the matter for which suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined.

Reference must be had both to the debt claimed and to the damages alleged, or to the prayer for judgment." The plea in the case was a general denial of the unlawful detention of the property, and, of course, if defendant sustained his plea, there would be no damages to the plaintiff. But the question of damages was a part of the litigation, and a matter of proof, as much as the main issue; and if plaintiff had failed to introduce testimony to prove damages, and had only recovered judgment for the property or its value, the judgment would have been adjudicated, as to damages, in any subsequent action to recover the damages she might have been entitled to in the first instance. White v. Van Houten, 51 Mo. 577. Neal v. Van Winkle, 24 W. Va. 401 (Syl., point 1): "To give this court jurisdiction in a cause involving matters simply pecuniary, the record must show, not only that the party complaining has been prejudiced by the decree or judgment of the inferior court, but that the amount in controversy in this court exceeds the value of $100, exclusive of costs."

The instructions asked for by defendant and refused by the court are as follows: "(1) The court instructs the jury that the declarations and statements made by the plaintiff, Jane Davis, as to the ownership, should be considered by the jury, in determining the title to the cattle in question. (2) The court instructs the jury that, in finding a verdict, they must consider the statements of the plaintiff, Mrs. Davis, to George Stevens, William Wooten, Anderson Pauley, Nettie Dunlap, and Henry Blake, as sworn to by them, that the cattle belonged to Tom Davis. (3) If the jury find from the evidence that the title to the property was in Mr. Davis at the time he delivered same to the defendant, Webb, they must find for the defendant. (4) The court instructs the jury that the plaintiff must have a preponderance of testimony in order to recover. (5) The court instructs the jury that if they find from the evidence that plaintiff held out and represented to the community, by words or acts, that her said husband was the owner of the cattle in controversy, and that her said husband heretofore disposed of her like personal effects without her consent, but was ratified by her, and that said defendant, Webb, relied upon these representations and believed them to be true, and bought the said cattle, in good faith, as the property of Thomas Davis, then the jury should find for the defendant. (6) The court instructs the jury that if they believe from the evidence the calf purchased from William Hill was the mother of one of the steers in controversy, and that said calf was purchased before June 12, 1891, and that the plaintiff, Jane Davis, and T. A. Davis were then living together as man and wife, then it is immaterial whether the plaintiff, Jane

Davis, helped to pay for said calf by sewing for Hill's wife, or giving them beans which she had raised on her husband's place. The law as it was prior to June 12, 1891, gave to the husband, while he and his wife were living together as man and wife, the entire proIceeds of her labor, and she could acquire no interest in or title to the steer which was the offspring of the calf purchased from Hill by reason of any part of the purchase price of the said Hill calf having been paid by her labor."

There was evidence tending to prove declarations and statements made by plaintiff concerning the ownership of the property which were adverse to her ownership, and also tending to prove the ownership in her husband, who sold the property to defendant. Instruc tion No. 1 simply told the jury that they should consider such declarations and statements in determining the title to the cattle in question, assuming that it must have been proven to the satisfaction of the jury that plaintiff had made such declarations and statements. Plaintiff, in her testimony, denied positively that she made them. The instruction should have provided further, to be proper to be given, that such declarations and statements should be considered in case the jury believed from the evidence that they were made by the plaintiff. Instruction No. 2 is subject to the same criticism, but more likely to mislead the jury than the first, as it provides that the jury must consider the statements of the plaintiff, Mrs. Davis, as sworn to by the witnesses named; clearly indicating what weight to give to the testimony of said witnesses as to such statements. Without qualification, providing the jury believed such declarations and statements were made, both these instructions were properly rejected.

Instructions Nos. 3 and 4 were clearly right, and should have been given. In Bank v. Waddill, 27 Grat. 451, Judge Staples, in writing the opinion for the court, says: "It will not be disputed that whenever an erroneous instruction is given, or, what is the same thing, a correct one refused, the judgment will be reversed, unless the appellate court can see from the whole record that even under correct instructions a different verdict could not have been rightly found, or unless it is able to perceive that the erroneous ruling of the trying court could not have influenced the jury." In the case of Nicholas v. Kershner, 20 W. Va. 251, this was quoted with approval; and in Wiley v. Givens, 6 Grat. 277, it was held that, "an erroneous instruction having been given by the court below, the appellate court could look no further than to the propriety of the instruction given, and, if that was erroneous, the judgment would be reversed, and a new trial granted."

Instruction No. 5 would be good in case there was any evidence tending to prove that defendant knew of such representations being made by plaintiff as to the property belonging to her husband, and that he relied upon such representations, and believed them to be true,

and bought said cattle, in good faith, as the property of the husband, because he so relied on them; but it does not appear that such representations were made to him, or that he even knew they were made. In his testimony he says nothing about it, and, while the representations so made by her were proper to be proven upon the issue as touching the ownership of the property, yet the instruction would be calculated to confuse and mislead the jury, unless there was some evidence upon which to base the last part of the instructions; and, there being none, it was properly rejected.

The sixth instruction is objected to because: "It does not propound the law correctly. Neither is it in accordance with the facts proven. As between a husband and wife, even at common law, the husband could set apart and give to his wife personal property, and her title thus acquired would be good as against third parties as well as her husband." The whole evidence in this case, as well as the facts and circumstances, go to show that the ox "Bright" belonged to the said plaintiff, and was treated by her said husband as her ox, and that no claim was even made by him to said ox until after he had gotten out of the penitentiary, and went forcibly to take said oxen from the plaintiff to deliver them to Webb. The evidence was conflicting as to the ownership. The ox "Bright" was the offspring of a cow bought from William Hill when she was a calf, and for which the husband, Tom Davis, testified he paid $2.50, of which $1 was paid in money, and $1.50 paid in a shoat or hog. Plaintiff said she paid for the calf by making a dress for Hill's wife, and paid part in beans. Hill corroborated the husband, and said he knew nothing about the dress, and they raised their own beans; that Tom paid for the calf $1 in money, and a shoat for $1.50. Plaintiff says: "If I am not mistaken, it will be 11 years in November since we bought the calf,-the mother of one of these steers, understand. The steers were only eight years old last spring." The questions involving the ownership of the property were for the jury, and it was proper for the court to instruct the jury as to the law. In Jones v. Reid, 12 W. Va. 350 (Syl., point 1), it is held, "At law, a wife's earnings belong absolutely to the husband." This has been the law from time immemorial. I am glad to know this cruel and antiquated blot on our civilization was removed by statute in 1891. The second point in same case holds that: "When, by the husband's consent, the wife earns money, with the understanding and agreement between them that it is to be hers, and the rights of creditors do not intervene, it will, in a court of equity, be given her, as against the devisees and distributees of her husband."

Instructions 3, 4, and 6 properly propound the law, and should have been given. It is the plain duty of a trial court, when asked to do so by either party, to instruct the jury on questions of law involved in the case, when it

can thereby aid them in reaching a right conclusion and proper verdict. For the reasons herein stated the judgment of the circuit court is reversed, the verdict of the jury set aside, and the case remanded for a new trial to be had therein.

(46 W. Va. 225)

THORN v. SPROUSE et al. (Supreme Court of Appeals of West Virginia. April 1, 1899.) LIMITATIONS

VOLUNTARY DEED CREDITORS'
SUIT.

1. Where a deed from a husband to his wife is attacked as voluntary, and for that cause only, by bill in equity by a judgment creditor, such suit must be brought within five years after the deed was executed and delivered.

2. Where a petition is filed in said cause by a judgment creditor of the husband, whose judgment is subsequent to said conveyance, and no process is issued upon said petition, and the party holding the title to the land sought to be subjected by said petition does not answer the same, it is error to subject the land to the lien of such judgment in said suit. (Syllabus by the Court.)

Appeal from circuit court, Wirt county; A. L. Boreman, Judge.

Suit by Z. E. Thorn against N. Sprouse and others. Decree for plaintiff, and defendant N. Sprouse appeals. Reversed in part, and affirmed in part.

T. A. Brown, for appellant. William Beard, for appellee.

ENGLISH, J. This suit in equity was instituted in the circuit court of Wirt county by Z. E. Thorn against Nicholas Sprouse, to March rules, 1891; having for its object the enforcement of a vendor's lien reserved on the face of a deed from S. H. Smith and wife to Nicholas Sprouse, dated May 19, 1877, to secure a balance of purchase money, and to set aside as fraudulent a certain deed made by said Sprouse and wife to one Susan R. Dalrymple, and also a deed from Susan R. Dalrymple to Louisiana Sprouse, wife of Nicholas Sprouse, and to subject the land so conveyed to the payment of a judgment obtained by said Thorn against said Louisiana Sprouse and Nicholas Sprouse in an action of ejectment in the circuit court of Wirt county on the 29th of March, 1890. Such proceedings were had in the case that on June 25, 1893, it was ascertained that there was due the plaintiff, Thorn, on the note for $100 filed with his bill, the sum of $16.25, after allowing said Sprouse credit for a tract of land conveyed by the defendant S. H. Smith to H. B. Hylbert prior to the conveyance by the defendant Smith to the defendant Sprouse of the tract of 135 acres in the bill mentioned, including principal and interest up to May 2, 1893, after deducting all credit to which said Sprouse was entitled, and held said sum to be a lien upon said land, and also decreed that plaintiff had a lien on said land for the sum of $138.21, being the amount of a judgment for costs in an ac tion of ejectment, and directed a sale of the

land to satisfy said liens. An appeal was taken from said decree to this court, which resulted in the same being reversed and remanded. A full statement of the case can be found in 39 W. Va., commencing on page 706 (20 S. E. 676); this court holding that the lien for the purchase money could not be enforced where the dower right of the wife had not been properly released, unless the defendant was allowed to retain a sufficient amount of purchase money to adequately indemnify him against such contingent right of dower. After the cause was remanded to the circuit court, the plaintiff, Z. E. Thorn, filed an amended bill, reciting the proceedings had in this court, and alleging that said S. H. Smith and Annie E. Smith, his wife, had made and acknowledged, in due form of law, a release of the contingent dower in and to said land, which was then in Sprouse's possession, and that in this manner said defective acknowledgment was cured, and the title of Nicholas Sprouse in said land was perfected, and that the plaintiff was entitled to a decree for the balance of the purchase money due by the note for $100 filed with his original bill, after deducting therefrom the credits thereon indorsed. Plaintiff further charged that the claim of defendant Louisiana Sprouse for abatement of the purchase money evidenced by said $100 note, by reason of this conveyance by the defendant S. H. Smith of a small tract of land to H. B. Hylbert, which she claims is a part of the same land conveyeu to N. Sprouse by said Smith and wife by deed of May 19, 1877, was not well taken, and that said claim had no foundation in equity; that the defendants Smith and Sprouse, about the date of said deed, exchanged or traded lands; that the said N. Sprouse prior to that time was owner of a tract of land which he conveyed to S. H. Smith as a part of the consideration for the conveyance from said S. H. Smith and wife to Nicholas Sprouse, dated May 19, 1877, for the tract of 135 acres, more or less, therein conveyed; that the boundaries of said tracts were well known to the parties, and said lands were exchanged in gross, said Sprouse agreeing to pay a certain difference or boot money, being the notes mentioned in said deed from Smith and wife to Sprouse; that the tract mentioned as being conveyed to said Hylbert was conveyed, as alleged in said answer, six years before the conveyance to Sprouse; that the same was in said Hylbert's possession, and was partly cleared and fenced by him before said exchange and conveyance, and was no part of the tract exchanged, nor of the consideration moving said transaction, and was not intended to be included in said deed, if the same is in fact included therein, as in said answer alleged; that it was mutually agreed between said defendants Sprouse and Smith, in order to save expense of surveying the land, to describe the same as best they could from their respective deeds; that the land that had prior thereto been conveyed to said Hylbert was excluded from the conveyance by said

Smith to Nicholas Spronse, and was intended and understood to be excluded by the calls in said deed, of which Sprouse and wife had notice. And he prays that, if the court be of opinion that the description in said deed includes said Hylbert land, the same may be reformed and corrected, as having been executed by mistake, so far as it includes said small tract, and that the same may be made to express the agreement between the parties thereto. The defendant Nicholas Sprouse answered said amended bill, relying on the answers to the original bill, and putting in issue the material allegations of the bill and amended bill. Defendants also alleged that they tendered $20 to the plaintiff, the same being more than was due him, including interest on said $100 note executed by respondent in favor of S. H. Smith on May 19, 1877, and secured by vendor's lien, and that plaintiff refused to accept the said sum of money, and thereupon the same was deposited with the clerk of the court, with instructions to pay it to said Thorn on demand, of which fact the plaintiff was notified; and he renewed said tender with his answer. The respondent Louisiana Sprouse further says that her property should not be subjected to the payment of her husband's debts, inasmuch as they were all contracted long after she had purchased and taken a deed for said land. Which answers were replied to generally. Depositions were taken by both plaintiff and defendants, and on the 12th of October, 1897, the cause was again heard upon the pleadings and proofs. The court held that the deeds made from Nicholas Sprouse and wife to Susan Conrad, and from Susan Conrad to Louisiana Sprouse, mentioned in the pleadings, were fraudulent in fact, and made for the purpose of hindering, delaying, and defrauding the creditors of said N. Sprouse; decreed that the same be set aside, canceled, and annulled, as fraudulent and void, so far as the claims of the plaintiff and the petitioner D. H. Leonard are affected thereby; ascertained that the deed made by S. H. Smith and wife to N. Sprouse does not, by the calls thereof, include the land conveyed to H. B. Hylbert; held that neither the defendants Louisiana Sprouse and Nicholas Sprouse, nor either of them, were entitled to an abatement of the purchase money as prayed for in their answer; ascertained the amounts due the plaintiff and petitioner Leonard; declared them a lien upon said 135acre tract; and directed a sale of same to satisfy said liens.

From this decree the defendants obtained this appeal, claiming first that "the court erred in refusing to allow a credit on the said $100 note for the small tract of land, containing four acres, conveyed by deed from S. H. Smith to N. Sprouse." This assignment of error raises a question of fact, the solution of which depends upon the testimony in the cause, which, on examination, is found to be conflicting, so much so, indeed, that it is difficult to determine whether said four acres were or were not included within the descrip

tive calls of the deed from Smith to Sprouse. The circuit court, however, upon an examination of the testimony, and, as we must presume, a close acquaintance with the witness, has found that the deed made by S. H. Smith and wife to said N. Sprouse does not, by the calls thereof, include the tract of land conveyed by Smith to Hylbert, and known as the "Four-Acre Tract." The rule in cases of this character is asserted in Smith v. Yoke, 27 W. Va. 639 (Syl., point 1), as follows: "Where the decree sought to be reversed is based upon depositions which are so conflicting, and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree, if it had acted upon the cause in the first instance," which ruling has been followed in Bartlett v. Cleavenger, 35 W. Va. 720, 14 S. E. 277, and Richardson v. Ralphsnyder, 40 W. Va. 15, 20 S. E. 854, and must control us in this case upon the assignment of error.

The second assignment of error claims that the court erred in directing that said deed from Smith to Sprouse should be reformed and corrected so as to exclude the small tract formerly conveyed by said Smith to Hylbert. This assignment must have been made, however, under some misapprehension, as the decree of the court, as I read it, does not direct that said deed should be reformed and corrected so as to exclude said tract, but holds that said deed, by the calls thereof, does not include said small tract of land conveyed to Hylbert.

The third assignment of error is claimed to be in decreeing that the deed from N. Sprouse to Susan Conrad, dated March 3, 1881, as also the one from Susan Conrad to petitioner, made September 6, 1882, was fraudulent in fact, and therefore null and void. If this assignment properly quoted the decree, it would be error, as said deeds would be good between the parties; but a reference to the decree shows that said deeds were held fraudulent so far as the claims of plaintiff and petitioner Leonard, as therein ascertained and decreed to them, as well as the costs therein decreed, were affected thereby. I am further of opinion that the circumstances and badges of fraud disclosed by the evidence fully warranted the court in holding said conveyance to have been fraudulent as to the antecedent creditors of N. Sprouse. The relationship of the parties, the retention of possession of the property by the grantor, and the failure to show that the property was paid for by the wife out of her own money, all strongly support this conclusion.

Fourth, it is claimed that the court erred in not referring the cause to a commissioner, to ascertain and report the liens attaching to

said real estate, together with the order of their priority, after having held the said deeds were fraudulent in fact, and that said land was liable to the debts of Nicholas Sprouse. This was unnecessary, for the reason that the bill in this cause was filed for the purpose of assailing a fraudulent conveyance, and was successful. This court held in Sweeny v. Refining Co., 30 W. Va. 443, 4 S. E. 431, that "general creditors, who, by bill, answers, or petition, assail a deed of their debtor conveying land, as fraudulent, and succeed, have a lien on the land for their respective debts from the filing of such bill, answer, or petition." This, it will be seen, would enable the court to ascertain the priorities; and the court surely has the right to ascertain the amount, including interest to the date of the decree. Again, one of the objects of this bill was to enforce a vendor's lien for the purchase money, which was fixed by the face of the deed, and the only credit claimed was an abatement on account of deficiency in the quantity of the land, which the court found did not exist; and I hold there was no necessity for referring the case to a commissioner, and, in my view of the case, no reference was necessary. It is further claimed that the court erred in entering any decree in the case of the amended bill without making William Templeton a party, it appearing that he had become interested by purchasing the land in controversy. We must hold, however, that said Templeton, being a pendente lite purchaser, took the land, if he purchased it at all, subject to the result of the litigation then pending, and he was not a necessary party. As to the petition filed by D. H. Leonard, it appears that no process was awarded thereon, although the case was remanded to rules for that purpose. Neither does it appear that said Louisiana Sprouse filed any answer to said petition. Nicholas Sprouse, however, did file his answer, putting in issue the allegations thereof. I therefore hold that the circuit court erred in subjecting said land to the payment of said D. H. Leonard's judgment. The court also erred in subjecting said tract of land to the payment of the judgment for costs, amounting to $138.21, against the de fendant Sprouse, for the reason that said deed was attacked, as being voluntary, on the 10th of February, 1891, the judgment for costs was obtained March 29, 1890, and the deed was made by Susan Conrad to Louisiana Sprouse September 6, 1882, and admitted to record on August 2, 1883; and section 14 of chapter 104 of the Code provides that "no gift, conveyance, assignment, transfer or charge, which is not on consideration deemed valuable in law shall be avoided either in whole or in part for that cause only, unless within five years after it is made suit be brought for that purpose," etc. I therefore reverse the decree complained of, so far as it holds the deeds complained of to be fraudulent in fact, and made for the purpose of hindering, delaying, and defrauding the creditors of Nicholas Sprouse, and af

firm the same so far as it holds said tract of land liable to the payment of the purchasemoney note, found in the decree to be $95.32, and subjects the same to the payment thereof, with costs to the appellant.

(46 W. Va. 163)

JUSTICE et al. v. LAWSON et al. (Supreme Court of Appeals of West Virginia. April 1, 1899.)

PARTITION

EVIDENCE TENANTS IN COMMON
ADVERSE POSSESSION.

1. A voluntary partition, not evidenced by writing, in order to defeat a right to such partition under the law, must be clearly proven, and must be followed by actual possession in severalty of the several parcels, pursuant to such voluntary partition. Patterson v. Mar

tin, 10 S. E. 817, 33 W. Va. 494.

2. A tenant in common, out of possession, has a right to rely upon the possession of his co-tenant, as one held according to the title, and for the benefit of all interested, until some action is taken by the other evidencing an intention to assert adverse and hostile claims.

3. One tenant in common may oust his cotenant, and hold in severalty, but a silent possession, unaccompanied with any action amounting to an ouster, or giving notice to the cotenant that his possession is adverse, cannot be construed into an adverse possession.

4. It is the intention of the tenant or parcener in possession to hold the common property in severalty, and exclusively as his own, with notice or knowledge to his co-tenants of such intention that constitutes the disseisin.

(Syllabus by the Court.)

Appeal from circuit court, Logan county; Thomas H. Harvey, Judge.

Bill by John Justice and others against R. B. Lawson and others. A decree was rendered, from which defendants appeal. Affirmed. H. K. Shumate, for appellants. Vinson & Thompson, for appellees.

MCWHORTER, J. Peter Dingess, Sr., a resident of Logan county, died intestate about the year 1829, leaving surviving him nine children, heirs at law,-John Dingess, Guy Dingess, Charles Dingess, William A. Dingess, Polly Dingess, who intermarried with Lewis Lawson, Matilda Dingess, who intermarried with James Lawson, Yantes Dingess, who intermarried with Charles A. Smoot, Minerva Dingess, who intermarried with W. W. MacDonald, Harriet Dingess, who intermarried with John Justice. Said Peter died seised and possessed of numerous tracts of land in his county, including a tract of 140 acres, which he held by grant from the commonwealth, dated 26th September, 1827, which tract is situate on Main Laurel Fork of Twelve Pole creek. About the year 1842, William A. Dingess, one of the nine children of the said Peter, went upon the tract, built himself a house, and made other improvements on it, and continued to live upon it until about the year 1888. No formal partition was ever made of the lands left by Peter among his said children. On the 19th day of July, 1859, said William A. Dingess con

veyed said tract of 140 acres, with two other small tracts, to James A. Nighbert, in trust to secure a debt therein mentioned of $1,402.59 to Anthony Lawson. Afterwards, on the 28th of April, 1880, William A. Dingess executed another deed of trust to the same trustee on the same tracts and also another tract of 130 acres of land, to secure to Anthony Lawson a note for $2,000; and afterwards, in 1885, said trustee sold said tract of 140 acres of land under said last-mentioned deed of trust, and the same was purchased by Robert M. Lawson, the executor of said Anthony Lawson, at the price of $800. On the 19th day of August, 1846, a deed was prepared mentioning John Dingess, Jr., and Sarah, his wife, Guy Dingess, and Rebecca, his wife, Charles A. Smoot, and Juliantes, his wife, Lewis B. Lawson, and Polly, his wife, James Lawson, and Matilda, his wife, Minerva A. Dingess, Harriet Dingess, and Charles F. Dingess as grantors, and conveying said tract of 140 acres to William A. Dingess. This deed was signed and acknowledged only by James Lawson, Guy Dingess, C. A. Smoot, and John Dingess, and, as to them, recorded. At rules held in the clerk's office of the circuit court of Logan county on the first Monday in September, 1891, Allen Dingess, John Justice, James A. Justice, Charles Justice, Sarah McDonald, Mary Mullins, Mary Perry, Guy Lawson, Anthony Lawson, Jr., Emily Lawson, May Belle Lawson, and Edward Lawson, the last two infants, suing by Emily Lawson, their next friend,-plaintiffs, filed their bill in chancery against R. B. Lawson and others for the purpose of partitioning among the heirs at law and those entitled thereto the said tract of 140 acres of land, alleging that to divide the said tract into nine parts would greatly injure the value of it, and praying that the same be sold, and the proceeds distributed to the parties entitled thereto, or for partition if it could be conveniently made, and for general relief. The bill sets up the said deed of August 19, 1846, as conveying to W. A. Dingess the one-ninth interest of each John Dingess and Guy Dingess; also the trust deed of April 28, 1880, given on said tract to James A. Nighbert, trustee, to secure a debt to Anthony Lawson, and alleging the sale by Nighbert under said deed of trust of three-ninths thereof, and the purchase by Anthony Lawson; that said William A. Dingess only owned one-ninth in his own right as heir at law of his father, and the two-ninths by purchase from his brothers John and Guy; and that by said deed of trust he only conveyed the said three-ninths to Nighbert, trustee, he having no authority, either express or implied, to convey the six-ninths which was owned by the other brothers and sisters; and charging that Anthony Lawson had died, leaving, surviving him, R. B. Lawson, Robert Lawson, Roxalina Y. Cooper, wife of William Cooper, and Elizabeth Leahman, who are entitled to the said undivided threeninths of said tract of land by virtue of the