7 W. Va. 390 | W. Va. | 1874
Dickinson, 'be complainant, filed bis bill in 1870, against William P. Rucker, and the Chesapeake and Ohio Railroad Company, in the circuit court of the county of Greenbrier, in which he alleges that at the November term, 1869, of the district court of the United States, held at Kanawha Court House, in this State, he recovered a judgment against Rucker, now of Greenbrier county, for $1,717.38, with interest as stated in the bill, subject to a small credit, and the costs of the suit. He professes to file with his bill, a copy of the judgment marked No. 1; that upon the judgment execution issued, and was returned by the Marshal mdla bona, and the whole remains unpaid; that at the time of the judgment, Rucker was the legal owner of various tracts of land in the Bend of Gauley river, Nicholas county, on which he then resided, all adjoining each other, and
Rucker, in his answer, says, that at the dale of the judgment rendered against him, in the bill mentioned, he was not, nor is he now, either the legal or equitable owner, of the lands in the bill referred to, nor is he entitled to any of the proceeds arising from the sale there-; of; that on the 20th of June, 1868, he entered into a
In May, 1871, Dickinson filed an amended bill in the cause, and made Rucker, and his wife Margaret, Cyrus
On the 25th day of November, 1871, the Chesapeake and Ohio Railroad Company filed its answer to the original and amended bills. The early part of the answer contains a general demurrer to the bill and amended bill. In the answer the Railroad Company substantially states, and alleges, that it has no knowledge of the property or business of Rucker, or of any of the arrangements, or dispositions alleged to have been made by him in respect to the conveyance or settlement thereof, except as to the contract, arid conveyauce purporting to have been made by Rucker with it; that it knows nothing of the judgment claimed by Dickinson against Rucker, or if its consideration or validity or of the steps taken, or proceedings had for its inforcement; that so for as any of the allegations of the bills are relied upon to affect its rights or interests or as the foundation of any decree ill the cause, it controverts them all, and calls for proof of each allegation, except so far as the same is expressly admitted to be true; that' it admits that a contract was made between Rucker and it, dated June 20, 1868, a copy of which is filed with Rucker’s answer to the original bill; that it knows nothing of the motives or purposes of Rucker, as affecting the rights of his creditors, in the making of the contract ; nor does it know anything of the consideration upon which the issue of the stock, provided for by the contract, was directed to be made to Bryan, in trust for Rucker’s wife ; that if it has been made a party to a contract, having for its purpose a fraud upon creditors, it was done without any knowledge on its part of such purpose; that it has thus far declined to carry into effect the contract of June 20, 1868, having been engaged in investigations in relation to the revoking of the same — the valuation purporting to have been made under it, the survey alleged to have been made for ascertaining the quantity of land, and the title of Rucker to the lands; that pending the investí-
Rucker, in his answer to the amended bill refers to his answer to the original bill, and prays that it may be read as part of this answer. And he alleges that the deed of trust to Bryan of the 18th of December, 1868, was a fair and bona fide transaction; that the conveyance was made not only upon a valuable consideration, but also for an adequate consideration, and that the entire property, therein embraced, has long since been sold by the said trustee, and the proceeds applied to the payment of the claims of the creditors therein, and thereby, secured, and that all these transactions were had, and made, long before the recovery of Dickinson’s judgnient; that the settlement made upon his wife, in the contract with the Chesapeake and Ohio Railroad Company, was in consideration of a debt of some $4,750, morally and legally due from him to his wife; and in the further consideration that she would relinquish her dower right and interest in the lands sold by him to the Company, as appears by a contract or deed entered into with his wife, and her trustee, Bryan, on the 27th ofMay, 1868, a copy of which is filed with the answer as exhibit (A.); that his wife, in consideration of the settlement, did, afterwrards, relinquish her dower interest in the lands; that he denies that he bought or paid for the house and lot conveyed by Hoover and others, to his wife, exceptas agent only of his wife, and with her property and funds. He denies that any of the contracts and deeds referred to in the bills are voluntary or fraudulent. He 'denies that the contract with the Railroad Company is void for want of recordation, or for any other reason, and he, by wav of conclusion, denies all of the allegations of law ■ or fact, in complainant’s bill contained, not beforedenied.
Mrs. Rucker and Bryan failed to answer the amended Bill.
It appears, from the certificates of the Recorders of
The Railroad Company, in pursuance of said decree, filed its cross-bill in 'the cause, against Dickinson, Rucker and wife, and Bryan, in which the main part of the decree is recited. In the cross-bill' it is alleged by the Railroad Company, that it was formed by and organized under a contract made August 31, 1868, between commissioners, of Virginia and West Virginia, with the Virginia Central Railroad Company, which
To the cross-bill, Dickinson, Mrs. Rucker, Bryan, and Rucker filed their separate answers. Dickinson, in his answer, says he knows nothing of the fraud, misrepresentations or mistakes referred to in the cross-bill, which are alleged to have been used to procure the contract between the Railroad Company and Rucker and he calls for proof, and he says he can neither confess nor deny the same.
Mrs. Rucker, in her answer, is brief, and says she admits the contract of 20th of the June, 1868, between the Company and her husband. She denies all fraud and collusion in the procurement of the contract, and insists that the Company should be held to a full compliance with its engagement.
Bryan, in his answer, also admits the contract, and avers that there is no ground for its recission, and in other respects is about the same as that of Mrs. Rucker.
Rucker, in his answer, admits the contract entered into by him and the Company, through J. A. Alderson, its duly authorized agent, and avers that he has substantially complied with its terms. He says it is true the surveyor reports that he has found, “by calculation,” that the “Bend of Gauley” contains one thousand eight hundred and sixty-six acres; but, as he was informed, the calculation was not a mere speculative one as plaintiff assumes, but a calculation based upon an actual survey, made by the surveyor, and one which, if incorrect, falls short of the quantity the farm contains ; that he is informed and charges that, since the sale actual and survey has been made of the “Bend of Gauley,” farm by an engineer of the Company, employed for the purpose by the Company, and that his report shows no deficiency, whatever ; that the contract does not stipulate that the surveyor should
On the 26th of April, 1872, the causes were heard together, the original cause upon the papers formerly read, and the cross-bill cause upon the 'bill, answers of the defendants thereto, replications to the answers, exhibits, depositions, &c: And the court decreed that the application for a recission of the contract, upon the ground of fraud, be rejected and disallowed, and the prayer of the cross-bill, as to that ground, be dismissed. The court in its decree further provided, “And it appearing to the court.that these lands were sold by the acre, and not by the tract, which renders it material that before final decree is rendered the quantity thereof, should be accurately ascertained, by a competent surveyor, the one party contending that the several tracts of land in the “Bend of Gauley” constitute a tract of 1,866 acres, and the other party that said tracts contain only 1,3791-acres or 1,293J acres, the court is therefore of opinion that until an accurate survey is made the smallest quantity may be safely adopted by the court, not, however, to the prejudice of either party, when the quantity is accurately ascertained; and it appearing that when the 250 acres are added to the above quantity of 1,293J acres-they make an aggregate quantity of 1,543^ acres, and the said 1,293J acres having been sold at the price of $16.50-cents per acre, and the tract of 250 acres at $3.00 per acre they make an aggregate sum of $22,093, for which the defendant Sucker, his assignee or creditors, are en-
First. It is insisted by the appellant, that exhibit No. one, filed with the original bill, is not legal or proper evidence ot the alleged judgment, as against it; and the judgment and debt in the original and amended bills mentioned, being controverted by its answer, that it was error in the circuit court, in the absence of other sufficient proof of the alleged judgment, to decree against it the execution of the contract.
It is true there is no evidence or proof of the alleged judgment or debt against Rucker taken or filed in the cause except exhibit No. one, which I have given in full. Rucker in his answers does not deny the existence of the debt and judgment, as alleged in the original and amended bills, and they are taken for confessed, as to Mrs. Rucker and Bryan. Although it is provided by chapter one hundred and twenty-five, section thirty-six of the Code of this State, that “every material allegation of the bill, not controverted by answer, shall, for the purposes of the suit, be taken as true, and no proof thereof shall be required,” the allegations in Dickinson’s bills, as to his debt, and judgment, must be taken as true, against Rucker, and the other defendants, who failed to controvert them; still, as the appellant, in its answer, does controvert the existence of the debt and judgment, the allegations in relation thereto cannot be taken as true against it, but must, in this case, he. established by competent and proper evidence, especially as Dickinson’s right to a decree in the cause against the appellant, under and by virtue of the contract, or for any cause, alleged in the bill, is controverted in the appellant’s answer.
Green., on Ev., vol. 1, page 638, sec. 501 says : “As to proof of records, this is done either by the production of the records, without more, or by a copy. Copies of records are, (1) exemplifications; (2) copies made by an authorized officer; (3) sworn copies. Exemplifications,
In the cases last cited it was held, that extracts from the record might be read as evidence in those cases, but the extracts were copies, of several separate orders and decrees, and nob mere abstracts thereof; or, in other words, not the opinion of the clerk as to the substance or effect of the orders or decrees. If exhibit No. 1 was a copy of the judgment as entered, it would be an extract from the record of the cause, and not a complete copy of the whole record, and, being an extract from the
The District Court of the United States, and also the Circuit Court thereof, held within this State, are in many respects domestic courts. These courts administer the laws of the United States in the several states; but they administer also the laws of each state, and follow, to a very great extent, the systems of judicature of each, in their respective districts ; pursuing, in most cases, their practice, and deferring to their decisions ; binding lands by their judgments, and issuing process to every part of their jurisdiction, without pretention, generally, of power to act upon the people or the territory, of another state. And in the execution of these duties, some are engaged in untangling the complicated system of land laws, altogether peculiar to one state; some look for the lights of legal science to the common laiv, while others draw their principles from the fountain of the Institutes, or the pages of the Code Civile. Opinion of Tucker, judge in Draper’s Exors. v. Gorman, 8 Leigh. 647. It is obvious, however, that the circuit or district courts of the United States, of Ohio or New York can not be considered as domestic courts in our State tribunals. Judge Tucker, in same case, on same page, says : “Admitting that the
Second, It is objected by the appellant that the decree of April 26th, 1872, is erroneous in directing the Railroad Company to issue $22.093 of its stock, guaranteed to pay eight per cent thereon, so soon as its railroad is in running order through to the Ohio River.
The contract specifies that the price of the land shall be paid in eight per cent preferred stock of the Chesapeake and Ohio Railroad Company, at its par value, and the Company is not thereby required to guarantee the payment of eight per cent thereon. This objection is well taken and must be sustained.
In the decree the court undertakes to ascertain the amount of purchase money due Foster and to provide for its payment out of the sale of the stock, and the amount, so ascertained, is less than the amount of purchase money stated to be in arrear in the contract. How the court ascertained that there was $169.50 due Foster, with its interest, from the evidence in the cause, I am unable to understand. Fucker says in his answer that he has paid off the purchase money incumbrance, mentioned in the contract, except $160.50, with two years interest thereon, but there is no evidence of this in the cause. The statement in the answer, under the circumstances, is not evidence or proof of the fact, and the answer does not even state to whom the amount is due. The party to whom the purchase money is in arrear,not being before the court, he is not bound by the decree. The amount of purchase money in arrear is controverted by the pleadings, and as it is clear that the appellant might be prejudiced and injured by the decree, in this respect this objection is well taken and must be sustained.
Fourth. It is further objected by the appellant that the contract was procured by fraudulent misrepresentation, and that the court erred in enforcing the valuation or award of Brown, Grose and Copenhaver, fixing the value per acre, of the “Bend of Gauloy” farm, upon the ground of the fraud, and that the Company, or its agent, did not have notice of the time or place on, or at, which the valuers Avould proceed to ascertain the value per acre of this large tract, and was not present or represented at the valuation, though Fucker was, so far, at least, as to write the certificate or award of valuation. And álso
The contract recites, “That the said "Wm. P. Rucker has this day sold to the said Chesapeake and Ohio Railroad Company the following tracts of land lying in the counties of Nicholas and Clay, and State of West Virginia, viz: One tract lying in the “Bend of Gauley,” in Nicholas county and State of West Virginia, containing two thousand acres, more or less, the exact number of acres to be ascertained by the county surveyor, at the earliest day practicable, and certified by him on the back of this agreement; the title and description of which tract of land are as hereinafter stated, at so much per acre as may be determined by Messrs. George Brown, Samuel J. Grose and Joseph Copenhaver, being disinterested and responsible land owners, in the said county, the price per acre to be certified by them on the back of this agreement, to be paid for in the eight per cent preferred stock of the said Chesapeake and Ohio Railroad Company, at its par value. The certificates of stock to be issued in three months next ensuing. The title to the land clear, and in no way cncumbred, except there are some $300 due, back money, on the “Bend of Gauley” plantation.” These are the provisions of the contract, and it is under seal. It is not pretended that' the Company, or its agent, had any previous notice, or knowledge, of the time or place the valuers would proceed to make the valuation or award of valuation ; nor does it appear that the Company or its agent was informed or
It does not distinctly appear whether Rucker was present with the valuers during their consultation, but I
First, that they had carefully examined Dr. Wm. P. Rucker’s “Bend of Gauley” plantation, in accordance with the provisions of the agreement referring the matter to them, when from their evidence they had made no examination of the plantation after the contract; and,
Second, that the tract of land is worth $16.50 per acre, when, according to their evidence, they did not determine the cash or money value of the land, but determined as I have before stated. It would be difficult to construe the certificate or award upon its face otherwise, than that the valuers had carefully examined the land after the matter had been referred t'o them, by the contract or agreement, and had determined the land to be worth $16.50 per acre, in money. Whether the award was written in the language it is, by mere accident or for a fraudulent purpose, it was certainly deceptive upon its face and tended strongly to mislead and deceive the ■Company or its agent. Alderson seems to have known the arbitrators, and to have reposed confidence in them, .and it was not unlikely that he might accept the award ■as true and fair for the Company, as its agent, without .suspecting any wrong or fraud.
It does not appear, by evidence other than the valuers
The certificate of valuation can not be considered as more solemn, more conclusive, or binding upon the parties, than an ordinary award. It is but an award, and the referees cannot, upon principle, be considered otherwise than as arbitrators. Chancellor Kent, in his very lucid and able opinion in the case of Underhill v. Van Cortlandt, 2 Johns., Ch. (N. Y.) 339, holds and treats such a reference as a submission to arbitration, and the determination or decision as an award. In further considering this subject I shall treat and consider the valuers as arbitrators and their certificate as an award. “The decision by arbitration is the decision of a tribunal of the party’s own choice and election. It is a popular, cheap, convenient and domestic mode of trial, which the courts have always regarded with liberal indulgence; they have never exacted from these unlettered tribunals, this rusti-own forum, the observance of techninal rule and formality. They have only looked to see if the proceedings were honestly and fairly conducted, and if that appeared to be the case, they have uniformly and universally refused to interfere with the judgment of the arbitrators.” See opinion of chancellor Kent in same case. While this is true, courts, especially courts of equity, it is well settled, Avill in proper cases look into and examine the proceedings of arbitrators to a certain extent and if it is found in conformity with the established rules, that in any given case the arbitrators have been guilty of corruption or fraud, partiality, misconduct or gross or palpable mis-
It is settled, by the authorities, that a court of equity will, and should, set aside and annul an award for fraud or imposition on the part of the party attempting to set up an award, by means of which the arbitrators were deceived. In such case, the result is not the deliberate and fair judgment of the judges chosen by the parties. It may be a true judgment, upon a case falsely imposed on them by the fraud or imposition of the party. See case of The Boston Water Power Co., v. Gray, 6 Metcalf, (Mass.,) 131, and the case of Underhill v. Van Cortlandt, 2 Johns. Ch., (N. Y.,) 339; Caldwell on Arbitration, 170, 171, 172, and cases there cited.
A party to an award cannot come to have it set aside upon the simple ground of an erroneous judgment,— there must be something more — such as above stated. Caldwell on Arbitration, 158, 159, and the numerous cases cited iu note one, and the cases hereinbefore cited. In the case of Jenkins v. Liston, 13 Gratt., 535, it was held, that “arbitrators having received a paper, without the knowledge or consent of one of the parties to the arbitration, -though they say that their opinions were formed before it was received, their award is void.”
There seems to be some difference of opinion as to whether a court of equity will, or ought to regard the proceeding by arbitrators, to consider a matter referred to them, and making an award thereon in the absence of a party, and without notice to such party of the time or
From the weight of authority upon the subject, and from such reflection as I have been able to exercise, my mind has been brought to the conclusion, that sound principles, justice, and a due regard for the proper administration thereof among men, by arbitration, require ordinarily, though, perhaps not, universally, in equity, that an award made by arbitrators in the absence of parties to the submission, who are materially interested, upon matters submitted for their determination, without previous notice to such parties, or their authorized agents or attorne3rs, of the time and place of meeting, may be set aside in equity, ordinarily, if objected to by a party to the submission, materially interested, not having such notice and being absent, provided, such party has not dispensed with or waived notice or the like.
It is argued, however, that the persons chosen in the case were the agents of the parties, and their acts under the submission are binding upon them without notice. I cannot regard them as simple agents of the parties. They were chosen, not as agents, but as men, indifferent between the parties, to judge and decide fairly, justly and impartially upon the matter submitted to them. Each party was entitled to be heard by and before the arbitrators upon every point involved in the case, or which might or did enter into their consideration before- or at the time of their decision. How can parties obtain a hearing if, they claim one, before arbitrators, unless they are notified of the time and place when they may be heard by them ? "When a question is submitted to arbitration, the arbitrators selected are the court appointed by the parties for the purpose of determining the
The award in this case, is obnoxious to the following objections. First. The award was made in the absence of the appellant, its agent or attorney, and without notice to it, its agent or attorney of the time and place of the meeting of the arbitrators to consider and award upon the subject referred to them for determination. It not appearing that the appellant, its agent or attorney, dispensed with or waived notice or' the like. Second. The description of the land, &c., contained in the contract, which was made by Rucker and is a part of' the contract, was before the arbitrators, and the description being false and fraudulent in material particulars and the arbitrators in making their award in the absence of the Company, its agent or attorney; having acted upon the description as being true, and were evidently- influenced thereby in making their award. The award must therefore be regarded as having been procured by fraud and imposition and for that reason is not valid or binding upon the Company. Third. Thoughthé simple fact that Rucker
I think the court beloAV properly disregarded the award of the surveyor as to the quantity of acres in the “Bend of Gauley” tract, for the reason that his determination of quantity Avas not derived from actual survey made from the title' papers, but from calculations made from data not altogether obtained from the title papers, but in part at least from instructions given by Rucker, some of which the surveyor says he did not know to be correct and some Avere not correct. For instance the surveyor ' says that he included in his estimate one half of the bed
The description of the two hundred and fifty acre tract on the waters of Buck’s garden, &c., in the contract mentioned, is a misrepresentation in material particulars, as clearly appears from the evidence of surveyor Robinson, Cowan and others. The agent of' the Company signed the contract relying upon the representations of Rucker as before stated.
There is no evidence filed in the cause tending to' show whether the representations made of the one hundred and seventy-five acre tract in Clay county, were true or false.
Five hundred and sixteen aci'es of the the “Bend of Gauley” tract conveyed to Rucker by David R. Hamilton by the deed made the 6fch of August, 1865, was at the date of the contract, and still is, encumbered with the contingent dower interest of Hamilton’s wife. This encumbrance, from the evidence, was known to Rucker at the date of the contract. Still he represents, and in fact undertake.?, in and by the contract, that the title to this tract is clear and in no way incumbered. Rucker admits in his answer that he has but an undivided interest in twenty-five acres of the “Bend of Gauley” tract but ■does not state the ¡¿mount of the -interest nor in what
The paper filed with the record purporting to be a; deed from O. S. Jones and wife, dated 5th of October, 1865, for thirty acres of land, is not a deed, because not made under seal. These two deeds do not pass to Ruck-er the legal title, but only an equitable title. The legal title appears to be outstanding. The paper writing from Jeremiah Nutter to Rucker for one hundred and seventy-two acres of “Bend of Gauley” farm which was acknowledged the 3rd of May, 1869, and was admitted to record May 11th, 1869, does not seem, from the record before me, to have been acknowledged according to law, at least as to the wife. The certificate of acknowledgement to this deed is not sufficient to bar the wife of dower, as it is not substantially in conformity with the form prescribed by law. The tract of one hundred and seventy-five acres in Clay county, it appears, was sold by the Sheriff of that county, in the year 1869, for the taxes of 1868, charged on the same, against Rucker; and one James M. Welch, became the purchaser, at the sale, and the land not being redeemed within the time prescribed by law, the Recorder of Clay county made a deed to the purchaser for the land on the 6th of January, 1871. The taxes for the year 1868 were charged againt Rucker, for this tract, and constituted alien thereon, before, and at the date of the contract of sale, and of the alleged deed of Rucker and wife. Rucker contracted to make a' deed of general warranty to the Company. It was
It does not appear that the Company ever took actual possession of any part of either tract of land in the contract mentioned, or ever exercised any ownership or control over any or either of them. By the contract the “Bend of Gaulcy” farm was to remain in the possession of Rucker until the 1st of January, 1872. “Fraud avoids a contract, ab initio, both at law and in equity, whether the object be to deceive the public, or one party endeavor thereby to cheat the other. For the law will not sanction dishonest views and practice's, by enabling an individual to acquire through the medium of his deception, any right or interest.” “Fraud invalidates every transaction, as well at law as in equity.” Chitty on Contracts, 8 Am. ed. 586, and note 1. Same author, 589 says : “But if a party, for a fraudulent purpose, states a fact which is untrue, and without knowing it to be. true and he does not, at the time, believe it to be true, this is both a legal and a moral fraud. And when the representation, expressly or impliedly, forms part of the contract
It is maintained however, by the counsel of appellees that the Company by its authorized agent, John A. Hamilton accepted the deed from Rucker and wife, long after the contract, and award were made, and allowed, and permitted the stock contracted for in the contract, to be represented at the meetings of the stock holders without ob-
Under these circumstances it would be unjust and unauthorized, to hold that the Company had accepted the deed to the deed because Hamilton delivered the deed to the Beeorders of Nicholas and Clay counties as directed by Bucker. I think it is clear that in doing as he did, in this respect, he was acting under the direction and authority of Bucker, and not of the Company. According to the most liberal construction of his evidence he was only authorized to receive deeds upon such contracts as had been approved by the Company. He did not make this contract, and so far as appears, he knew nothing of its import, or anything touching the action or proceedings of the arbitrators or surveyor. It does^iot appear that he ever saw or examined any of the lands in
There is no proof of the allegation that the stock in question ivas represented in the general meetings of the stockholders of the Company, that I have been able to find in the record outside of Rucker’s allegation.
If the contract and award were not obnoxious to- fraud, &c., and it were proper to enforce them as against the Company, still, under the provisions of the first and second sections of chapter one hundred and eighteen of' the code of Virginia, of 1860, which were in force in this State at the .date of the contract, &c., as well as the first and second sections of chapter seventy-four of the code of this State, which took effect the first of April, 1869, and the principles settled in the cases of Chamberlayne v. Temple, 2 Rand, 384; Garland v. Rives, 4. Rand, 282, 310; Hutchison v. Kelly, 1 Rob., (Va.) 123; Hunters v. Waite, 3 Gratt., 26, the provision or settlement contained in the contract for the benefit of Rucker’s wife would be held fraudulent and void. As to the plaintiff Dickinson’s debt, except perhaps as to so much thereof as would be a just equivalant for the right of dower relin
It must be taken in this case, under the pleadings, and evidence as against Rucker, his wife and Bryan, that, though Dickinson’s judgment was obtained after the contract, and the date of the deed of Rucker and wife, his debt for which the judgment was rendered, existed before, and at the time the contract was made. But, if the contract and award were good, and also the deed of Rucker and wife, to the Company, then I apprehend the judgment would not be a lien upon any part of the stock to be issued, as a judgment is only a lien upon real estate. In as much as the contract, so far as it settled the stock upon Mrs. Rucker, is fraudulent and void as to Dickinson’s debt, to the extent I have stated, to that extent, the stock would be liable to Dickinson’s debt, even though there had been no judgment or execution thereon. Code of 1860, chap. 179, sec. 2, and Code of W. Va., chap. 133, sec. 2. But the contract never was recorded, nor the deed accepted by the Company in my judgment, as hereinbefore stated.
If the contract of sale to the Company, and the deed of Rucker and wife to the Company are set aside, and annulled, as they must be, for the reasons herein stated,
For these reasons the decree rendered by the Circuit Court of Greenbrier county, in these causes, on the 26th day of April, 1872, must be reversed and annulled, and the appellant recover against the appellee, "William P. Rucker, its costs about the prosecution of its appeal, in this Court, expended.
The decree entered in this case was as follows: And this Court, proceeding to render such decree as the said Circuit Court should have rendered in said causes, it is adjudged ordered and decreed that the contract of sale of the lands in the original and cross-bills, in these causes, mentioned, bearing date the 20th day of June, 1868, between the defendant, William P. Rucker, and the Chesapeake and Ohio Railroad Company, and executed by the said William P. Rucker, for himself, and J. A. Alderson, agent for the appellant, and the award or valuation, of George Brown, S. J. Grose, and Joseph Copenhaver, fixing the value of the “Bend of Gauley” farm at $16.50 per acre, and dated the 6th day of July, 1.868, in said bills mentioned, and the certificate or award of J. Haymond Robinson, surveyor of Nicholas county, dated August the 3d, 1868, and in said bills mentioned,
First. A tract of eighteen hundred and sixty-six acres, lying in the “Bend of Gauley” river, in Nicholas county, West Virginia, adjoining the lands of S. J. Grose, Jos. Copenhaver, A. J. Kyle, and others, and being the same lands conveyed to said Rucker by James A. Foster, R. G. Foster, A. B. Foster, D. R. Hamilton, Oliver S. Jones, Jeremiah Nutter, and Jacob Copenhaver;
Second. Of two hundred and fifty acres, lying in Nicholas county, West Virginia, on the waters of Buck’s garden, Buffalo and Mumblethepeg creeks, about nine miles north of the Court-house, and adjoining the lands of Levi J. Hooker, John Rapp, Major Burroughs, and others, and conveyed to Rucker by said Levi J. Hooker; and;
Third. A tract of one hundred and seventy-five acres, lying in Clay county, WTest Virginia, on waters of Elk river, known as the John Legg farm, three and a half miles north of the Court-house, adjoining lands of Samuel Martin, Smith Henshaw and others, and conveyed to said Rucker by John Legg,” be, each and all, cancelled, rescinded and annulled, and they, each and all, are hereby declared null and void and of no effect. It is further adjudged, ordered and decreed that the said Chesapeake and Ohio Railroad Company do recover against the de
It is further adjudged, ordered and decreed, that the said original cause of Russell J. Dickinson against "William P. Rucker'and others, be remanded to the said circuit court of the county of Greenbrier for further proceedings therein to be had, and' the said circuit court may, if it be desired, appoint a special commissioner' to reconvey with covenants .of special warranty, to the said William P. Rucker, for, and on behalf of, the said Chesapeake and Ohio Railroad Company, by deed properly acknowledged, whatever legal or equitable title or interest, of every description, which may have passed from the said William P. Rucker and wife, by their said deed bearing date the 18th day of September, 1868, to the said Chesapeake and Ohio Railroad Company, for the lands in said deed mentioned and described and every part thereof, and the said circuit court may further proceed in said original cause, and make such further orders and decrees therein as are in accordance with the principles announced in this opinion, so far as they apply, and as are in accordance with the rules and regulations governing courts of equity, and that the said Russell J. Dickinson have leave to file an amended bill making Janies A. Foster a party to said original cause and any other persons necessary and proper to be made parties thereto, and that said Dickinson have leave to file in said original cause an official copy of the said judgment against William P. Rucker to be read as evidence and to have such force as it is entitled to have.
Decree Reversed, as to ObigiNAl Bill, akd Suit Remabded.