115 Va. 418 | Va. | 1913
delivered the opinion of the court.
One of the defenses set up by the present OAvners of the Hylton parcel of land and the W. B. Gibson parcel, known in the record as the Van Burén Bolling land, is that they are the OAvners of the mineral by adversary possession. The appellant insists that the conveyance to Price and Steinman of the minerals 'embraced in their deed operated as a severance of the mineral interest from the surface. This is denied by the appellees. They claim that in order for a conveyance of the mineral in land to effect a severance of the mineral interest from the surface, the grantor in the deed must be the owner of the legal title, and that as the grantors in the deed to Price and Steinman were not, as the appellees claim, the owners of the legal title Avhen they
Whether the grantors were or were not the owners of the legal title ,at that time, or whether or not it he true as contended by the appellees that a severance of the mineral interest from the surface is not effected by the conveyance of the mineral and a reservation of the surface unless the grantor in such conveyance be the owner of the legal title, need not be determined in this case; for if it were held that the grantors in that deed were clothed with the legal title, or that the conveyance by the owners of the equitable title would effect a severance as well as a conveyance by the owner of the legal title, there was no severance in this case.
It is well settled that the general owner or owners of land may grant all the minerals in the land, or any particular species of them, as coal, iron or lead, etc., and remain the owner or owners of the surface, etc., or may grant the land and reserve the minerals or any particular species of them and thus create a separate estate in the minerals, or mineral, reserved distinct from the land in which they are found. Va. Coal & Iron Co. v. Kelly, 93 Ya. 332, 336, 24 S. E. 1020; Interstate C. & I. Co. v. Clintwood, &c., 105 Va. 574; 54 S. E. 593; Morison v. American Association, 110 Va. 91, 65 S. E. 469; Adam v. Briggs, 7 Cush. (Mass.) 361, 366-7; Caldwell v. Copeland, 37 Penn. St. 427, 78 Am. Dec. 436; Barringer and Adams on Mining, &c., 35-6. Yet such a conveyance by less than all the joint tenants where land is so owned, does not effect a severance of the mineral interest from the surface, but makes the grantee, if he be a stranger, a tenant in common with the joint tenant who did not unite in the conveyance.
While a joint tenant has capacity to transfer his undivided share in the land, he has no right to convey by metes and bounds any part of the land, or to convey the
The reason for this doctrine is stated by Chief Justice Shaw in Adam and Others v. Briggs Iron Co., 7 Cush. 361, 368, and by Allen, P., in Robinett v. Preston, 2 Rob. (41 Va.) 273, 276-8.
In this case if the grantors in the conveyance to Price and Steinman had conveyed their entire undivided interest in the land, the surface as well as the minerals, it would not, no matter how that interest was described, have effected a severance of their interest in the land from that of their sister, Mrs. Hylton, but would have made their grantees tenants in common with her. Robinett v. Preston’s Heirs, supra; Cow v. McMullen, 14 Gratt. (55 Va.) 422; Buchanan v. King, 22 Gratt. (63 Va.) 422; Wood v. Early, 95 Va. 307, 312-13, 28 S. E. 374; Freeman on Co-tenancy, secs. 194-6. A fortiori, a like conveyance of their undivided mineral interest only could not operate as a severance of their mineral interest from the surface.
In some jurisdictions a conveyance by less than all of joint tenants of their interest in the land by metes and bounds, or of their mineral interest only, seems to be regarded as void against their co-tenant (Adam, &c., v. Briggs, supra; Freeman on Co-tenancy, 198-203), but with us while one joint tenant cannot make any conveyance to the prejudice of his co-tenants, yet the deed is not void, but would, especially under our statute, be effectual to pass the interest conveyed, making his grantee a tenant in common with his grantor’s co-tenants. Code, sec. 2419; Robinett v. Preston’s Heirs, supra; Cox v. McMullen, supra; Buchanan v. King, supra; Wood v. Early, supra; Freeman on Co-tenancy, supra.
The next question to be considered is whether or not Hylton or those claiming under him acquired title to the
• It is well settled in this State that where a purchaser, if he be a stranger to the title, takes a conveyance of the whole estate in a tract of land, although his grantor was only a tenant in common with others, and in pursuance thereof enters into the exclusive possession of the land, claiming title to the whole, it is an ouster of the other co-tenants and the grantee so entering and claiming title may rely upon his adversary possession if continued the statutory period. Johnston v. Va. Coal & Iron Co., 96 Va. 158-163, 31 S. E. 85; Preston, &c., v. Va. Min. Co., 107 Va. 245, 248, 57 S. E. 651; Freeman on Oo-tenancy, sec. 197.
It is also well settled that as between tenants in common and others claiming in privity, the entry and possession of one are ordinarily deemed the entry and possession of all, and this presumption will prevail in favor of all until some notorious act of ouster or adversary possession is brought home to the knowledge of the others. Until there is notice, actual or constructive, that the possession is hostile, it will be deemed amicable, notwithstanding the tenant’s possession may have been wholly adversary. Stonestreet v. Doyle, 75 Va. 356, 378-9, 40 Am. Rep. 731; and cases cited; Pillow v. Southwest, &c., Co., 92 Va.. 144, 23 S. E. 32, 53 Am. St. Rep. 804. Yet a tenant in common may enter adversely and claim in severalty, and where he does the statute of limitations will run in his favor an.d against his tenants in common. See King v. Carmichael,
In considering the question whether or not Hylton’s entry and possession was adversary and hostile, the familiar principle must be borne in mind that when one enters upon land he is presumed to enter under the title which his deed purports upon its face to convey, both as to the boundary or extent of the land and the nature of his title. The deed-to Hylton from his wife aud children of James M. Gibson in the year 1877 purported to convey the fee in the whole. It is not controverted that he entered and took possession of the land under that deed, and in the absence of anything to the contrary he is presumed to have entered under a claim of title to the whole in fee. This is not a case where a tenant in common being, or entering into, possession as such afterwards attempts to claim that his possession was adverse to his tenants in common. Hylton did not enter as tenant in common. From the first he is presumed, indeed he is proved, to have claimed under his deed, and there is nothing to shoAV that he or those Avho claim under him ever acknowledged that the title to the land was anything other than as it appeared upon the face of his deed.
If Hylton had been in possesion of the land under the parol partition as the vendee of C. W. Gibson, or perhaps in right of his Avife, a different question Avould be presented; but taking a conveyance, which Avas duly recorded, of the
The evidence clearly shows that Hylton was in the exclusive possession of the land from the year 1877, when he entered under the conveyance of that date, claiming title to the whole tract in fee, until the institution of this suit, a period of thirty years or more. He paid taxes on it throughout these years as the fee simple owner; resided upon it the greater portion of the time; conducted mercantile operations upon it; built upon it, cleared portions of it, and mined coal for his domestic purposes and small quantities for sale. Whether his coal operations during that period would have been sufficient to have given him title to the coal if the mineral interest had been severed from the surface need not be considered, since as we have seen there was no such severance; but unquestionably his acts of adversary possession were sufficient to create in him a complete title to the land in fee, mineral as well as surface, for his deed covered both.
It follows from what has been said that there was no error in the circuit court’s action in reference to the Hylton portion of the 700 acre tract.
The action of the circuit court in holding that the appellant was the owner of a four-fifths mineral interest in the Van Burén Bolling parcel of the 700 acre tract'of land, and decreeing a partition of the mineral interest therein, is assigned as cross error.
When W. B. Gibson conveyed his undivided mineral interest in the 700 acre tract of land to Price and Steinman, he was only about nineteen years of age. After his ma
The court is of opinion that in so far as the decree of the circuit court holds' that the appellant has any interest in the mineral on the Van Burén Bolling land and directs partition thereof with costs, it is erroreous and must be reversed, and in other respects affirmed.
Reversed in Part.