Davis v. Givens

Hough, J.

This was an action of ejectment. The plaintiff' recovered judgmeut, and the defendant has appealed.

In 1857 Jeremiah Harman died, seized of the land in controversy, leaving a will, the first clause of which isas follows: “ I will and bequeath to my beloved wife, Elizabeth Harman, the farm on which I now reside, being one hundred and twenty acres of land, and all my personal property, cattle, horses, hogs and every other species of personal property, as long as she shall remain my widow, for the purpose of raising my family of children, and at her death or marriage, I desire that the remainder of my estate, real and personal, be equally divided among my children, to-wit: Jacob, Martha, John, Jasper, Andrew, Nathan, Valentine, Peter, Mary J., Jeremiah and Elizabeth Harman.” The second clause directs a horse, saddle and bridle to be given to each of the minor children, at their majority, to equalize them with those already of age. The third clause directs the disposition of personal property to pay debts if needed. These are all the provisions of the will. On May 11th, 1869, Andrew J. Harman, Peter Harman and Mary J. Johnson, children of Jeremiah Harman, deceased, conveyed their interest in the land in controversy to their brother, Valentine Harman ; and on the same day *96 Valentine ITarman and Elizabeth Harman, the widow of Jeremiah Harman, executed a deed of trust conveying the land sued for, to secure the payment of two promissory not,es given by the grantors in said deed, to one Albert Venable. At a sale under said trust deed, Albert Venable and William Givens purchased the land conveyed, and received a deed therefor. There was testimony tending to show that Mrs. Harman refused to surrender possession to Venable and Givens, and that an action of ejectment was brought against her by them, which action was compromised by the payment to her of $50 by Givens for the possession of the land for himself and Venable. Venable did not furnish any portion of the $50 paid by Givens, and declined to do so, for the reason that he had paid the entire purchase money at the trustee’s sale, amounting to $500, as well as the fees for the execution of the trustee’s deed. On January 9th, 1873, Venable conveyed to plaiutiff his undivided interest in the land in controversy. The ouster of the plaintiff was admitted, so that the only question is as to his right.

It is unnecessary to determine the extent of the power conferred upon Mrs. Harman, by the terms of the will, over the property devised to her. Whatever right was acquired by Givens and Venable under the trust deed, was held and owned by them as tenants in common; and there was testimony tending to show that the actual possession was acquired by them in the same way. So that it is immaterial for the purposes of the present action, whether Venable and Givens acquired the present right of possession by their purchase at the trustee’s sale, or by their subsequent purchase from Mrs. Harman. In either event Venable was entitled to share the possession, and the plaintiff has succeeded to his rights. The judgment must therefore be affirmed.

All the judges concur.