86 Va. 638 | Va. | 1890
delivered the opinion of the court.
Lr. John B. Radford and Elizabeth C., his wife, of Montgomery county, Virginia, were the owners of valuable real estate. They had four children: Yannie R., the wife of GL C. 'Wharton; Elizabeth, who married R. IT. Adams; Mary McC., who married the appellant, William T. Yancey, Jr.; and a son, J. L. Radford. In 1869 Dr. Radford and wife executed a writing, not under seal, by which the said Wharton and wife were put in possession of a part of their real estate. In 1871 the said Yancey and wife, by leave of Dr. Radford, moved-upon and took possession of the northern one-half or part of the farm called Rockford, and Adams and wife did the same as to the southern part of the said Rockford farm, and a partition line was subsequently run between the two parcels. Dr. Radford having died in 1877, a creditors’ suit was instituted to subject his real estate to the payment of his debts. In 1879 an agreement was entered into between Mrs. Radford, Dr. Rad-ford’s widow, and the said heirs, and the husbands of such as Avere married, providing for sales from the respective shares of
The deed in question operated a partition of the said lauds ■of Dr. John B. Radford,.and conveyed no estate to the appellant. The land involved .in-this dispute, the northern part of the Rockford farm, was the share of Mrs. Yancey in the lands inherited by her and the other heirs. This was ascertained to be her share by. proceedings employed to divide the Radford lands, set forth above.. It was granted, relinquished, and released to Yancey and wife and the heirs of the wife. This was doubtless intended by the parties to be considered, along with the deeds to the other heirs, as operating as a partition of the Radford lands among the Radford heirs. There was no other consideration for any part of the transactions. The Rad-ford heirs owed nothing to William T. Yancey. He had not, and there is no preteuse that he had, any claim whatever against them, except such as he claimed through his wife. It is unreasonable to suppose that they intended to give him or to grant him anything not his own. But suppose they did; and suppose, as is so earnestly claimed, that this was a family settlement and compromise between the parties, and that, by this family settlement, Yancey was to be given or granted the lands of his wife, and this deed was for that purpose drawn and executed. What did the Radford heirs grant by their deed to Yancey? Concede that they granted all they had in these lands, what was that ? It was the share of Mrs. Yancey; it was no part of their shares. They had no interest whatever in Mrs. Yancey’s share of her father’s land. Having received their own, Mrs. Yancey was entitled to receive hers. It was hers by descent from her father, in absolute property, once designated, separated from the residue, which went to her brother and her sisters. It passed, under her right of inheritance, to her; and the other heirs, having received their full allotment of the same, could no more withhold than grant—it was not their property. Ho title passed by this deed, nor by
This deed,- standing alone,'and all the deeds standing together, could effect nothing more. Neither the husband nor the other heirs could do any act which would divest the title of Mrs. Yancey in these lands. It could only be done by Mrs. Yancey herself, in tire mode prescribed by law. Norman v. Cunningham, 5 Gratt., 63; Rorer v. Roanoke National Bank, 83 Va., 589. Mrs. Yancey has not conveyed, nor in anywise aliened or relinquished, her title- in the said land, and died without having given birth to any children. It passed to her heirs at her death, whomsoever they may be, and the appellees herein are conceded to be such -heirs. The husband has no title by the curtesy, having had no child born to him of the marriage. But he claims to hold the land under the deed from the other heirs (1) by reason of the grant to hind therein, which appears wholly untenable; and (2) by the principle of estoppel, against the heirs of Mrs. Yancey. And this latter claim the- judge of the circuit court has conceded as to one-
Lewis, P., and Hinton, J., dissented.
Decree reversed in favor oe the appellees.