56 W. Va. 296 | W. Va. | 1904
Lead Opinion
Hamilton Stalnaker departed this life, intestate, in 1893, leaving surviving him twelve children and the children of one deceased. He died seized of several tracts of land among which ■were two tracts of wild lands containing in the aggregate two ‘thousand three hundred and eighty-seven acres. In 1894, Martha D. Yocum, one of the heirs-at-law of said Stalnaker, filed 'her bill in the circuit court of Randolph county, alleging that -the said lands could not be partitioned in kind, and praying that ■the same might be sold under a decree of the court, and the proceeds divided among those entitled thereto. Benjamin C. Stal-naker and nine other of the heirs of the said decedent filed their answer to Mrs. Yocum's bill, denying that the land was not susceptible of partition in kind, and praying that said interest of the plaintiff, Mrs. Yocum, in the wild lands, might be run off to her, and that the remainder might remain undivided. ‘On the 34th of October, 1899 “It appearing to the court from the deed of conveyance of Martha D. Yocum, the plaintiff, and her husband, to Shelton L. Reger, trustee, that he has become vfche owner of her undivided interest in the land situatg in this
The defendants, the Tygarfs River Lumber Company and W. S. Tolbard, filed.their separate answers respectively, and' admitted building the logging railroad upon a part of said two thousand three hundred and eighty-seven acres of land, and the cutting of timber on two hundred or three hundred acres of said land, but denied that it would in any way interefer with a fair partition of the land; that the cutting upon said land was upon that part assigned by the commissioners to the Mill Creek Coal and Lumber Company, and which respondents supposed would be confirmed by the court, and denied all the material allegations of the bill not admitted to be true, and asked that the injunction be dissolved, especially so far as to permit the-use of the logging railroad. On the 11th of July, 1903, the injunction was so modified as to permit the defendants to operate the railroad constructed over said two thousand three hundred and eighty-seven acres of land. On the 8th day of August, the
The important question to be decided in this case, and which •seems never to have been passed upon in this State, is raised by the first exception to the report of the commissioners that no notice was given to Wamsley and Stalnaker of the time of executing the order of partition. Section 1, chapter %9, Code, gives jurisdiction to the circuit courts in cases of partition and provides that “Iff the exercise of such jurisdiction, may take cognizance of all questions of law affecting the legal title that may arise in any proceedings.” The usual mode of exercising such jurisdiction is by suit in equity. All tenants in common, joint-tenants and co-parceners interested in the real estate to be partitioned, are necessary parties to such suit or proceeding, and must be summoned, or brought into court by order of publication, if non-residents' or unknown, as in any other case. The statute does not prescribe the mode of procedure and makes no provision for notice to be given to parties interested, of the time
Reversed.
Dissenting Opinion
(dissenting) :
We dissent from the decree of reversal in this case which is 'based on want of notice by the commissioners of partition of the time fixed for making the partition. We do not tln'ulr that notice is essential. The statute of partition makes no mention of .•such notice. It is not required by that statute in any of its .provisions. The notice which the decision in this case requires will be regarded as formal legal notice, and carried out to its logical conclusion would require publication of such notice as to a non-resident owner or party in interest; for it is a legal notice, one required by law under the holding of this Court, and how such publication can be dispensed with we do not see. The non-resident is just as much entitled to notice as the resident owner or party in interest, and the Code, chapter l&l, section 2, provides that a legal notice to a non-resident may be published in a newspaper, and no other mode of notice to him is provided by law, except by service outside the. State. This will be exceedingly inconvenient and costly, and we do not see any law -requiring such notice. The parties have, been brought before the court, and they must watch the proceedings therein, including the proceedings of the commissioners. Besides, they have their day in court upon the coming in of the report. They must 'be present when it comes in and do what is necessary to protect their interests by exception or otherwise. If they desire to be present on the ground, they can ascertain from the'commissioners the time when they will go upon the land to’ view it in order to make the partition. They must know that a decree for petition has been made, and they must exercise some diligence to be present when it is to be executed. The court simply employs the commissioners to view the land instead of doing so itself, and they must attend, if they desire. Such a notice is neither
We cannot see any office to be performed by notice. True, the parties might be present before the commissioners to make-their claim; but we can see no other office that the notice could perform and we do not see that it is a right given by law to-make any argument before the commissioners, we say right. The commissioners go upon the premises, view them, and form their own estimate of the value of the whole tract and the relative value of the parcels set apart to the different heirs. We do not suppose that the parties have right to summon witnesses and have their evidence heard by the commissioners. Under our practice that is never - done. Such evidence is to be heard in court when the report shall come -in. No facilities under our practice enable evidence to be taken in the field. Who reduces-it to writing? If not reduced to writing, how can incompetent evidence be eliminated ? How can exception be taken and noted against the incompetent evidence? We do not suppose, in short,, that there can be any trial before the commissioners in the-country. Then, what function does the notice perform?