Boschong Subscribers, Back in May 2007 we posted about Daniel Bushong and his son O. M. Bushong so check the BOSCHONG Archives to refresh your memory. We found this Supreme Court of Appeals Decision concerning them and thought it was worth sharing. We are only giving a small portion of the whole bill as it is long and they refer to other court cases to make their point. ------------------ The Southeastern Reporter Volume 9 Pages 225 & 228 BUSHONG VS RECTOR Supreme Court of Appeals of West Virginia 4 March 1889 HUSBAND AND WIFE - EJECTMENT - EQUITY 1. A wife living with her husband on land, and claiming the land as her separate estate, under a right derived from a person other than her husband, prior to commencement of the action, cannot be turned out of possession by a writ of possession in an action of ejectment against her husband to which she was not a party. In such case she is as to her claim, a person distinct from her husband, and must be made a party to the action, like any other person in order to bind her by the judgement. 2. In such case equity has jurisdiction by injunction to restrain the execution of the writ of possession as to her. the parties will be left without prejudice from the decree to test their titles at law. Appeal from Circuit Court, Wood County. R. Hehr Smith fro appellant. John A. Hutchinson for appellees. Brannon, J. In July, 1882, Enoch Rector brought an action of ejectment in the Circuit Court of Wood County against Daniel Bushong and O. M. Bushong, for 100 acres and 31 poles of land, and in November, 1883, recovered judgment and issued a writ of possession, when Elizabeth Bushong obtained an injunction against the enforcement of the wit as to her. Rector answered the bill, denying plaintiff's right and depositions of numerous witnesses were taken, and the court dissolved the injunction and dismissed the bill, reserving right to Elizabeth Bushong to defend or prosecute any right or claim she might have relative to the land in any proceeding at law. The record shows that by Deed of 21 May 1880, one Peter Curry conveyed the land to Elizabeth Bushong, who is the wife of O. M. Bushong, which Deed was recorded 3 June 1881, and it also shows a Deed dated 16 February 1874, recorded 25 April 1882, from Daniel Bushong to Rector. Daniel Bushong was in possession, though not under any title so far as appears, eight years before he made the Deed to Rector, in 1874. The land belonged to an oil company which suspended operations and abandoned the land, and Bushong simply took possession of it as if without an owner. Rector was owned of $2000 stock in the oil company, and set up a claim to the land on that account, and sought possession in order to thereby obtain title, as he says. Upon his conveyance to Rector, Daniel Bushong took a lease for one year in writing from Rector, and continued in possession under a verbal arrangement afterwards. He was to pay taxes, and did so for five years, (1867-1871), and handed over to Rector the tax receipts, which he files in the name of J. S. Hoffman for part of the time, and Imperial and Kanawha Oil Company for part of the time. O. M. Bushong is a son of Daniel, and was living with his father on the land when he married the plaintiff, Elizabeth Bushong and he states that he and his wife lived there from 1869. He states that Daniel turned over the possession to his wife and himself in 1870, in consideration that they were to support Daniel and his wife. Elizabeth Bushong in one deposition states that she had been in possession since 1870, and, when asked who put her in possession, answered that Daniel Bushong did, under agreement by her to keep him and his wife; and in another deposition stated that Peter Curry put her in possession, and also that Daniel Bushong put her in possession, in consideration that she would keep him and his wife during life, and that under that agreement she had kept Daniel until his death, and was still keeping his wife. The evidence shows that O. M. Bushong, recognized himself as a tenant of Rector, and then he sued. Elizabeth Bushong appeals here for relief against the decree of the Circuit Court. The plaintiff complains that she is to be turned out of house and home by a writ of possession upon a judgement in ejectment to which she was not a party. SKIPPED The decree of the circuit court is reversed and the injunction as prayed for in the bill is to be perpetuated, with costs to Elizabeth Bushong in both courts, without prejudice from this decree to the parties from asserting any title to the land they may have in any other suit. ---------------------------- Researched, Copied and Submitted by Gloria Bushong