Davis v. Tebbs

Lewis, P., delivered the opinion of the court. The plaintiff in the court below, the appellee here, filed his bill on the 20th of June, 1867, alleging that he was entitled to an undivided third interest in a certain tract of land, situate in the county of Loudoun, derived by him under the will of his grandfather, William Carr, senior, deceased, and which land was in the possession of the defendant, the appellant here. That under the then recent construction of the will by this court, in the case of Tebbs v. Duval, 17 Gratt. 349, Mrs. Betsy Tebbs, daughter of the testator and mother of the plaintiff, took an estate for life in the land, with remainder in fee to such of her children ■ as might survive her. That the life tenant died on the 18th of March, 1852, leaving surviving her three children, whose interest thereupon became vested. That by some arrangement one Thomas Triplett, a son-in-law of the said Betsy Tebbs, had become entitled to the interests of two of the surviving children, sisters of the plaintiff, and that by deed dated the 20th of December, 1852, the said Triplett had undertaken to convey the absolute title to the whole tract of land to the defendant. And the prayer of the bill — 603 — was that partition of the land between the plaintiff and the defendant be decreed; that an account of rents and profits be ordered, and for general relief. The defendant demurred to the bill, and also answered. And the cause coming on to be heard, the demurrer was overruled and a decree entered for the plaintiff; whereupon the defendant appealed. Various errors are assigned, of which the first is that the circuit court erred in overruling the demurrer. It is insisted that the bill shows no equity on its face, and that the plaintiff’s right ought first to have been established in an action at law. We. are of opinion that this assignment is not well taken. The jurisdiction of a court of equity to decree partition in a case like the present is too well established to admit of doubt. Indeed, the objection of the appellant is decisively met by the statute itself, which, in order to prevent a multiplicity of suits, expressly confers on courts of equity jurisdiction of all questions affecting the legal title to lands, of which partition is sought by a suit in equity. It enacts as follows: “Tenants in common, joint tenants, and coparceners shall be compellable to make partition, and the court of equity of the county or corporation wherein the estate, or any part thereof, may be shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceeding.” Code 1873, ch. 120, sec. 1; 2 Min. Insts. 416, et seq. It is also contended that the bill is demurrable, because it does not allege that the land was purchased by the defendant with notice of the plaintiff’s claim. But this position is clearly untenable. An authenticated copy of the will is exhibited with the bill, from which it appears that, in 1791, the will -was duly admitted to probate and ordered to be recorded. The — 604 — presumption, of course, is, though the record does not show, that it was recorded. But whether recorded or not, it is referred to in subsequent deeds which are links in the chain of title conveyed by Triplett to the defendant in 1852, and thus the latter was put upon inquiry when that conveyance was made. And “whenever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty.” Cardova v. Hood, 17 Wall. 1; Effinger v. Hall, ante p. 94. The case of Carter v. Allen, 21 Gratt. 241, upon which the appellant relies, has no application to the present case. There land was sought to be recovered on the strength of a latent equity of which the purchaser had no notice, actual or constructive, and it was accordingly held that the plaintiff was not entitled to recover. The mere statement of the case is sufficient to show that it has no bearing on the case in hand. It is next contended that the circuit court erred in decreeing for the plaintiff, because there was no evidence to identify the land mentioned in the bill as that of which the defendant was in possession, and in respect of which partition was decreed-A sufficient answer, however, to this objection is, that the defendant himself filed as exhibits with his answer copies of certain deeds under which he derived title, and which, taken in connection with the answer, not only connect the land in question with the will of William Carr, senior, but show that it was allotted, as part of the real estate devised, to Triplett and wife in the lifetime of Mrs. Betsy Tebbs, the life-tenant. In other words, the answer and the exhibits taken together identify the land, and thus obviated the necessity for proof on that point by the plaintiff. The title, however, of the plaintiff is denied in the answer, and this brings us to the consideration of the real merits of the case. As we have already seen, the mother of the plaintiff took — 605 — under the will of her father, as construed by this court in Tebbs v. Duval, a life estate in the land, with remainder in fee to such of her children as might survive her. Of seven children, three only survived her, to-wit: two daughters and a son—Samuel J. Tebbs, the plaintiff; so that at the death of the life-tenant in 1852, the title of the plaintiff, theretofore contingent, became vested, unless in some way it had been previously relinquished or parted with. And the appellant contends that this was done by virtue of certain deeds and decrees, to which reference will be briefly made. It appears that by deed, dated May 2, 1817, the life-tenant surrendered to her children her life estate in the land, and that soon thereafter a suit for partition between the children was instituted in the county court of Prince William county. Pending that suit, a deed, dated May 27, 1818, was executed by and between the adult children, to which the plaintiff, being at the time an infant, was not a party, in which they covenanted to abide by the partition to be made in that suit. The record of that suit was destroyed during the late war, and we are not informed as to the exact scope of the pleadings or of the decrees therein, but it appears from certain deeds filed in the present suit that partition between the seven children then living was decreed and made. It is evident, however, that the partition proceedings were instituted, and the deeds between the parties were executed under a mistaken construction of the testator’s will; that is to say, under the idea that the remainder upon the determination of the life estate of Mrs. Tebbs was to her children who might survive her and to the representatives of such of her children as might then be dead. But however that may be, undoubtedly the source of the parties’ titles is the will, and not the partition proceedings in the county court, and consequently the rights of the plaintiff are not affected by those proceedings, unless, — 606 — as the appellant contends, he is estopped from denying their binding force and effect by his deed, dated May 2, 1827, executed after he had attained the age of twenty-one years. By that deed, it is true, he did assent to and ratify the partition that had been made, but not so far as Triplett, the grantor of the defendant, was concerned. Neither Triplett nor his wife were parties to that deed, and it would seem they were intentionally excluded from the benefit thereof, and consequently the plaintiff is not estopped by the deed from asserting his claim as against Triplett, or those claiming under him. It is contended, however, that the bill should have been dismissed, on the ground of laches on the part of the plaintiff in asserting his claim. But this position is not supported by the facts and circumstances of the case. It appears that within two years after the death of the life-tenant the suit of Tebbs v. Duval was instituted, the object of which, .among other things, was to obtain a judicial construction of the will of William Carr, senior, and that the decision of this court was not rendered until the 15th of April, 1867. Then it was finally determined that only those of her children who survived the life-tenant were entitled under the will to any interest in the lands devised; and the rights of the plaintiff having been thus determined, the present suit was instituted within three months thereafter. It is also plain that the defence of the statute of limitations cannot be sustained. The right to sue accrued at the death of the life-tenant, on the 18th of March, 1852 (Ball v. Johnson, 8 Gratt. 281; Hope v. N. & W. R. R. Co., 79 Va. 283), and the suit was instituted on the 20th of June, 1867, or fifteen years, three months and two days after the right accrued. But from this time is to be deducted the period of the war and the time during which the stay-law was in force—that is, the time intervening between the 17th of April, 1861, and the 1st of — 607 — January, 1869, which leaves for the running of the statute less than seven years before the suit was commenced. This sufficiently disposes of the case, and the result is that the decree must be affirmed. Decree aeeirmed. ■