Boggess v. Meredith

Citations

• 16 W. Va. 1
• 1879 W. Va. LEXIS 64

Syllabus

<p>1. An actual ouster of one tenant in common cannot be presumed, except where the possession has become tortious and wrongful by the disloyal acts of the co-tenant, which must be open, continued and notorious, so as to preclude all doubt of the character of his holding or the want of knowledge thereof by his co-tenant. This conduct must amount to a clear, positive and continued disclaimer and disavowal of his co-tenant’s title, and an assertion of an adverse right; and a knowledge of this must be brought home to his co-tenant.</p> <p>If one tenant in common sells and conveys to a stranger, without the knowledge or consent of his co-tenant, the entirety or an undivided moiety of a portion of the land defined by boundaries, such sale and conveyance does not make such stranger a co-tenant in the lot purchased with the other co-tenant of the entire tract, so as to give an absolute right to have a portion of it assigned to him. 2.</p> <p>Under such circumstances a court of equity ought in making the partition of the entire land to require as parties in the suit, not only the original co-tenants of the entire tract, but also the purchaser of a part of the land from one of these co-tenants, and ought to assign to this purchaser the parcel of land bought by him, if he purchased the entirety, or a moiety of it, if he purchased but a moiety, and consider the part so assigned as a portion of the share of the co-tenant who sold the land, if this can be done with justice to the other co-tenant, or if he assents thereto; and the whole residue of the tract not so assigned to the purchaser should be partitioned according to their respective rights among the co-tenants of the entire tract. 3.</p>