partition and direct commissioners to partition the whole tract. Where this is found to be the case it is entirely proper for a court of equity to leave undisturbed the assignments already made and make partition of the parcel which was not dealt with by the parties themselves. Freeman on Cotenancy and Partition, §534; DeWitt v. Hawkins, 107 Ill. 109; Fowler v. Wood, (Kan.) 6 L. R. A. (N. S.) 162; Barnes v. Boardman, 157 Mass. 479; Cartmell v. Chambers, (Tex.) 54 S. W. 362. But the defendant says that it might be inequitable to her to divide the 29 acres of land, for the reason that the commissioners might not lay off her part of the same adjacent to the 43 acres already assigned to her. Should they not do so it would leave a tract of land owned by the plaintiffs between her 43 acres and the part assigned to her, and that in view of the fact that she is the owner of the oil and gas under the land, with the right to take the same out, it would subject her estate in the oil and gas to a very severe burden tof have it thus divided by a tract of land owned by the plaintiffs. There is nothing in this contention, inasmuch as the defendant Mrs. Casto is the owner of the oil and gas under the Petty tract, and whichever.part of the 29 acres may be assigned to her will necessarily be adjacent to lands under which she now owns the oil and gas.
It is also insisted that the court' erred in decreeing that the commissioners assign to the plaintiffs one-half of said tract of land so remaining unpartitioned, and to Sallie A. Cas-to and her grantee the other one-half thereof, for the reason
The court in this ease decreed that the plaintiffs recover from the defendant Sallie A. Casto the costs incurred by
It is also assigned as error that the court does not provide that the commissioners shall be sworn before proceeding to execute the decree. While it may be true that ordinarily a decree of partition should provide that the commissioners take an oath before entering upon the discharge of their duties, the fact that this is omitted does not render the decree reversible. If it should turn out that the commissioners executed the decree without taking «uch oath, it would perhaps be cause of exception to their report; and if it appeared that the report was prejudicial to either party it might be easier to' overthrow it if the commissioners had not been sworn than it would be had they been properly sworn before proceeding to execute the court’s order. It is not to be presumed that the commissioners will enter upon the performance of their duty without complying with the law in this regard.
We find no error in the decree complained of, and the same is affirmed. Affirmed.