Rust v. Rust

Citations

• 17 W. Va. 901
• 1881 W. Va. LEXIS 88

Syllabus

<p>1. When an answer to a bill in chancery flied for partition of lands sets up affirmative matter and prays relief thereon, and there is a demurrer filed to so much of said answer, as sets up such affirmative matter and prays relief thereon, it is not error for the court to sustain such demurrer, if it appears to the court upon the face of such answer, that such affirmative matter is foreign to the pur~oses and object of the original bill in the cause and not germain thereto, or not in anywise connected therewith and not properly in defence of any matter or material allegations of the original bill.</p> <p>2. An actual ouster of one tenant in common cannot be presumed, except where the possession has become tortions and wrongful by the disloyal acts of the co-tenant, which must be open and 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 the co-tenant. Boggess v. Meredith, 16 W. Va. 1.</p> <p>3. On a bill claiming a share of a tract of land and asking for partition and for general relief, the plaintiff's right to partition be-lug establised, under the prayer for general relief there may be a decree for an account of reats and profits.</p> <p>4. One tenant in common may maintain a suit in equity against his co-tenant, who has occupied the whole of the common property.</p> <p>5. Whenever the nature of the property is such as not to admit of Its use and occupation by several, and it is used and occupied by one only of the tenants in common, or whenever the property, though capable of use and occupation by several, is yet so used and occupied by one as in effect to exclude the others, he receives more than his just share and proportion in the meaning of the statute.</p> <p>G. When the commo