SHAFFER v. SHAFFER et al.

Preston County. Decree Affirmed.
Miller, Judge.

1. A widow, entitled to dower, may maintain a suit as guardian for her infant children to have land inherited and owned by such infants and adults partitioned, and to have her dower therein assigned to her.

2. A deed between tenants in common, co-tenants or co-parceners, by which in an effort at partition, they each convey ог quit claim to the others, the portions allotted to them respectively, conveys no title to the grantee; it amounts simply to a severance of the unity of possession.

3. Although section 1, chapter 79, Code 1906, confers jurisdiction on a circuit court in a partition suit, to adjudicate all questions of law affecting the legal title, that may arise therein, a decree or Judgment in such suit is as conclusive as in other suits; nevertheless, if no issues affecting the title are presented for decision, or the decision of which was necessarily involved therein, such judgment and decree invests no title in the partitioners.

4. A decree in a suit brought by a husband and wife, partitioning land, and of which the bill alleges the wife's father died seized and possessed, and which decree divides and partitions to the husband and wife jointly the part inherited by the wife, wtihout pleadings putting in issue any conflicting rights between plaintiffs, invests no title in the husband to the wife's land.

5. But such a decree will not afterwards estop the husband or his heirs from showing right and title to an interest in the land so partitioned, acquired by deed from the wife's father in his lifetime, such decree not being inconsistent with such deed.

6. If an ancient deed be lost, but its existence and contents be proven by oral evidence; and it be also proven to have been recently in the possession of and produced by the grantee, and such account thereof is given, as might be reasonably expected, under all the circrmstances, such oral evidence is admissible to establish such deed or grant, without otherwise proving the due execution and delivery thereof; and such deed will be treated as presumptively genuine, until such presumption is overcome by evidence to the contrary.

KING et al. v. PORTER et al.
Randolph County. Affirmed.
Robinson, Judge.

1. To be notice to a purchaser, possession of land by one other than the vendor must be actual, distinct and visible. It must be such as is inconsistent with the title of the vendor. occupied improvement is not notice of another's rights.

A mere un

2. A purchaser with notice from a purchaser without notice is protected in his title.

BUFORD et al. v. CHICHESTER et als.

Wood County. Reversed and Bill Dismissed.

Williams, President.

1. Equity has jurisdiction to reform a written agreement, by supplying any material matter omitted by mutual mistake of the contracting parties.

2. Such equitable remedy is not absolute, but depends upon whether the reformation sought is essential to the ends of justice.

3. If the omission which is sought to be supplied would give the agreement no different meaning, or legal effect, from what it had before, the omission is immaterial, and the remedy will be denied.

4. A general demurrer to a bill which on its face shows no ground of equity jurisdiction, and which cannot be cured by amendment, should be sustained, and the bill should be dismissed. But if the bill shows a cause of antion which would be good in a court of iaw, the dismissal should be without prejudice.

TETER V. IRWIN

Barbour County. Decree Affirmed.
Brannon, Judge.

1. Death of a client ends the power of his attorney at law.

2. Revival of a cause against heirs of a deceased defendant by consent of such heirs dispenses with process to revive and makes them parties,

3. To overthrow a decree by consent given by an attorney at law on the ground of his want of authority, the burden to prove such want is on the party asserting it, and must be clear and full,

4. One about to purchase property under a decree of a court baving jurisdiction is not bound to inquire into the authority of an attorney representing a party.

5. The relation of client and attorney at law authorizes the attorney to consent to a decree binding his client.

6. Authority of an attorney to act for his client in consent by the attorney to a decree binding his client may be shown by the conduct of the client, his acquiescence therein or other circumstances proving it.

7. If an attorney at law act without authority in consenting to a decree, and the client afterwards recognize his authority, or, with knowledge of it, acquiesce in it, and make no objection to it when he knows that other persons are acting upon faith of the attorney's authority, it is a ratification making the decree binding on the client.

SMITH v. REPPARD.

Tyler County. Affirmed.
Williams, President.

Points of syllabus in Kline v. McKelvey, 57 W. Va. 29, re-affirmed

and applied.

HAWKINS v. BLAKE et als.

Raleigh County. Decree Reversed; Bill Dismissed.

Poffenbarger, Judge.

1. The limitation in section 14 of chapter 104 of the Code of 1906, upon suits to avoid voluntary conveyances, is applicable to such a conveyance made with fraudulent design on the part of the grantor, if such design is not known to, nor participated in, by the grantee.

2. Said statute runs from the date of the conveyance, unless the plaintiff is in a position to claim the benefit of some exception from its operation or suspension thereof.

3 If a debtor procure a conveyance to be made to himself and his infant children jointly, the latter being volunteers and free from the imputation or charge of fraud by reason of the tenderness of their age, and then execute to the creditor a deed of trust on the land, such deed of trust is not the equivalent of a distraint or levy on the subject of the conveyance or any part thereof and does not affect the interests of the children.

WARD v. HOTEL RANDOLPH COMPANY.

Randolph County. Order Reversed; Case Remanded.
Brannon, Judge.

1. Notice must be given to parties interested of an application for appointment of a receiver, except in case of emergency, or when the application is made after process served and in term and the bill asks the appointment

2. An appointment of a receiver, though the bill ask it, made without process served, and before decree on the merits, without affidavit to support the application, is erroneous.

HUDKINS V. BUSH, Receiver.

Randolph County. Judgment Affirmed.
Brannon, Judge.

1. A mere certificate by a clerk that by an order of his court a certain person had been appointed a receiver, is not admissible to prove, and does not prove, such appointment.

2. In an action against a receiver of a railroad company to recover damages for killing cattle by a train, it must be proven that the railroad was being operated by areceiver.

FIRST NATIONAL BANK OF PHILIPPI v. KITTLE et al.
Barbour County. Judgment Affirmed.
Miller, Judge.

A creditor is bound to use proper care and diligence in the management, and collection of collateral securities; and a surety will be released, to the extent of the loss actually sustained by the negligence of the creditor, to the same extent, as if such loss was due to some positive act of the creditor.

FEDER, Adm'r., v. HAGER et al.

Boone County, Reversed, and Judgment Entered Here.

Robinson, Judge.

1. A decree of sale, reciting that the land proceeded against and directed to be sold is “school land” or “waste and unappropriatted land," is sufficient prima facie evidence of the state's title to meet the requirements of points 3 and 4 of the syllabus in this case on former writ of error, 64 W. Va. 452.

2. The whole of the record of proceedings for the sale of school lands, together with the deed made in pursuance thereof, should be looked to for the purpose of identifying land thereby sold as land now in controversy.

TUNNEY v. WHEELING STEEL & IRON CO.

Affirmed.

Ohio County.
Robinson, Judge.

1. A bill of exceptions in relation to a judgment entered at a term which is adjourned thereafter to an adjourned term must be Paved either before the adjournment to the adjourned term or within thirty days after that adjournment.

2. The thirty days allowed for the taking of a bill of exceptions, when the exceptions relate to a judgment entered at a term which is adjourned to an adjourned term, run from the date of that adjournment, and not from the end of the adjourned term.

HURLEY & SON v. NORFOLK & WESTERN RY. C.

Mingo County. Judgment Reversed, Verdict Set Aside and Case Remanded.

Poffenbarger, Judge.

1. If, after a common carrier has transported goods to the place to which it agreed to carry them, the consignee pays the freight on them, receipts for them, makes a contract for reshipment thereof with another carrier, and leaves them in the warehouse or freight room of such first carier to await reshipment, duty and liability as a carrier under the first contract are thereby changed to those of warehouseman.

2.

Such a state of facts being admitted on the trial of an action to recover for loss of goods by fire, while so stored, it is error to submit to the jury the question of liability as carrier.

3. It is proper to refuse to instruct the jury, in an action by a consignee against a carrier for loss of goods by fire at the place of delivery, that it was the duty of the consignee to remove them without delay, for the law allows a reasonable time for the removal thereof.

4. It is proper, in such case, to refuse to instruct that payment of the freight alone terminates the contract of carriage.

The legal world is also a stage,

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A hundred thousand disposals to his credit,
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With fingers' ends dispensing justice,

And counting the years and months.

Last scene of all,

That ends this strange and splendid history,
Is titled ease in dark oblivion,

Sans work, sans rest, sans golden links to life.

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