Cecil v. Clark

30 S.E. 216, 44 W. Va. 659, 1898 W. Va. LEXIS 51

• Court: West Virginia Supreme Court
• Decided: April 9, 1898
• Status: Published

Opinions

Brannon, President:

By patent, in 1851, Virginia granted to Henley Chapman and David Hall a tract of one thousand, seven hundred and fifty acres of land lying in Mercer and Tazewell counties, “the greater part being in Mercer.” Later the patentees conveyed eight hundred and twenty-five acres of it to Per-due, leaving nine hundred and twenty-five acres, but called in these cases eight hundred and fifty acres. The deed recited that the land conveyed to Perdue was all that part of the original survey lying in Mercer; but it gave metes and bounds not certainly telling whether it took all land in Mercer, and the patent said the greater part was in Mercer, and oral evidence shows some of the eight hundred and fifty acres remnant in Mercer. McDowell county was formed wholly from Tazewell in 1858, aud took in all of this land that was in Tazewell. Chapman and Hall died, leaving each five children. Hall died in 1866, leaving a widow, Mary E. Hall, and five children. He left a will giving his estate to his wife for life, with power of disposition, and remainder to his children. In 1875, Mary E. Hall conveyed one undivided fourth of the eight hundred and fifty acres to Johnson under contract that, as the tract had been omitted from the tax books of Mercer, Johnson would replace it on the books, and pay back taxes, and keep it on the books. The deed described the land as in Mercer. Thus Johnson became owner of half the Hall ■half. In December, 1881, all the Hall heirs gave Johnson an option to purchase the other half of the Hall half, and under it they conveyed it to Johnson, 18th December, 1882. By deed of August 2, 1882, Manilius Chapman, one of the five heirs of Henley Chapman, conveyed the whole of the Chapman moiety to Johnson. The Chapman heirs, in 1889, brought a chancery suit against Johnson and others to cancel the deed from Manilius Chapman to Johnson, and certain conveyances under which, from Johnson, the trustees for Flat Top Coal Company, claimed this Chapman moiety, and asked partition and assignment of their shares. In 1889 the Hall heirs brought a chancery suit against Johnson and others to cancel their deed to Johnson for the half of the Hall moiety, on the ground of fraud in its procurement, and asked partition of the land and the assignment of their shares. Both sets of heirs attacked a tax deed made to the coal company as assignee of a tax purchase made by Johnson affecting their entire interest, and also a conveyance made by the commissioner of school lands of McDowell county to the coal company under a sale in a proceeding in the circuit court of that county against the land in controversy as forfeited. The cases were heard together. The decree admitted four of the Chapman heirs to partition under their father’s right to the Chapman moiety, giving the coal company the Manilius Chapman interest, and refused to cancel the deed from the Hall heirs to Johnson, finding the charge of fraud not sustained, and that none of them were entitled to have partition, except Mrs. Torbett, and gave her partition to have assigned to her one-tenth. The trustees holding title for the coal company appeal. So do the Hall heirs.

The first question is one of jurisdiction in equity. It is said there is no jurisdiction on the basis of partition, and this because the Chapman and Hall heirs have been ousted, and that the trustees of the coal company are in possession holding and claiming by title and claim adversely to the plaintiffs, and that equity has no jurisdiction in partition when the parties hold by adverse title, and that the plaintiffs must sustain their right at law. Under the old common-law writ of partition, and in suits of equity purely for partition, prior to the statute found in Code 1891, c. 79, s. 1, the court would not pass on conflicting titles; and, where the rights of the parties were involved in adversary claims, would grant no partition until the title was settled by the'proper action at law. Therefore, when a joint tenant, tenant in common, or parcener did such acts as constituted an actual ouster of another, that other could not maintain a writ of partition or chancery suit for partition, but must, by writ of right, establish right to an undivided interest. Where one conveyed the whole tract to a stranger •and under his conveyance the stranger took possession, that was an actual ouster of the other co-tenants, and they could not have partition until they recovered at law admission to their undivided interests, and then could have partition. But that statute has wrought some change. This inability to give effective relief in cases of partition because of the presence of- a controversy or question as to the title detracted from the efficiency of the remedy in equity in matters of partition, and this act was meant to change the rule theretofore prevailing by enabling the court to try all the questions of title incidental to the partition of land. It was to give power to do just what the court had not till then been able to do, — pass on the title as between the parties interested under the common title. That was the evil to be remedied. Why give the act a circumscribed construction, falling short of removing the impediment which had been so long hampering courts of equity in giving full relief in matters so essential, and so often arising? The able lawyers who framed the Code of 1849 in their report to the legislature referred to the old rule under such cases as Stuart v. Coalter, 4 Rand. 74, and said the rule should not be continued here, and said, “We propose, therefore, by this section to abolish the .restriction.” Then, in Currin v. Spraull, 10 Grat. 145, this restriction under the former rule was especially referred to, and the court held that while, prior to the act, the court could not try title, yet under it the court had authority “to try the question of title.” ' In Hudson v. Putney, 14 W. Va. 561, it is again held as working this change, and as enabling the court to decide questions of title. In Moore v. Harper, 27 W. Va. 362, it is held that under this statute, in a suit for partition, a court of equity may take cognizance of all questions of law affecting the legal title that may arise in the proceeding, such as removing a cloud from title, or passing upon an adverse claim to the land. This is broad enough in words to allow a stranger’s title to be tried, but it does not mean that; but it surely does mean that an adverse claim to the same title may be passed upon. In the late case of Pillow v. Improvement Co., 92 Va. 144, (23 S. E. 32), it is held that under this statute, “if the defendant claims under one who was joint owner with the complainant, or those under whom he claims, the suit may be maintained, and all questions of law arising in the case may be settled by the court.” Now, do not the defendants in this suit claim under Manilius Chapman, who was a joint owner with the plaintiffs? If, therefore, one co-tenant oust his brother, equity has jurisdiction to entertain that brother’s suit for partition until that ouster has continued to bar the right. If he have right of entry, he may ask partition on its strength.

I also think that if one co-owner, whether in actual possession or not, convey the whole tract to a stranger, who takes actual possession, and thus disseises the others, equity, notwithstanding such ouster or disseisin, has jurisdiction of a suit for partition by the others, until their right is barred by limitation, and the court may.pass on all questions necessary to settle the titles or rights of the parties incidental to the consummation of partition. Before the statute it was otherwise. If this is not so, what good does the statute do? What its effect? The able and lamented Judge Holt, in an opinion prepared for this case, speaking of a deed by one co-tenant conveying more than his share, in answer to the contention that it created an adverse claim ousting equity of its jurisdiction, said: “Has any one ever heard of a court of equity coming to a dead halt in proceeding to set aside a deed obtained by breach of trust in fraud and crime towards plaintiff, and made to a farticefis criminis, as soon as it is ascertained that such conveyance had resulted in plaintiff’s disseisin; or that plaintiff is therefore no longep co-tenant, because disseised, and therefore not within the letter or spirit of the act? Cannot a court of equity set aside the deed, and restore his seisin, and remit him to his rightful title?” If this be not so, then a co-tenant plainly so to-day, and subject in a court of equity to partition, may assume in'the morning to convey the whole, and, presto, his brother is no longer a co-tenant, cannot have partition in equity, but must sue his brother’s vendee at law, because he holds an adverse title. Especially should we so construe our statute when like statutes are so construed elsewhere, and the old limits are transgressed of late even without statute. In Freem. Co-Ten. § 450, it is said “the limitations in partition proceeding's are constantly weakening, and the tendency to do full and complete justice in one action is becoming- irresistible, and that, wherever the question has recently arisen as a new question, the answer to which the courts were free to give without consulting decisions made at an early day when common-law rules were more potent than at present, it has been resolved in favor of taking jurisdiction whenever the complainant shows himself seised of the requisite title, whether the lands are held adversely to him or not.” If he has right of entry, — that is, right to possession, — that is enough. The act of his brother in ousting him himself, or by conveying to another, does not control his remedy. See Howey v. Goings, 54 Am. Dec. 427; Weston v. Stoddard, (N. Y. App.) 33 N. E. 62. But we have a statute to warrant us in thus extending the jurisdiction; and why shall I say more to vindicate this application or construction of it when cases commencing forty years since so construe it, as shown above? It is said the statute gives partition only between co-tenants, and an adverse holder is not a co-tenant. The statute changes-that. Under it the'adverse claimant is a tenant in common with the others, being a privy in estate with one who has a common title and seisin in law or fact with the plaintiff. To hold otherwise, we will have to reverse many cases in which this Court has, in partition, held that adverse claims may be passed on. Deem v. Phillips, 5 W. Va. 168; Arnold v. Arnold, 11 W. Va. 449; Boggess v. Meredith, 16 W. Va. 1, and cases above. I think this construction of our statute is fully sustained by point 5 of the syllabus in Davis v. Settle, 43 W. Va. 17, (26 S. E. 557). My construction of the statute does not allow stranger titles to be adjudged in partition, nor even all adverse claims, though originating in a common title, but only adverse claims derived from one who was a co-owner with the plaintiff. I gave my views as to this in a dissenting opinion in Davis v. Settle, 43 W. Va. 17, (26 S. E. 557); Carberry v. Railroad Co., 44 W. Va. 260, (28 S. E. 694), also discusses this subject, but in that an adverse title arose from an actual sale for forfeiture.

But it is said this construction makes the statute void, because contrary to the provision of the Constitution that the right of trial by jury in suits at commonlaw, if required by either party, shall be preserved. This does not apply to suits in equity on matters of equitable jurisdiction. The clause was intended to preserve a jury trial, if asked, in all cases; that is, in all matters of such nature as would support a demand for a jury by the law in force at the time of the adoption of the constitution. It was not designed to extend the right to new matters of a nature not then supporting a demand for a jury. Cooley, Const. Lim. 504. The legislature cannot enact that a matter giving the right to have a jury under the law at the adoption of the constitution may be tried without a jury, or give jurisdiction of it to a court of equity or other courts not using- a jury, unless there be some equitable ground of relief. Haines' Appeal, 73 Pa. St. 169 (opinion); Barlow v. Daniels, 25 W. Va. 515. When there is a ground of equity jurisdiction, as fraud or other grounds, then chancery can try without jury any matter, though it be of legal nature, and such as would call for it if it stood alone, and not incidental to relief in a suit properly in equity. Trial of adverse claims to freehold calls for a jury trial, and therefore it is plain that no legislation can, after the adoption of a constitution giving such jury right, vest in chancery, for trial without jury, the decision of adverse claim to the land, if, at its adoption, the law gave that right; but if at that date it does not call for a jury trial, it is different. As the guaranty does not extend the jury to subjects not calling for it at the date of the constitution’s adoption, it follows that if, at that date, a court of equity, under the then existing law, exercised jurisdiction upon a given matter, its continued exercise of jurisdiction does not infringe upon the right under the constitution. Cooley, Const. Lim. 504; Sedg. St. Const. 486, 488; full note to Steamboat Co. v. Roberts, 48 Am. Dec. 186, 188. When the Virginia constitution of 1851 and our two constitutions of 1863 and -1872 were adopted, the statute in question was a part of the Code, and under the principles just stated it would seem plain that this power to try adverse claims to land in a partition suit would be consistent with the constitution. It is, however, said that this cannot be so, and that the position to that effect stated by me in my dissent in Davis v. Settle, supra, and the holding- to the same effect in Pillow v. Improvement Co., 92 Va. 144, (23 S. E. 32), are untenable, for the reason that when that statute was passed it was contrary to the constitution, and void, and no law when those new constitutions were adopted. This seems to be plausible at first view, but, when we reflect, it cannot be so regarded. My position in answer to that theory is that this law was on the statute book when all those constitutions were adopted, and had not been adj udged unconstitutional, and had been recognized as valid law in Currin v. Spraull, 10 Grat. 145; Cosgray v. Core, 2 W. Va. 353, and Hudson v. Putney, 14 W. Va. 561, — in cases arising prior to our present Constitution,and its authors must be taken to have made it with their minds upon that statute as a part of our then existing law. A statute in Illinois, providing that in chancery suits for partition the court may investigate and determine all questions of conflicting or controverted titles, and remove clouds, was held not contrary to the jitr'y clause of the constitution, though passed after its adoption, because it was a chancery suit. Flaherty v. McCormick, 113 Ill. 538. So I think Cecil and other Chapman heirs can, under the head of partition, maintain their suit.

The Hall heirs, how as to them? Clearly, there is jurisdiction under the head of partition for the Hall heirs, because the defendants are clearly co-tenants with them, if their deed to Johnson be set aside as they prayed. Mrs. Ha11 conveyed one-fourth to Johnson. He was then co-tenant. Later the Hall heirs made a deed to him purporting to convey him all their interests on its face, saying they were heirs of David Hall. Remove that deed, and he and his vendees would be co-tenants, owning that half in common with other heirs. That deed makes Mrs.Torbett and her husband parties, declares she has a fifth, and, it being void as to her for want of her husband joining in it, she is a co-tenant, so declared on the face of the deed under which Johnson and the trustees claim, and they are bound under the familiar rule to notice all rights declared by their title papers; and when the trustees took actual possession they took it as co-tenants with her in the eye of the law. They did not take under a deed for the whole; thus they are co-tenants with her in the same common title. Could she not sue them for partition? She had a lawful fifth, the trustees a lawful four-fifth interest. If it had been her separate estate, their entry might be an ouster. This lana vested in her, and she was married before the separate estate provision in chapter 66, Code 1868. She and her husband had joint seisin. It was not separate estate. By an ouster with adverse possession ten years their joint right of entry would be barred. Caperton v. Gregory, 11 Grat. 505. And she could not recover during coyeture, but could after it ceased, she or her heirs, under the saving clause in the statute of limitations. Merritt v. Hughes, 36 W. Va. 356, (15 S. E. 56). But we must remember that her husband made papers conferring on Johnson such estate as he had, — right to posession at least during coverture; and they had seisin in fact, during his life, and when the coal company took possession in 1887, they did not oust Mrs. Torbett, but entered as owners of the life estate, and under it with knowledge imparted by the deed from the heirs that she was entitled to the fee in remainder, and we must attribute that entry to the life estate, and the coal company’s possession as her possession, not adverse, as the possession of a life tenant is not adverse to the remainder-man. Id. I do not see how we can say there is any ouster as to Mrs. Torbett. Surely entry and actual possession under said instruments would not per se be an ouster. If it could at all take place during the life of the husband, it would have to be by actual notice of adverse hostile claim brought home to her (Cooey v. Porter, 22 W. Va. 120); but, as they claim under the sole deed of Torbett, how could they do this until his death? If there was an ouster as to her, there is no color to say she cannot sue for partition, so far as the question of equity jurisdiction is concerned. I say, however, that, even if there were no ouster as to her, her right of entry would give her standing in equity for partition. In addition to the ground of partition for equity jurisdiction, both the Hall and Chapman heirs have jurisdiction under the hea.d of fraud, as the Hall heirs charged that the deed from them to Johnson was procured by fraud, and. asked its cancellation; and there being jurisdiction on that ground, equity will grant partition as incident, even before the statute above discussed though there had been disseisin and hostile possession. Freem. Co-Ten. § 449; Nichols v. Nichols, 67 Am. Dec. 707. It cannot be said that there is no jurisdiction in equity on the score of fraud, simply because, in the end, when the defense is heard, and on the evidence, the court decides that fraud is not proven. It is the bill or declaration that tests this, not the defense. In U. S. v. Arredondo, 6 Pet. 709, the court said that, if the bill states such a case as that on demurrer the court would give a decree, it is an undoubted case of jurisdiction. Wells, Jur. 2. The facts alleged give jurisdiction -for fraud, and we cannot deny this as justifying jurisdiction, unless those facts are stated colorably or fraudulently to get jurisdiction as shown by other parts of the bill. Thompson v. Iron Co., 41 W. Va. 574, (23 S. E. 795,) citing Laidley v. Laidley, 25 W. Va. 525, and other authorities. The bill does not show this. The Chapman heirs likely have jurisdiction to cancel the deed from Manilius Chapman to Johnson for the entirety. I will add as to both sets of heirs-that they have unquestionable jurisdiction in equity to cancel the tax deed, as equity will cancel such a deed, regardless of the fact that defendant is in possession under it, though relief could be had at law, this being an exception to the rule that no jurisdiction is in equity to remove cloud where defendant is in possession. Simpson v. Edmiston, 23 W. Va. 675; Clayton v. Barr, 34 W. Va. 290, (12 S. E. 704); Christian v. Vance, 41 W. Va. 754, (24 S. E. 596). Equity, having jurisdiction for one purpose, will go on to give relief. Bettman v. Harness 42 W. Va. 433, (26 S. E. 271); Freem. Co-Ten. § 449. Can we question that where one co-tenant has taken a void tax deed, another may cancel in it equity, and, having done so have partition from the one so mistreating him? The deed from Manilius Chapman to Johnson for the whole moiety left Johnson only a co-tenant. So Johnson’s vendees. The other heirs had a right to sue in equity to annul this deed. That is an additional ground of jurisdiction. And as one of the appellants’ counsel concedes, and as is true, all have jurisdiction in equity to have the redemption in McDowell circuit court declared not a purchase, but a redemption, and to declare the deed from the commissioner of school lands to the company as vesting- title for common benefit. Where equity has jurisdiction for one purpose, it gives complete relief. So I think jurisdiction in equity is clear.

Now, as to the merits of this controversy, we start with the undeniable proposition that when Henry Chapman and David Hall died, under their joint patent irom the state of Virginia this land descended to their heirs, one half to the Chapman heirs, and the other half to the Hall heirs. Have these heirs lost their rights? If they have not, they are entitled to partition. How have they lost their rights? Let us take the Chapman heirs separately. It is said that, they transferred their rights to Manilius Chapman, one of the heirs. It is said that he, as administrator of his father, overpaid assets in his hands and thereby became a creditor of the estate, and that his bi'others and sisters agreed that he should take this land in discharge of that indebtedness. This proposition is proven by no one but one Peck, who stated that Manilius Chapman consulted him about his indebtedness against the estate, and about enforcing it against this land, and he said that Manilius “claimed that there was some kind of an agreement or understanding between the rest of the heirs and himself that he (Manilius Chapman) was to have his father’s interests in the land in payment of what he claimed would be the indebtedness of the estate to him.” Now, but for'the fact that this evidence was introduced by the plaintiff, it would not be admissible, being a self-serving statement of Manilius Chapman to sustain his claim. That only makes it competent. Its weig-ht is another matter. At best it is weak and inconclusive evidence: And look at its character. It is so indefinite and vague. If'we say that it with sufficient certainty related to this land, and that the terms of the contract are fixed, yet who are the parties to it? All or only part of these heirs? When and-where did this one make such agreement? What were the exact condition of that agreement? We do not know. Ought there not be proven or shown a definite contract by each of these heirs, such as would bind him in law? Instead of that, we have the indefinite language that there was “some kind of an agreement or understanding.” A court of equity would not execute that. And then some were married women, incapable of making- suck an oral contract in the face of the statute requiring-a writing- acknowledged in conjunction with the husband. Manilius admitted to Peck that he had no writing. And then there never was any possession taken under such oral coutract. We cannot ascribe to this contract possession taken by the coal company years later, when we know that then Chapman had conveyed to Johnson, and Hall heirs had conveyed, and the company took possession under those deeds, not under or in execution of this alleged contract. Possession under it alone is necessary to make it good. Gallagher v. Gallagher, 31 W. Va. 9, (5 S. E. 297). It was utterly incapable of enforcement in a court of equity, and therefore it cannot operate as an estoppel against the plaintiffs; and some of the heirs were dead, most likely at the time. Taking the contract at its best, it is too weak to warrant us in saying-that by it, if any contract ever existed, these Chapman heirs deprived themselves of their rights. But Manilius Chapman’s conduct repels the idea that he had such a contract on the facts; in short, that he proceeded to enforce his indebtedness against the interest of one of his brothers in this very land; and in a statement of his accounts as such administrator he gave no credit at all, or account of this land as a payment to him of the estate’s indebtedness to him, and he offset against a debt due from him upon a bond to one of his sisters her share of the estate’s indebtedness to him, and thus collected it. For these and other reasons, which could be elaborated, but are mere matters of fact, not proper to be here detailed, we are compelled to say that this claim of Manilius Chapman to the interests of the other heirs is utterly untenable. - He never took any steps whatever to enforce this right; he never claimed its execution during his lifetime.

It is said that these heirs lost the title by forfeiture for nonentry for taxes. If so, it was redeemed from that forfeiture. In March, 1882, in the circuit court of Mercer county, in a proceeding by the commissioner of school lands for the sale of this land, Manilius Chapman and the heirs of Hall filed their petition, setting forth the joint grant of it to Henley Chapman.and David Hall as the foundation of their title to the land, and that the land had been for years charged in the name of Mary E. Hall, a child of David Hall, and that Manilius Chapman had, by arrangement with the heirs of Henley Chapman, become owner of half of the land, and that all taxes had' been paid upon it except for 1878; and the petitioners claimed the right of redemption, and the court decreed that the petitioners had the right to redeem, and that they had paid all the taxes thereon, and chargeable thereon, for all years except the year 1878, and ascei'tained the amount of taxes necessary to be paid to redeem the land, which was paid into court, and the land was 'xonerated in the following words: “And it is ordered tha said tract of land be, and is hereby, released and exon rated from all former taxes and forfeitures.” Now, v ier Acts 1872-73, p. 455, this operated to relieve the land vom -forfeiture, because that act declares “that such ordei ,,ha¡¡ operate as a release of all former taxes on saic. d, no sale thereof shall be made.” Hall v. Swann, 39 W. Va. 353, (19 S. E. 509); Taylor v. Burdett, 11 Leigh, 334. However, I do not think the tract was forfeited, since, by the quantity given in the patent, the remnant of the tract was less than one thousand acres, and could not be forfeited for omission for reasons stated in Industrial Co. v. Schultz, 43 W. Va. 470, (27 S. E. 255). But it is said that the circuit court of Mercer had no jurisdiction, because the land lay in McDowell county, and none of it in Mercer. Now, plainly, the burden is on those who would nullify this act of the court to show the fact denving the jurisdiction, but it is not shown. The patent covering a larger amount than the land now in controversy, it being a part of the larger amount, recited the land as tying in Tazewell and Mercer counties, the greater part of it in Mercer. Oral evidence in this case showed that this particular remnant of it was in Mercer. The State had assessed it in Mercer, and in 1879 purchased it at a tax sale for taxes of 1878, and its auditor reported it as school land in Mercer. The school commissioner of that county filed his petition representing that it lay in Mercer. Manilius Chapman, under whom adverse claim to the other heirs is made, represented in his petition for redemption that it lay in Mercer. The court must be taken to have ascertained to its satisfaction that, fact as a jurisdictional fact, and thus determined it had jurisdiction. The suit, it is true, was not technically a suit between the State and the owners; but we can certainly say this much: that the State chose that court as one of proper jurisdiction, and that it obtained there the relief to which it was entitled, and received the taxes adjudged to be due to it, just the same as if it had been in McDowell county; and it is not here questioning the validity of that proceeding because of want of jurisdiction. If it were so doing, it would be estopped from thus injuring those who, as innocent parties, accepted its choice of a court and recognized its jurisdiction, and paid the State its demands pursuant to the order of its own chosen-court. But, as I said, the. State is not. questioning it. Can others deny the fact of redemption when the State is not denying-it, and could not deny it? It is only those who claim under Manilius Chapman who are denying it, and Manilius Chapman himself treated that court as having jurisdiction by filing his petition for redemption in it. Martin v. Barbour, 140 U. S. 634, (11 Sup. Ct. 944); opinion in Miller v. Lohr, 12 Grat. 456; Witham v. Sayre, 9 W. Va. 678; Bradley v. Ewarts, 18 W. Va. 609. No matter that this was not a suit, but an administrative proceeding, yet I say that the State is bound by it as an estoppel, and so all others are denied the power to nullify the proceeding by the allegation of nonjuris-diction. Notwithstanding it is not a suit inter paries, yet as to the parties really before it, especially the State, it must be taken that its jurisdiction is not open to collateral attack by third parties, but is conclusive as to jurisdiction.

This feature of the case introduces an interesting and important question, on which it may be proper to say more on authority. Is the State bound by estoppel? In a general sense, perhaps not; but frequently it is. Here the State chose the circuit court of Mercer as the forum for her proceeding. Now, strangers, not the State, in a collateral proceeding come in and say the whole transaction in that court is void because the court had no jurisdiction, when she could not herself deny it. In Clark v. Barnard, 108 U. S. 436, (2 Sup. Ct. 878,) the point was raised that the state of Rhode Island was the real party, and could not be sued. The state had appeared, and filed a petition claiming- the fund, and the court held that the voluntary appearance of the state conferred jurisdiction to adjudicate its rig-bts, and that it became an actor as well as a defendant by intervening-, and this gave jurisdiction. Here the state selected this court as plaintiff. The United States government is bound by judicial proceedings instituted by it. The Siren, 7 Wall. 152; Carr v. U. S., 98 U. S. 423. The state cannot say her proceeding disposing of state property was without jurisdiction. Cunningham v. Shanklin, 60 Cal. 118; Bigelow, Estop. 341. Herm. Estop. 219 says: “A state is bound by her judicial pleadings and admissions, the same as private persons, and is entitled to no greater right or immunity as a litigant than they are. The doctrine of estoppel applies to the state just as it does to individuals. Nor is this rule varied by the fact that there are others interested in the subject-matter of the proceedings conducted by the state. * * * So where the state, .by its proper officers, enters into an agreed case, if it is not bound by the agreement, it is, in any event, concluded by a judgment and decision to which it has not excepted.” In the same book (page 1264) we read: “In the absence of fraud or collusion, acts of public officers in behalf of the state, within the limits of their authority, and in performance of duties, in dealing with third persons, are the acts of the state, and cannot be repudiated by it.” Throop. Pub. Off. p. 551. See Com. v. Johnson, 33 Grat. 294. It majr be of public use to insert the following quotation from the opinion in the case of People v. Stephens, 71 N. Y. 527: “It may be suggested that the doctrine of of respondeat superior does not apply to the state, and it may be conceded that the state is not responsible for the neg-ligence or misfeasance of its servants in cases where, within the ordinary rules of law, a master would be responsible for the acts of a servant. But when power is necessarily devolved upon a public officer to perform acts' for the state, and third persons deal with- such officer relying- upon his authority and the validar of his acts, there is no reason or principle why the doctrine, lQui Jacit per alium facitper seh should not apply to the extent of binding the state for contracts and payments made by the officer in the discharge of the duties of his office, and within the limits of his authority, and to the same extent that a principal would be bound by the acts of an agent under the same circumstances. It would not be permissible for a comptroller or auditor of the canal department, or other auditing- officer, to review the actions of his predecessor in the auditing and payment of claims, because he might think that a settlement as advantageous as might or ought to have been made had not in fact been made. Parties dealing with state officers may regard their action as a finality, and it would tend to serious consequences if every completed transaction of public officers might be submitted to a jury of twelve men in an action at law brought at anytime within six years after its consummation. There would be no safety in dealing with the state if such was the law, and the public would have to pay dearly in all contracts and settlements with individuals for this privilege of reviewing the action of their servants and agents. Story, Ag. § 307a; People v. Jansen, 7 Johns. 332; Hayden v. Auburn State Prison, 1 Sandf. Ch, 195; Supervisors v. Briggs, 2 Denio, 26; Martin v. Supervisors, 29 N. Y. 645; Chase v. Saratoga Co., 33 Barb. 603; Supervisors v. Birdsall, 4 Wend. 453; People v. Greene, 56 N. Y. 466; People v. Thayer, 63 N. Y. 348; U S. v. Kirkpatrick, 9 Wheat. 720. To the extent that some of the cases have held that the government is liable for mere laches or neglect of a a public officer, they may not be authority, but there seems to be no dissent from the proposition that by acts of public officers within the scope of their powers the public is bound.” In addition to all this, the provision in section 19, chapter 105, Code 1891 (Acts 1891, c. 94), that when in any proceeding theretofore for the sale of forfeited land the former owner has been permitted to redeem by payment of the amount fixed by the court, “such payment shall be valid and binding on the state, regardless of the irregularity of the pi-oceeding or of any want of jurisdiction in the court to render such decree; and whatever right, title, or interest the state may have had in such lands shall, by virtue of such decree and payment, be transferred to and revested in such former owner.” Without this act, the proceeding, on common-law principles, was efficacious to remove only forfeiture; but here is a legislative validation of it, and the act is itself a legislative grant to the former owner. The circuit court of Mercer is treated in argument as if, in this matter, it were an inferior court, bound to prove the fact giving it jurisdiction. This is a mistake, I think. True, it is, that under the then existing law the proceeding was administrative merely, not a suit between parties. No person had a right to become a party, and it was not void for want of them, under McClure v. Maitland, 24 W. Va. 561. But does that make it an inferior court, bound to establish by proof, dehors its record, that the land in fact lay in Mercer, whenever its action is involved in a collateral pi'oceeding? I say not. Its procedure in the matter was judicial; its steps are to be so regarded. It is none the less a court of general jurisdiction as to its procedure because the g-eneral nature of its function in the case was administrative because of the matter on which it acted. Notwithstanding the character of the subject-matter before it, the court had to ascertain whether the fact giving jurisdiction existed; and, being a court of general jurisdiction, if it is not stated on its record that such fact exists, it would be presumed that it had been established to its satisfaction. But I find the order does state it, and the principle then comes in that, “when the record of an inferior court (even if it were such) does show affirmatively the jurisdictional fact, it is conclusive.” 1 Black, Judgm. 287; 12 Am. & Eng. Enc. Law, 274; Bigelow, Estop. 66; Shank v. Town of Ravenswood, 43 W. Va 242, (27 S. E. 223). Where the jurisdiction of even an inferior court is dependent on a fact which the court is required to ascertain and settle by its decision, such decision " is held conclusive; and, furthermore, it has been claimed that this principle is not confined to determinations of a judicial character. Evansville, I. & C. Straight-Line R. Co. v. City of Evansville, 15 Ind. 421, 423. Courts do not favor a forfeiture, and will require full proof of facts to sustain it. Townshend v. Shaffer, 30 W. Va. 176, (3 S. E. 586).

The point is made by counsel that only the taxes of 1878 were paid in such redemption, and the taxes of prior years were not in fact paid; but the petition of the school commissioner alleged that such taxes were paid. So did the petition of Manilius Chapman and the Hall heirs for redemption. Could Manilius Chapman or his subsequent privies in estate deny the fact? The court found such to be the fact, and so decreed. That decree operated as a redemption, and left the title in statu quo, vested in the heirs of Chapman and Hall, as it had been before the forfeiture. It is said this redemption did' not inure to the benefit of all the Chapman heirs. For another reason, it cannot be that the redemption did not g-o to the benefit of all in law entitled, and that is that Johnson received a conveyance from Mrs. Hall of an interest in the land to pay back taxes on the whole tract, not an interest in it, and his act was a redemption of the whole tract. He cannot say it was only for the Manilius Chapman or other limited interest, nor can his vendees. The petition for redemption was in the names of Manilius Chapman and the Hall heirs; but if he had not, in fact, the exclusive right to the shares of his brothers, children of Chapman, but only his own share, in the eye of the law is it not plain that this act of salvation of the title would go for the common use of all? His petition averred that his brothers had once title, and only averred that he had acquired their right from them. Suppose he had not acquired it. His redemption would be for all. This redemption was under claim of the Chapman and Hall joint patent, and, once made, operated for all then entitled, as between themselves, to the land.

This case is argued as if it were clear that no part of the land lies in Mercer. The patent said it was there. If so, some of it remains in Mercer. Other circumstances and proof show it is there, and- the defendants have shown nothing adequate to show that it is not. But suppose we treat this redemption as void for want of jurisdiction. The title would be, it is true, vested in the State by forfeiture; but, if these parties are‘ co-tenants of the land, as I have sought to show above, that does not deny them right to partition of their claim to the land, be it good or bad, because I apprehend that, if parties are co-tenants, or common owners of land under a colorable title, though not the best title, yet one of them, when sued for partition, cannot come in and say that there is better outstanding title; for the court, while it will investigate the rights of the parties to come into the partition, yet it will not inquire whether that title under which partition is asked is valid or not, as contrasted with some other title. Especially is this so when they yet had rigiit of redemption from the State, — a light to reinvest themselves with title vested in the State. Surely, forfeiture of joint estate does not bar its partition when this right of redemption exists. When the title of the State is subject to defeasance by redemption, cannot brothers who have made a deed of trust have partition? The State by forfeiture acquires a fee defeasible on condition subsequent, — that is, redemption, — and before redemption there may be partition between the former owners.

In the year 18S5, in a proceeding in the circuit court of McDowell county for the sale of a large quantity of what was claimed to be waste and unappropriated land, such proceedings were had that a certain quantity of land claimed and owned by persons whose titles were protected by the constitution and laws from sale was declared exempt from sale, as reported by the commissioner to whom the sale had been referred, and the court declared that there were within the boundary certain tracts belonging to persons whose titles were protected, among them the land in controversy. Nowt, this was a proceeding under the act of 1882 relating-to the sale of lands for the benefit of the school fund, and has been decided by this Court to be a chancery suit. Hays v. Camden's Heirs, 38 W. Va. 109, (18 S. E. 461); Wiant v. Hays, 38 W. Va. 681, (18 S. E. 807). This was a valid declaration against the State that this land was not then forfeited, but was protected from sale under the Constitution and laws of this State. It is res adjudicata against the State upon the question of its non-forfeiture. The fact of nonforfeiture, as against the State, was settled, Shall others.say that it was forfeited in such a proceeding as this? So we must say that the taint of forfeiture once existing has been thoroughly removed and purged away.

In May, 1885, in the circuit court of McDowell county, the commissioner of school lands filed a petition and report stating and showing the forfeiture and vesting in the State for. nonentry on the tax books of McDowell county of the land in controversy in this case, therein represented as then owned by the Flat Top Coal Company; and that company filed its petition praying to be permitted to redeem and purchase said land, and exhibiting its title to it, and it was adjudged that the Flat Top Coal Company had title to the land superior to any other claimant, and entitled to redeem and purchase the same, and that company paid twenty-two dollars and eighty-five cents in full of all taxes due upon said land. This proceeding- was based upon the theory that the land lay in McDowell county, and had never been entered therein for taxes, and was, therefore, forfeited; and the court, by its order, declared the land- released from all forfeiture and former taxes, and that the commissioner of school lands should make to the said company a deed releasing all' the State’s right, title, and interest therein on account of said forfeiture. None-of the Halls or Chapmans were parties to this proceeding, and had no notice thereof. What is the effect of this proceeding? Did it devest the Hall and Chapman heirs of their right? By no means. .And why? Because they were not parties to that proceeding, and had no notice thereof. It could not, therefore, establish the fact of forfeiture against them. Chevallie v. Twiggs, 4 W. Va. 463. This proceeding- was under chapter 95, Acts 1882, which has been decided in Hays v. Camden's Heirs, 38 W. Va. 109, (18 S. E. 461), and Wiant v. Hays, 33 W. Va. 681, (18 S. E. 807), to be a regular chancery suit, and therefore persons .not parties to it could not be bound by it-., . ■ oceeding; but at that time there was no law in force authorizing any sale to the former owner. The Flat Top Coal Company, claiming derivatively through D. E. Johns* ¡ . this land under the Chapman and Hall title, was a party f.. nply entitled to redeem, and’not to purchase. The orde is one purely of redemption, for it declares that they h;n valid title to the land, and were entitled to redeem; and, moreover, chapter 46, Acts 1885, authorizing- a former owner to purchase, had not then gone into force. So this was simply a redemption. The deed of the commissioner under that decree did not pass title to the coal company, but was only a redemption, and left the title as it was before. No matter who makes a redemption under a particular title, whether party to the title or stranger, it is a redemption. When the party from whom the redemption is to be made, state or tax purchaser, receives the money necessary to effect a redemption, the state or tax purchaser is bound, notwithstanding- the party redeeming may be one not authorized to redeem. Cooley, Tax’n, 366, 382, 383; Martin v. Snowden, 18 Grat. 100. The forfeiture in the one case and the purchase under the tax sale in the other is at an end, and the title reverts to those from whom it was forfeited or sold. And, besides, the land was not forfeited, as the redemption in Mercer relieved it of forfeiture, if it had been forfeited; and the McDowell proceeding- could not pass title from the owners, as such a proceeding does not pass title if the land was not forfeited. Twiggs v. Chevallie, 4 W. Va. 463. Much more so now than at the date of that case, for under the act of 1882 the owners must be parties.

After the redemption above spoken of in the circuit court of Mercer, the land was entered for taxes of 1882 in McDowell county on the theory that it had been discoverd to lie in that county, and was returned delinquent, and sold for taxes, and purchased by D. E. Johnson, who assigned his purchase to the Flat Top Coal Company, which took a deed therefor under the tax sale. What is the effect of that deed? For reasons not necessary to specify, that deed was void in law. It can confer no titlé upon the Flat Top Coal Company; canuot pass from the Chapman and Hall heirs their title as yet remaining in them. But there is another reason applicable to that tax deed, and applicable also to the deed just above mentioned from the commissioner of school lands of McDowell to the Flat Top Coal Company under said redemption proceeding in McDowell which forbids either from being operative to destroy the title of the Chapman and Hall heirs. Johnson had a contract prior to this tax sale and redemption proceeding with Manilius Chapman for the conveyance to him of an undivided moiety in this land, and It was conveyed1 to him by Manilius Chapman by deed in August, 1882, and he had an option from the heirs of Hall prior to that for the sale to him of their interest in said tract, and he had a deed for half the Hall moiety from Mary E. Hall prior to such tax purchase, and later the Flat Top Coal Company derived from Johnson as the owner of both moieties in the land in the entire tract. Johnson was thus a co-tenant with all the Chapman heirs except Manilius, andwith Mrs. Torbett, a Hall heir, as to whom the deed from the Chapman heirs was void by reason of her coverture. His purchase was but a redemption. It inured to the benefit of all who were interested in the relation of co-tenants and vendors just stated. The purchase of a tax title or other title by a co-tenant inures to the benefit of all. Gilchrist v. Beswick, 33 W. Va. 168, (10 S. E. 371); Battin v. Woods, 27 W. Va. 58, 70; Bowers v. Dickinson, 30 W. Va. 716 (6 S. E. 335). As Judge Staple said in Forrer v. Forrer's Ex’rs. 29 Grat. 144: “This rule is based on the community of interest in-a common title, creating such a relation of trust and confidence between the parties that would be inequitable to permit one of them to do anything to the prejudice of the others in reference to the common property. This principle equally applies to joint tenants, tenants in common, co-parceners, and all others having' a common title and interest..”' And .as the coal company derived title from Johnson, and stood in his shoes, it occupies no different place from him. It took the tax-title assig'nment then as he had it. That coal company was in law co-tenant with the plaintiffs in these cases as to the rights justly belonging to them, and the same line of remark applies to said coal company as regards its redemption in the circuit court of McDowell county in the year 1885, above spoken of. That redemption inured to the benefit of the Chapman and Hall heirs who had not by their act passed their title. But it is said this doctrine by which such tax purchase and redemption is made to inure to the benefit of ¡the Chapman and Hall heirs cannot properly apply because Johnson and the coal company claimed adversely to them, and that it only applies where the parties claim under the same instrument; that is, to co-parceners or grantees in the same conveyances, but not between one co-parcener and the grantee of another co-parcener. This would say that the grantee of one tenant in common is not a tenant in common or co-tenant with persons who were co-tenant with his grantor. Freem. Co-Ten. § 86 says that tenants in common have but one unity, that of possession. So unity of title is not necessary to constitute persons tenants in common. If there be unity of possession or unity of right of possession, that is sufficient. 4 Kent. Comm. 367, says: “Tenants in common are persons who hold by unity of possession. They may hold by separate and distinct titles, or by title derived at the same time by the same deed or descent.” “Persons owning undivided interests in realty are tenants in common, though their titles were acquired by separate conveyances, and at different times.” Stevens v. Reynolds (Ind. Sup.) 41 N. E. 931. Thus it is the law that persons deriving title from one co-tenant will be regarded as tenants in common with the other co-tenant. Dain v. Cowing, 39 Am. Dec. 585. Therefore I say that when one person, who in law is a cotenant, purchases another title to the land, he purchases for the benefit of all. He may claim that he is sole owner, but if, in fact, the law will hold him to be not sole owner, but a tenant, in common with others, that purchase is for the common benefit of all. The testis does the law adjudge him to be a tenant in common? Otherwise one merely claiming unwar-rantedly to be sole owner, whereas he is in law only a co-owner, could purchase an outstanding title, and wipe out the interest of the others. In this case it is the purchase of one and the same title bj'- those who in law are tenants in common, though they set up claim to the entirety under claims'derived from others. ■

There are cases holding that, to enable one tenant in common to have the sole benefit of an adverse incum-brance or title bought in by him, he and his co-tenants must derive title under one and the same instrument or act of the parties or law. and that where tenants in common derive title under different instruments, one may buy in, and hold to his exclusive benefit such adverse claim or incumbrance. This is on the theory that when under the same instrument they are as joint tenants, and a mutual trust and confidence exists; but under different instruments of acquisition this cannot be said. 1 Lomax, Dig. 262; Roberts v. Thorn, 25 Tex. 736; Rippetoe v. Dwyer, 49 Tex. 505. In note to Keech v. Sandford, 1 White & T. Lead. Cas. Eq. 74, it is said: “But tenants in common probably are subject to this particular obligation only where their interest accrues under the same instrument, or act of the parties or of "the law, or where they have entered into some engag-ement or understanding with one another; for persons acquiring unconnected interests in the same subject by distinct purchases, though it may be under the same title, are probably not bound to greater protection of one another’s interests than would be required between strangers.” See full note, Venable v. Beauchamp. 28 Am. Dec. 83, criticising this position, saying the only authority cited in White & Tudor’s Leading Cases for it is Matthews v. Bliss, 22 Pick, 48, and that it supports no such proposition; and, in my opinion, it does not. The case of Elston v. Piggott, 94 Ind. 14, supports it. Brittin v. Handy, 73 Am. Dec. 497, leans towards it. King v. Rowan 10 Heisk, 675, so holds. Wright v. Sperry, 21 Wis. 331, and Sands v. Davis, 40 Mich. 14, favor it. As an original proposition, I would consider it correct. I cannot see why tenants in common, deriving in separate ways, or where one has ousted another and brought home to him notice of adverse claim, or made actual entry under a deed claiming the whole, and thus become the enemy of the co-tenant, and negatived all relation of trust and confidence, may not buy in an outstanding lien or title and take its benefit. The strength of this position will likely ultimately enforce it. But the general rule that one tenant in common, joint tenant or co-parcener cannot do so has been so long stated in a general way, that I cannot say that this exception is tenable. In Rothwell v. Dewees, 2 Black, 613, the rule is stated generally, without such exception, and it is laid down that it is because of their community of interest in the same subject, creating a relation of trust and confidence, that tenants in common cannot purchase and take exclusively to themselves adverse title. In Bracken v. Cooper, 80 Ill. 221, this exception is denied, and it is said the rule is based on community of interest, not on the accidental circumstance that they derive title uuderthe same instrument. Stevens v. Reynolds (Ind. Sup.) 41 N. E. 931, is decisive on the point. “Persons owning undivided interests in real property are tenants in common, though their titles were acquired by separate conveyances and at different times.” This matter has no pertinency to the re-demptions in the circuit court of Mercer and McDowell, as they were merely redemptions, not purchases, and it is only important as to the tax purchase; but under principles above stated it inured to the common benefit of the co-tenants who still had interests. Besides, that tax deed was void. Johnson, at the date of the sale, had deeds purporting- to convey the whole, but no actual possession was taken under them till later. If actual ouster was necessary to enable him to acquire adverse title, it did not exist. The mere taking a deed for the. whole from co-tenants or others, not following by entry, is no ouster. Freem. Co-Ten. § 326; Buchanan v. King's Heirs 32 Grat. 414, syl. 8. In this connection it is pertinent to say that a tenant in common, to get the benefit of the purchase by another of an adverse claim, must offer, in a reasonable time to pay his share of the outlay. He cannot let one spend money, and never repay him. But to effect him with delay it must appear, not only that he knew of the purchase, but also that he knew'of adverse claim under it. Buchanan v. King's Heirs, 22 Grat. 414. These plaintiffs lived in a distant state. There is no evidence they knew of this tax purchase; no possession or claim under it longer than two years before suit. Besides all said above, this was not the purchase of a stranger title, but of the common title of all. It was a purchase for taxes, and it was the equal duty of all to pay taxes on the common estate. And so it is peculiarly the case with a tax purchase that it is only a redemption. Battin v. Woods 27 W. Va. 58; Curtis v. Borland, 35 W. Va. 124, (12 S. E. 1113); Williamson v. Russell, 18 W. Va. 613; Freem. Co-Ten. § 158; Venable v. Beauchamp, 28 Am. Dec. 85; Rice, Mod. L. Real Prop. 918. .

These considerations repel all idea that the four other Chapman heirs passed by their act to Manilius Chapman their interest in the land so as to warrant his conveyance of the' entire moiety to Johnson; and they repel all idea that the four Chapman heirs or the Hall heirs are devested of their interest by reason of forfeiture or the sale for taxes. So it is clear to me to conclude as to the four Chapmen heirs other than Manilius that they are entitled to their interests. The conveyance by Manilius was an ouster, but that was in August, 1882, and no possession was taken under it until 1887, and that by the coal company. Treating- it as an actual ouster, unless accompanied by possession, it could not operate as such. It would take ten years of actual possession after the act constituting ouster to mature their right. This suit was brought in 1889. So those four heirs must have partition giving them their interest, as the circuit court held.

The Hall interest: David Hall’s will gave these lands to Mary E. Hall for life, with remainder to his five children. Mary E. Hall-made a deed to Johnson for one-half of the Hall moiety. The bill in this case treats the will as valid. Johnson therefore became entitled to that fourth. All the heirs of Hall, including the married women and their husbands, made an executory contract for the sale of the one-half of the Hall moiety to Johnson. This contract was in the shape of an option, and it was executed by conveyance, on the 18th day of December, 1882, for all said heirs, to Johnson, of one-fourth of the whole tract. There might be question, therefore, whether Johnson had any more than an estate for the life of Mary E. Hall in one-fourth of the tract, but the will of David Hall gave his wife power of disposition. She conveyed one-fourth to Johnson in consideration that he enter the entire tract on the tax books and pay certain back taxes; and the said deed from the heirs recites that Mary E. Hall had conveyed a one-fourth interest to Johnson, and thereby recognized and ratified it as a conveyance of the fee; and under these considerations I think we must say that Johnson, by that deed from Mary E. Hall, acquired a one undivided fourth in fee. Thus these conveyances would give him the entire Hall moiety except the interest of Mrs. Torbett, who did not join in the conveyance, as I shall presently show. The Hall heirs assail these conveyances to Johnson on charges of fraud and misrepresentation, and a vast amount of evidence and multitudinous circumstances bear upon that question, certainly not necessary to be detailed here, as they elucidate no principle of law, and it would be simply a detail of evidence. Under the well-known rule that fraud must be clearly shown to overthrow conveyances, I come to the conclusion that this attack is not sustained, and, moreover, after being advised of most — of certainly some— of the material facts on which they predicate the charge of fraud, if not of all of them, these Hall heirs did not repudiate the said option, although they for a time demurred to executing- it, and did not at last refuse to go further under it, hut, on the contrary, executed a deed carrying it into execution, and thereby waived all objection to it based on the allegation of fraud. By that act they closed the door upon themselves. Hutton v. Dewing, 42 W. Va. 691, (26 S. E. 197). And, moreovér, laches would repel this charge. After a knowledg-e for nearly seven years of the most material facts entering into their pretension of fraud, which called upon them for diligent and energetic steps to annul their contract and deed by 'suit, they bring suit. He who seeks to annul a conveyance for fraud must not sleep. His steps must be prompt and diligent and earnest. Whittaker v. Improvement Co., 34 W. Va. 217, (12 S. E. 507); Hammond v. Hopkins, 143 U. S. 224, (12 Sup. Ct. 418). We are the more inclined to this finding because the defendant, the coal company, has opened coal mines, and expended large amounts of money upon the premises, and had commenced these improvements a good while before this suit was brought, though they had notice of the plaintiff’s claim, and they cannot be placed in statu quo. A further consideration, weig-hty with an appellate court, is that upon a vast amount of evidence the circuit court has reached this conclusion in this matter of charge of fraud, and under well-known principles we would not disturb its finding, unless it was clearly wrong-. But, moreover, if we were able to say that the charge of fraud as against Johnson was sustained, yet the case is ■’weaker yet to charge those purchasing from Johnson by conveyances under which the coal company hold. But’there is one of the Hall heirs to be excepted out of the conveyance to Johnson, — • Mrs. Torbett. She signed the option, but it was not acknowledg-ed by her. She signed and acknowledged the deed to Johnson, but her husband did not join therein, and it is therefore void as to her. It is said, however, that she has passed her right to Johnson-by reason of the fact that her husband executed wh.it is termed in this case a counterpart deed. It is said that, taking both of these instruments together, they make a good deed from husband and wife. After th.e delivery of the deed to Johnson, to cure the defect in it for want of the signature of the husband, another deed of exactly the same import, but of different date, was sent to her husband, to be executed by him and his wife. They both signed it, but only the husband acknowledged it. In that condition it was sent to Johnson. He sent it back to have Mrs. Torbett acknowledge it. She never did, and it was not further delivered. It is said that it is not necessary that the husband and wife join in the very same instrument, but that one may properly execute the one and the other execute the other, and that they both evince actual consent of both husband and wife. There is some plausibility in this argument. They seem both to make one and the same factum or deed, one and the same act, working one and the same result, the conveyance of the land. But it cannot be truly said that in law they do work one and the same result, for the instrument not executed by the wife is utterly null, and it does not work the result to pass her interest, nor does the deed of the husband result to pass her interest. The law intends that the self-same instrument shall be executed by both, a joint act, working a joint and common effect in law. Chapter 149, Acts 1882, says that “when a husband and wife have signed a writing” she shall appear before a certain officer, and acknowledge the same; thus requiring that when she goes before that officer both must have signed that identical instrument which she acknowledges. The certificate makes the officer say that the married woman (naming her), wife of the husband (naming him), “whose names are signed to the writing above,” thus again requiring- that when that paper is presented to the officer both names shall be thereon. It must be a deed as to the husband before the wife can execute it by acknowledgment. The presence of his name is a precedent condition or prerequisite to its execution by her, for so the statute in words provides. She cannot convey without the husband’s assent. It is prudent, in the eye of the law, that she have his advice and concurrence, that he should have already given his consent by his signature. It is not contemplated that she may execute a separate instrument today, and that it shall then be sent to the husband, to be by him thereafter executed, even the same identical instrument. Her act ought to receive his assent by bis signature before she makes it. So says the statute. She can convey not otherwise than as the statute allows, for she derives her sole and only power to convey from the statute. The deed without her acknowledgmentisacipher, and we have seen that acknowledgment cannot be made until he has signed it at least. So Mrs. Torbett must he regarded as yet owning her interest, but it cannot be given to her now. And why? Because her estate in this land vested in her prior to the separate estate act, They were married before that, and he became entitled as a husband to possession during her life, and he is yet living. We cannot say that he ever became entitled to curtesy, because there was not seisin in fact by her, and it requires seisin in fact to give curtesy. Fulton v. Johnson, 24 W. Va. 95. Thus he has an estate and right to possession as long as the coverture continues, and until it ends she is not entitled to possession, and therefore cannot have partition. Merrett v. Hughes, 36 W. Va. 356, (15 S. E. 56). If he had not made that duplicate deed and optional contract, he and she could have demanded partition; but they passed an estate good during the cover-ture of Johnson, and until that estate ends those claiming under Johnson have a right to the possession of her interest. It is true that it is argued in this case that that counterpart deed of the husband never was delivered; but it was, Torbett sent it to Johnson. It was, therefore, a perfect delivery as to him. Johnson never returned the deed, so far as regards any estate of the husband which he could pass to him. He only returned it to have the wife join therein for that limited special purpose, and it is a perfect deed as to Torbett, who consented to pass such estate as he had; and, if this were not so, then there is his option constituting an executory contract, and it, as well as the deed, are sufficient memoranda to constitute basis for the specific execution of them against Torbett. Barrett v. McAllister, 33 W. Va. 738, (11 S. E. 220); Parrill v. McKinley, 9 Grat. 1.

It is said that a certain Pickett grant for a large tract of land, older than the Chapman and Hall grant, covers the land in controversy, and that therefore, better title is outstanding, precluding relief to the plaintiff in this case. This only shows outstanding-title in a third party, likely the State by forfeiture, and likely it enured to the benefit of the title under which partition is claimed; at any rate it could not defeat a partition, since, as stated above, co-tenants have, as between themselves, right to partition of their common estate, though it be not perfectly clear that it is the best title in the world, as compared with some other possible title. How shall we say that the Pickett title is still subsisting and can or will be enforced against this title.

Since writing the above I have reconsidered the Hall will, and other judges think it conferred a fee on Mrs. Hall, and thus the children took from her, not from the father, and as she died since April, 1869, Mrs. Torbett took a separate estate, and her husband can have no estate ex jure mariti, or by curtesy until her death, and passed nothing by his deed. It is a doubtful question with me, as she had power of disposal and control during life, and may have taken a fee under principles adverted to in Wilmoth v. Wilmoth, 34 W. Va. 426, and I shall not insist upon the view above expressed that she had only a life estate and the children a vested remainder at the father’s death, but concede her rig-ht to partition and actual possession under it at once These principles affirm the decree.

I do not think improvements can be charged to the Chapman heirs, because notice was given of their claims, nor to Mrs. Torbett, because her title was disclosed on the face of the title in option and the deed of the Hall heirs to Johnson.