McIntosh v. Kolb
McIntosh v. Kolb
Opinion of the Court
The opinion of the Court was delivered by
Plaintiffs appeal from an order of nonsuit. They sued in 1915 for partition of a tract of land, claiming six-sevenths thereof. Defendants denied that plaintiffs had any interest and pleaded the statute of limitations and title in themselves by adverse possession. The sole issue made by the pleadings and evidence was the issue of title in defendants, and that issue was tried before the Court and a jury.
Prom plaintiffs’ evidence it appeared that on October 26, 1831, W. W. Weeks and Harriet E. Harvin, for $100 paid by Mary A. Weeks, conveyed the tract to Mary A. Weeks and her children — •habendum, “unto the said Mary A. Weeks, her children and assigns forever.” The word “heirs” printed in the habendum, was stricken out.
At date of this deed Mary A. Weeks had three children living, one of whom is the plaintiff, Mrs. McIntosh. The other two died in infancy. After the deed she had five other children, one of whom is the plaintiff, Mrs. Geddings. The other four conveyed all their interest in the land to plaintiffs.
On February 17, 1892, Mary A. Weeks conveyed the entire estate in the tract to Ann J. Ardis, “her heirs and assigns forever.” On November 19, 1892, Ann J. Ardis conveyed it to defendants. These deeds ■ were all duly recorded. Defendants have been in possession claiming adversely, since November 19, 1892.
*5
Appelllants earnestly insist that this case ought to be distinguished, on the ground that in all cases in which that rule was applied the deeds construed were deeds of gift from parents to their children and living grandchildren, for whom a grandparent would naturally have more affection and inclination to provide than for unborn grandchildren; while in this case the deed was made at the instance of the mother for valuable consideration paid by her, and it should be presumed that a mother would naturally intend to benefit all her children alike, those to be born as well as those already born.
The foregoing conclusions make it unnecessary to consider the other questions argued.
Judgment affirmed.
Reference
- Full Case Name
- McINTOSH ET AL. v. KOLB ET AL.
- Cited By
- 9 cases
- Status
- Published
- Syllabus
- 1. Limitation or Actions — Minority or Cotenants. — The minority of a cotenant will prevent the running of statute against adult cotenants. 2. Deeds — Taking Eefect — Execution.-—A deed takes effect at its execution. 3. Deeds — Construction—Deed to Mother and Her “Children”— Aeter-born Children. — In case of deed to m'other and her children, where there are children living at date of the deed, the mother and children then living take, and after-born children are excluded, unless there is something in the deed to show a contrary intention. 4. Deeds — Construction—Intention.—In construing deed, Court will ascertain and give effect to the intention expressed without regard to whether it is in accordance with Court’s ideas as to what provisions of deed should have been. 6. Judgment — Nonsuit—Decision on Merits. — In action involving title to property, a nonsuit granted on ground that undisputed evidence showed that plaintiffs had acquired title by adverse possession was in effect a decision of the case on its merits. ' 6. Adverse Possession — Running of Statute — Erroneous Opinion on Matter of Law.- — Statement by mother’s grantee of land conveyed to mother and her children to child claiming interest in land upon mother’s death that she could do nothing toward giving the child her share until the youngest of the mother’s children became of age., referring to after-born children not entitled to interest therein, was an erroneous opinion on a matter of law which did not affect the run • ning of the statute. 7. Tenancy- in Common — Possession Under Deed from Cotenant.— Where mother having property in common with daughter executed deed purporting to convey the entire fee, and grantees took possession of land, such possession and that of others to whom grantees conveyed property amounted to an ouster of daughter, so that possession for requisite period gave grantees title by adverse possession. 8. Adverse Possession- — Jury Question. — Ordinarily the question of adverse possession is one of fact for the jury, but, where the evidence is undisputed and susceptible of but one inference, it becomes one of law for Court.