Lacy, J.,
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 [640]*640parties named, above, and of J. L. Radford, in such way as to make all the shares equal, and to. pay all the debts. And the shares of each of the daughters should be conveyed to them and their husbands, remainder to the heirs of the wife, etc., and the share of the said J. L. Radford to be conveyed to him. In execution of this agreement, the northern part of the said Rockford farm was conveyed by the said, widow, and other heirs than Yancey and wife, to the said Yancey and wife, which set forth that “ for divprs good and valuable considerations, to them moving and by them received, and for the further consideration of one dollar to them in hand paid, the said parties of the first part, do grant, relinquish, and release unto the said parties of the second part, and to the heirs of the female party of the second part, all that certain tract or parcel of land, part of the estate known as Rockford, lying in the county of Pulaski and the state of Virginia, on the southwest side of Yew river, containing two hundred and forty-two acres, and bounded as follows, viz; ” without warranty or other covenants added. Similar deeds were made to the other parties. Mrs. Yancey died without having had any children, her husband living. The heirs of Mrs. Yancey brought this suit to partition the Yancey part of Rockford farm. The circuit court, by the decree complained of and appealed from here, decided that William T. Yancey was entitled to one-half of the land in question for life, remainder to the complainants, and that the complainants were entitled to the other half in fee-simple, and directed an account of one-half of the rents and profits since Mrs. Yancey’s death. From this decree the said W. T. Yancey appealed, and on the hearing the appellees assign error, under rule 9 of this court, as against them—that is, the land allotted to Yancey and wife is claimed by the appellant to be bis absolute property under the above-recited deed'; while, on the other hand, the appellees claim that the property in question was the real estate of the wife, descended from her father, and that she having died childless, no child having been born [641]*641of her marriage, the, husband was not entitled to curtesy in her land, and took nothing under the said deed.
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 [642]*642any of the deeds. The transaction -operated a partition of the, Radford lands. No deed at. that time was required (Code Va., sec. 2413, in effect May 1, 1888) to effectuate a voluntary pártition (Bolling v. Teel, 76 Va., 487; Acts 1885-86, p. 524, act approved Marcli 6, 1886). It has been often said that “partition between coparceuers neither amounts to nor requires an actual conveyance. It is less-than a grant. Its operation is not to pass the land by a fresh investiture of the seisin, for coparceners aré supposed to be already in possession of the whole lands. Partition, therefore, makes no degree; it only adjusts the different rights of the parties to the possession. Each does not take her allotment by purchase, but is as much seised of it by descent from the common' ancestor as she was of her undivided share beforé partition.” Alin. Part., 124, 128. This citation from Allnatt on Partition has been often approved. 1 Lomax Dig. (2d ed.), 634; Bolling v. Teel, 76 Va., 493; 2 Min. Inst. (2d ed.), 439—where the same is cited from Lomax Dig., supra.
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-[643]*643half of the said land upon his construction of this deed. But there is no estoppel growing out of "this deed.
Free access — add to your briefcase to read the full text and ask questions with AI
Lacy, J.,
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 [640]*640parties named, above, and of J. L. Radford, in such way as to make all the shares equal, and to. pay all the debts. And the shares of each of the daughters should be conveyed to them and their husbands, remainder to the heirs of the wife, etc., and the share of the said J. L. Radford to be conveyed to him. In execution of this agreement, the northern part of the said Rockford farm was conveyed by the said, widow, and other heirs than Yancey and wife, to the said Yancey and wife, which set forth that “ for divprs good and valuable considerations, to them moving and by them received, and for the further consideration of one dollar to them in hand paid, the said parties of the first part, do grant, relinquish, and release unto the said parties of the second part, and to the heirs of the female party of the second part, all that certain tract or parcel of land, part of the estate known as Rockford, lying in the county of Pulaski and the state of Virginia, on the southwest side of Yew river, containing two hundred and forty-two acres, and bounded as follows, viz; ” without warranty or other covenants added. Similar deeds were made to the other parties. Mrs. Yancey died without having had any children, her husband living. The heirs of Mrs. Yancey brought this suit to partition the Yancey part of Rockford farm. The circuit court, by the decree complained of and appealed from here, decided that William T. Yancey was entitled to one-half of the land in question for life, remainder to the complainants, and that the complainants were entitled to the other half in fee-simple, and directed an account of one-half of the rents and profits since Mrs. Yancey’s death. From this decree the said W. T. Yancey appealed, and on the hearing the appellees assign error, under rule 9 of this court, as against them—that is, the land allotted to Yancey and wife is claimed by the appellant to be bis absolute property under the above-recited deed'; while, on the other hand, the appellees claim that the property in question was the real estate of the wife, descended from her father, and that she having died childless, no child having been born [641]*641of her marriage, the, husband was not entitled to curtesy in her land, and took nothing under the said deed.
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 [642]*642any of the deeds. The transaction -operated a partition of the, Radford lands. No deed at. that time was required (Code Va., sec. 2413, in effect May 1, 1888) to effectuate a voluntary pártition (Bolling v. Teel, 76 Va., 487; Acts 1885-86, p. 524, act approved Marcli 6, 1886). It has been often said that “partition between coparceuers neither amounts to nor requires an actual conveyance. It is less-than a grant. Its operation is not to pass the land by a fresh investiture of the seisin, for coparceners aré supposed to be already in possession of the whole lands. Partition, therefore, makes no degree; it only adjusts the different rights of the parties to the possession. Each does not take her allotment by purchase, but is as much seised of it by descent from the common' ancestor as she was of her undivided share beforé partition.” Alin. Part., 124, 128. This citation from Allnatt on Partition has been often approved. 1 Lomax Dig. (2d ed.), 634; Bolling v. Teel, 76 Va., 493; 2 Min. Inst. (2d ed.), 439—where the same is cited from Lomax Dig., supra.
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-[643]*643half of the said land upon his construction of this deed. But there is no estoppel growing out of "this deed. There was no "wárranty therein, and its whole sgope and object, and its only legal effect, was to set apart and effect a partition of the Rad- . ford lands—■“ adjust the different"rights of the parties to the -possession.” Tt was a grant by the Radford heirs only to this exteut, and can operate no further, either by way of estoppel or otherwise. The appellees do not deny, but concede this, and the deed in no way hinders their, claim. Mr. Yancey could not have claimed this land against- his wife, nor against her heirs except so far as he could have claimed as tenant by the curtesy, if the heirs were the children pf tlie marriage; nor could he have compelled her to convey. She has not conveyed, there were no children born of the marriage, and the 'husband has no interest in these lands since the death of his wife. And the circuit court erred in its decision that he was entitled to one-half of these lands for life, and to that extent the decree will be reversed in the interests of the appellees, at the cost of the appellant, and the case remanded to the circuit court for an account of the rents and profits since the death of Mrs. Yancey, and for further proceedings in order to a final decree in the cause.
Lewis, P., and Hinton, J., dissented.
Decree reversed in favor oe the appellees.