
    *Buchanan & als. v. King’s Heirs.
    June Term, 1872,
    Wytheville.
    I. Dismissal of Suit by Clerk—Waiver by Defendant. —It is the duty of the clerk to dismiss a suit, 'when the process is served, and the hill is not filed in the time prescribed by the statute. But if the bill is filed before an order of dismissal is entered, and the defendant answers without insisting upon the dismissal of the suit, and consents to a hearing of the cause, he thereby waives the objection,
    a. Revival of the Cause against the Heirs at Law.—The record stating that by the consent of parties the cause is revived against the persons therein named, heirs at law of the defendant who had died, and no objection having been made on this ground, in the Circuit court, the appellate court must presume the revival regularly entered with the1 consent of the proper parties.
    3. Proof That One Is Heir at Law Waived.—Plaintiffs sue as heirs at law of K. The defendant answers, and does not question their right to sue in that character, and no question is made or suggested in the court below of their right to sue as such heirs; and throughout the proceedings it is implied by, if not expressly conceded, that they are próperly before the court as such heirs. It is too late to object in the appellate court, to the decree for the want of proof of the fact.
    4. Right to Claim Benefit of Adverse Title Purchased by Co-Tenant—When Waived.—As a general rule a joint-tenant or tenant in common is not to purchase in an outstanding adverse title to the common property, for his own benefit, to the exclusion of his co-tenant. But the co-tenant must,, within a reasonable time, make his election to claim the benefit, and to contribute to the expense incurred in the purchase of such title. If he unreasonably delays until there is a change in the condition of the property, or in the circumstances of the parties, he will be held to have abandoned all benefit arising from the new acquisition.
    5. Same—Same—Knowledge of Purchase and Claim of Co-Tenant Essential.—In such case, before the co-tenant can beheld to have abandoned his claim to the benefit of the purchase of the outstanding title, it should appear not only that he has been apprised of the purchase, but of the claim set up by his co-tenant. He may reasonably presume the acquisition was made in support of the common title, and may act on that presumption.
    *6. Same—Same—Same—Burden of Proof.—In such a case the burden is upon the purchasing tenant to show that his co-tenant had notice of the purchase, and of the exclusive claim asserted by him.
    7. Grantee of Joint Tenant Is Tenant in Common with the Co-Tenant.—c andK are joint-tenants of land. C purchases a large tract which includes the land field jointly, and takes the conveyance to himself: and he sells and conveys part of the large tract including the land held jointly. The grantee in this deed is tenant in common with the co-tenant of his grantor; and his possession is in presumption of law. the possession of all, and is to be deemed in support, and not in derogation of the common title.
    8. Ouster under the Code of i860.—The acts of Gin taking'the conveyance to himself and conveying to his grantee, are not such acts as are eauivalent to an actnal ouster, under the Code of 1860, chap. 135, § 15.
    In September 1852, Wm. King and others, claiming to be heirs of Wm. King the elder, instituted a suit in equity, in the Circuit court of Smyth county, against Andrew K. Buchanan, for partition of a tract of two hundred and seventy acres of land of which the plaintiffs claimed they, as the heirs of Wm. King, were entitled to one undivided moiety. Though the process was served in September 1852, the bill was not filed until November 1854; and in April 1855, Buchanan answered, without having taken any steps to have the suit dismissed for the failure to file the bill in time, nor did he allude to the fact in his answer.
    The bill set out a patent, issued in 1801, to William King and John Campbell, for two hundred and seventy acres of land, in the county of Washington (now in the county of Smyth), which is filed; that partition had never been made of this land between Wm. King, or his heirs, and said Campbell, or the purchasers from him.
    The bill also sets out the grounds on which the defendant claimed the land. That after the death of Wm. King—viz: on the 5th September 1834—Campbell purchased of Leonard Straw a tract of eighteen hundred acres of land, part of a large survey called the Kendall survey, embracing a part of the tract of two hundred *and seventy acres; for which Campbell paid to Straw $200. On the 18th of the same month Campbell sold and conveyed to Richardson a part of said eighteen hundred acres for $100; and on the 20th of June 1834, he sold and conveyed to the defendant Buchanan six hundred and fifty-five acres, part of the same tract of eighteen hundred acres, and including the portion of the two hundred and seventy acre tract, included, or said to be included, in the Kendall survey. To so much of the land as is included in this Kendall survey he claims under both titles.
    They insist that Buchanan stands in the shoes of Campbell; that Straw had no title, or, if he had, the purchase of Campbell enured to the benefit of King’s heirs. They insist further, that Buchanan is responsible for rents and profits; and they say thej- are willing that their proportion of the money paid by Campbell to Straw may be paid out of these rents and profits. The prayer of the bill is for a partition, for an account, and for general relief.
    Buchanan, in his answer, admits the grant to King and Campbell, and his purchase from Campbell of six hundred and fifty-five acres of land, which he supposed included about two hundred and thirty-one acres of the two hundred and seventy acre grant; and that Campbell also sold him one undivided moiety of thirty-nine acres, the residue of the said grant. And he believes it is true that no partition had been made between King and Campbell. He claims that the Kendall title, derived to Campbell through the purchase from Straw, Is an elder and better title than that under which plaintiffs are seeking partition. He says that Campbell held an adversary possession of the land from the time of his purchase from Straw until he conveyed it to the respondent; and from that time respondent had held continual adversary possession ever since. He denies that the purchase of the land by Campbell enured to the benefit of King’s *heirs. He took possession of the land in 1843, and since then had been at great expense in clearing, enclosing and improving it.
    At the March term, 1866, of the court, the death of A. K. Buchanan having been suggested, it is ordered by consent that this cause be revived in the name of P. C. Buchanan, jr., the personal representative of A. K. Buchanan, deceased. And at the March term 1867, it is said, “By consent of parties, this cause is revived against Martha Buchanan and four others, naming them, heirs at law of A. K. Buchanan.”
    The cause came on to be heard the 23d of June 1870, on the bill, answer and replication thereto, and exhibits filed, when the court held that the plaintiffs were entitled to partition of the tract of land of two hundred and seventy acres; and commissioners were appointed to make the partition. And one of the commissioners of the court was directed to take an account of the rents and profits of the land, based upon its condition in June 1843; and also to ascertain the just proportion of the complainants of the sum of $200, paid by Campbell to Straw in September 1834, for the eighteen hundred acres of the Kendall survey, embracing a part of the two hundred and seventy acre tract; the court holding that the purchase of Campbell enured to the joint benefit of Campbell and King’s heirs.
    The commissioners appointed to divide the land made their report. The commissioner also reported the account. He ascertained the proportion of the $200 which the plaintiffs should pay at $15.75, with interest from the 5th of September 1834, to 5th September 1870—$34.02=$49.77; and the rent from 1853 to 1870, at $20 a year, $340, interest $173.40. The commissioner states that he did not allow rents from 1843 to 1853 for the reason that the property was wholly unimproved at that time. These reports, though filed, were not acted on by the court.
    *The defendants applied to a judge of this court for an appeal from the decree of 23d of June 1870, which was allowed.
    Gilmore and J. W. Johnston, for the appellants.
    
      J. W. & J. P. Sheffey, for the appellees.
    
      
      Dismissal of Suit by Clerk—Waiver by Defendant.— Approved in Hinton v. Ellis, 27 W. Va. 424.
    
    
      
      Right to Claim Benefit of Adverse Title Purchased by Co-Tenant.—The principal case is cited with approval in Forrer v. Forrer, 29 Gratt. 134; Va. Coal, etc., Co. v. Kelly, 93 Va. 336, 24 S. E. Rep. 1020; Pillow v. Southwest, etc., Co., 92 Va. 153, 23 S. E. Rep. 32.
    
    
      
      Knowledge of Purchase and Claim of Co-Tenant Essential.—See Rust v. Rust, 17 W. Va. 905.
      On the general subject of joint-tenancy, see 2 Min. Inst. (4th Ed.) 465, et seq.
      
    
   STAPLES, J.

delivered the opinion of the court.

This is a suit for partition of a tract of land claimed by the appellees, as tenants in common with appellants. The court below rendered a decree in accordance with the prayer of the bill; and from this decree an appeal has been taken to this court. Various errors have been assigned, some of which relate merely to the regularity of the proceedings in the Circuit court, and will be first noticed.

It is objected that the clerk ought to have dismissed the suit, because of the plaintiffs’ failure to file their bill for more than two years after the execution and return of the original process. It certainly is the duty of the clerk to enter the suit dismissed if three months elapse after process is returned executed without the bill being filed. If, however, the bill is filed before an order of dismissal is entered, it is entirely competent for the defendant to waive the objection. In this case he will be held to have made such waiver by filing his answer and consenting to a hearing upon the merits.

It is also objected that the suit was not regularly revived against the appellants. The record states that by consent of parties the cause is revived against the persons therein named, heirs at law of Andrew Buchanan. No objection on this ground having been made in the Circuit court, this court must presume the revival regularly entered with the consent of the proper parties.

It is further objected that the appellees have offered no proof that they are representatives of William King the elder. It does not appear that this objection was *ever suggested, or even hinted at, in the Circuit court. The answer of Andrew Buchanan, under whom appellants claim, does not question the right of the appellees to sue in the character they assume. The ground therein taken in opposition to the partition is that the Eendall title, derived through purchase from Straw, is superior to the King and Campbell title, under which appellees claim; that the said Buchanan and those under whom he claims have held adversary possession of the land in controversy a sufficient time under the statute to prevent a recovery; and further, that the purchase of the outstanding title by Campbell did not, in point of law, enure to the benefit of the appellees. Throughout the proceedings it is impliedly, if not expressly, conceded, that the appellees are properly before the court as heirs or devisees of William King. Under these circumstances, I think it is too late to object to the decree for the want of proof of these facts.

These points being disposed of, it remains to consider the objections to the decree upon its merits. It is conceded by the counsel for the appellants that, as a general rule, a joint tenant, or tenant in common, is not permitted to purchase in an outstanding adverse title to the common property for his own benefit to the exclusion of his co-tenant. He insists, however, that the co-tenant is required, within a reasonable time, to make his election to claim the benefit and to contribute to the expense incurred in the purchase of such title. If he unreasonably delays in this until there is a change in the condition of the property, or in the circumstances of the parties, he will be held to have abandoned all benefit arising from the new acquisition. I think this is a correct statementof the principles of law governing in such cases. It does not, however, cover the whole ground. If the co-tenant is to be considered as forfeiting, by his delay, every advantage arising from the purchase of the outstanding title, it should appear not only that he was ^apprized of the purchase, but also of the claim set up by his companion. The co-tenant may reasonably presume the acquisition was made in support of the common title, and he may act upon that presumption. He has the right to consider the outlay in such case as a joint charge to be settled and accounted for as any other necessary expense incurred in protecting the joint estate. When, however, he is otherwise informed, it is then his duty, within a reasonable time, to claim the benefit of the new title and offer to contribute his share of the sum expended in its acquisition.

It seems to me, moreover, in such case the burden is upon the purchasing tenant to show that his companion had notice of the purchase and the exclusive claim asserted by him. As every joint tenant, or tenant in common, occupies a position of trust and confidence towards his companions, he who seeks to change these relations, and to expel the others from the enjoyment of the common property, must establish the facts which make such expulsion just and equitable.

Tested by these principles, the questions arising in this case are easily solved. The outstanding adverse title was acquired by John Campbell on the 4th of September 1833, and was by him conveyed to Buchanan on the 20th June 1843. It is not pretended —at least, it is not charged—that the appellees or their ancestor, Wm. King, had any notice of this purchase and sale by Campbell. The deed to the latter from Straw being for a larger tract, of which the land in controversy is part, furnished no such notice. And the same may be said in respect to the deed to Buchanan. There is not á line or word in it to show that it embraces the land in dispute. There was nothing in the character of the transaction calculated to give it notoriety. Campbell’s purchase from Straw amounted to eighteen hundred acres, the consideration of which was two hundred dollars. The land in controversy contains three hundred and *sixty-three acres. The amount, therefore, of appellees’ contribution to the new purchase would have been fifteen dollars and seventy-five cents.

It is reasonable to suppose that a sum so inconsiderable scarcely attracted the attention of the parties. In itself it affords a strong presumption that neither King nor his devisees, in failing to advance it, were actuated by any improper motives. Certainly it is repugnant to any notion of equity, that the non-payment of such a sum shall be permitted to work the forfeiture of an estate.

It is to be observed also, that the appellants do not raise this question in any form in the court below. They rest their defense there on entirely different grounds. If the point had been suggested in the Circuit court, the appellees might have accounted for the delay, and thus removed a difficulty now presented for the first time in the argument here.

It is, however, argued by appellant’s counsel that the taking of a conveyance to himself by Campbell, the recording of that conveyance, and the sale by Campbell to Richardson, was an actual ouster by the former of the heirs and devisees of King. At all events the acts of Campbell are such acts as are made by section 15, chapter 135, Code of 1860, equivalent to actual ouster. The cases cited in support of this proposition, do not sustain it. The acts mentioned, considered singly or together indicate a mere claim of title to the whole estate. But a claim of title can never change the possession and without such change there can be no disseisin. In Peaceable v. Read, 1 East. R. 568, a tenant in common levied a fine of the whole premises, and afterwards took all the rents and profits for nearly five years, without account; but it did not appear he held adversary possession at the time of levying the fine. It was decided, this was not sufficient evidence from which the jury might presume an ouster. And although one tenant in common takes *the whole profits, yet this does not divest the possession of his companion. There must be an adversary possession ; such acts as if done by a stranger would be acts disseisin; and they must be shown to have been done adversely to the rights of the co-tenant, and with intent to oust him, and to assert the actual and exclusive ownership of the entirety. 1 Green’s Cruise, on real property, page 393; Adams on ejectment, 55; 1 Eomax Digest, 504. The taking a conveyance by Campbell and its recordation did not, therefore, operate as an ouster of the appellees, or those under whom they claim; nor did the deeds to Richardson and Buchanan respectively have any such effect.

It is well settled that a conveyance by metes and bounds of part of an estate held in common, though valid against the grantor, cannot prejudice the rights of the co-tenant, unless followed by entry and adversary possession. The grantee becomes thereby merely a tenant in common with the co-tenants of his grantor; his possession is in presumption of law, the possession of all, and is to be deemed in support and not in derogation of the common title. Robinett v. Preston’s heirs, 2 Rob. R. 273; Hannon v. Hannah, 9 Gratt. 146.

It is equally true that if the purchaser takes a conveyance of the whole estate from one tenant in common, and enters into exclusive possession under such conveyance, claiming title to the whole, this is an ouster of the other tenants; and the grantee so entering and claiming title may rely upon his adversary possession, if continued a sufficient period, as a bar to a recovery by the other tenants. Town v. Needham, 3 Paige’s R. 549; Clapp v. Bromagham, 9 Cowen. R. 530. How do these principles affect the appellants? Andrew F. Buchanan, under whom they claim, purchased the land on the 20th of June 1843. This suit was instituted in November 1852; constituting an adversary possession, if it existed at all, of about nine years. But, in fact, there is not the slightest foundation for supposing there was any such possession. The record contains no evidence bearing upon the point, except the report of the commissioner, which states that no rents are allowed by him from 1843 to the year 1853; for the reason that the property was wholly unimproved at that time, and of no rental value. This would seem to exclude the idea of any such occupation as amounts to a disseisin of the appellees or those under whom they claim.

The provision in the Code of 1860, relied on by counsel, has no such effect as is claimed for it. It has been the established doctrine of the courts, that a tenant in common cannot maintain ejectment against his companion without proof of an actual ouster. Difficulties often occur in determining whether certain acts constitute an ouster. Parties otherwise entitled to recover are defeated from an inability to prove it. jit was, therefore, provided it should be sufficient for the plaintiff to prove some act amounting to a total denial of the plaintiff’s right as co-tenant.

It was not intended to alter well established principles of law governing the relations of joint-tenants or tenants in common to each other, but simply to enlarge existing remedies. Doe, lessee of Taylor, v. Hill, 10 Leigh, 457.

For these reasons, I think the decree of the Circuit court should be affirmed. But I am of opinion the appellees are not entitled to recover any rents or profits against the appellants, upon the principles settled by this court, in Early v. Friend, 16 Gratt. 21.

Decree affirmed.  