29 W. Va. 487 | W. Va. | 1887
This is an injunction from the Circuit Court of Greenbrier county. The plaintiff, Porter Kinports, and the St. Lawrence Boom & Manufacturing Company on the 27th clay of
The plaintiffs allege, that “ there is a serious cloud upon the title of at least said tract of 1,632 acres of land, and that owing to that fact and the other facts herein stated the sale of said property as advertised would inevitably result, as the plaintiffs believe and charge, in a great sacrifice of said property and in the irremediable and great damage to the plaintiffs —that the said 1,632 acres of land constitute the most valuable portion of the property by them purchased, and more than $7,000.00 having been paid, the plaintiffs have no means of protection against the loss, which they will sustain, if such sale be made, or if they should pay the debt and lose the land by paramount title ; — that Rawson was not in the actual possession of the land at the time of the sale, and neither of said plaintiffs has been put or is now in the actual possession thereof; but they claim and upon information allege, that at the time of the purchase of said land by said Rawson and of the conveyance of the same, his vendor and those, under whom he claimed, had held under color of title and under a grant from the Com
The bill prays for an injunction to said sale, until by a decree in the cause the said cloud on the title to the 1,632 acres should be removed, and that Holt and Mathews may be required to produce their title to said land, that the title thereto may be determined and quieted. The bill was sworn to. The injunction was granted on the 3d day of July, 1F85.
The defendant, Rawson, answered the bill and with his answer exhibited a grant from the Commonwealth of Virginia issued on the 3d day of June, 1856, to May & Oleek for the 1,632 acres of land and a conveyance for the same by said May of his two thirds undivided interest executed on the 10th day of June, 1881, and from the executor of Oleek for said Oleek’s undivided one third interest in said land, dated on the 12th day of September, 1881. In this answer he denies, that he was not in possession of said land, when he sold to Kinports, and avers, that he had the actual and uninterrupted possession of all said land, and especially of said 1,632 acres, at the time he sold and conveyed it, and that he and those, under whom he claimed, had had such possession under a g’ood and sufficient title for over twenty years, as he is informed and verily believes; — that there were houses, enclosures and improvements extending into it on tracts adjoining the 1,632 acres belonging to ElijahMay, one of the respondent’s grantors, which said houses were occupied by said May’s tenants, which facts were fully know to said Kin-port’s agents ; — that the possession of said May was open and notorious; — and that said Kinports was j.)laced in the actual possession thereof, and if he has not remained so, the fault is not respondent’s. H'e denies, that Holt and Mathews have any valid or subsisting title to any part of said land ; — or that plaintiffs have ever been approached by said Holt and Mathews, their agents or attorneys, with threats of suit or
He avers, that he knows nothing of suy suit by the •grantors of Holt and Mathews against one White pending-in the Circuit Court of Pocahontas county or of the issue involved therein, and that the bill does not enlighten him as to who the grantors of Holt and Mathews are. He denies, that there were such conflicting claims to said land as to cause them to sell at a sacrifice at the time advertised, and avers that they have greatly appreciated in value, and that he is willing and has repeatedly offered to refund to said Kinports his money paid, if he will re-convey the land. He denies the charge, that he has no property in this State, and says, that he has property in this State of the value of at least $2,000.00, ■at Covington, Ya., of the value of $4,500.00, at Richmond, Ya., where he resides, of the value of $2,000.00, and at Newport News, Ya., of the value of $1,000.00 and other assets amounting to at least $4,000.00. He denies the right of the -St. Lawrence Boom and Manufacturing Company to proceed against him or to stay the collection of his debt against Kin-ports ; and again denies the right of Kinports after having ■conveyed to the Boom Company with special warranty the property to enjoin the sale, no matter what the condition of the title. He avers, that the whole object of the suit was to delay and hinder him in the collection of his claims. He avers, that he has always acted toward said Kinports in the most open and frank manner, at his simple request, extending the time, of payment on said bonds, as to one of them eighteen months and as to the other six months, and during all this time not one intimation was made as to any cloud on ■or defect in the title.
The plaintiffs took the depositions of John W. Harris, attorney for and also director of the Boom Company, E. H. Camp, the Yice President and Treasurer of said Company,
John W. Harris testified to the substance of the bill, if it can be said to have any substance. He says, the 1,632 acres are claimed by Holt and Mathews; that they claim to be owners of said land by title superior to that of Rawson’s; and that they had asserted to him as-the representative of the Boom Company such claims; that they had exhibited to him, what purported to be a plat of the Swan survey of 17,000' acres of land, and pointed out to him the 1,632 acres as lying: within said survey, uncler which they claimed, and showed him, that said 1,632 acres- were laid down as lying within said survey; and the surveyor, who ran. the lines- and platted said land, had declared to him, that 1,632 acres were included within said survey; — that there was lately pending in the Circuit Court of Pocahontas county, where said lands lie, and still is pending, as- deponent is informed by counsel therein, an action, which was brought by some of the vendors of said Holt and Mathews against one White, and said AFhite has pointed out on said plat either the whole or a part of the land sought to be recovered of him as lying within said Swan survey as- so platted and exhibited to him, the deponent; and it is a matter of common report and belief, that the paper-title asserted against said White is the same paper-title asserted to said 1,632 acres. He further says, that the fact, that Holt and Mathews assert a claim to the said 1,632 acres, is widely and extensively known in said county of Pocahontas and among lumber and timber men in Green-bi-ier county.
On cross-examination the witness stated, that, when he first ascertained, that the 1,632 acres lay within the survey claimed by Holt and Mathews-, he asked Holt, whether he intended to claim- the land; that he replied in the affirmative, and “• I gathered the idea of a threatened suit from this reply and my subsequent conversations with the parties. About the time, however of the institution of this suit, in order to have the matter more clearly defined, I asked Capt. A. F. Mathews directly, if I could say, a suit was threatened; and he replied in the affirmative. They did not state the nature or kind of suit, they intended to insti-
E. H. Camp in his deposition does not pretend to know anything about the claim of Holt and Mathews, but says, it was generally known, that they asserted a claim and would enjoin the sale of the land.
John Driscol’s deposition is to the same effect. Porter Kinports in his deposition says, he purchased the land for his co-plaintiff; — that to the best of his recollection Rawson never made Mm a direct offer to refund his money, if he would re-convey the land; — that from what he has heard of the cl.oud on the title without saying, what it was, he thinks it would seriously interfere with the sale of the land.
The deposition of R. S. Turk, Esq., attorney for Rawson, was taken. Pie says: “ I went to see Oapt. Mathews at the request of my client, Rawson, to ascertain, what was the extent of the ‘ threatened ’ suit mentioned in the bill. In that conversation Oapt. Mathews told me, that he had never threatened suit; that Major Harris, counsel for the St. Lawrence Boom and Manufacturing Company, had applied to himself or Judge Holt, I am not positive which, to see the plat of a tract claimed by said Holt and Mathews as belonging to them covering the 1,632 acre tract; that at the request of John W. Harris said plat had been exhibited to him; but that Holt and Matthews had never threatened suit; on the other hand they claimed to be in possession of the land claimed by them, and any suit for it must be against them and not brought -by them; and I further drew from said conversation with Oapt. Mathews, that himself and Judge
On the 13th day of January, 1886, in vacation the special judge selected to try the cause heard the cause on bill, answer of Kawson, general replication thereto, exhibits filed, depositions, and the motion of defendant, Kawson, to dissolve the injunction, upon consideration of which the said judge decided: — “ It was the duty of the trustee in the deed of trust in the bill mentioned to take the proper steps to remove the cloud on the title, which in the opinion of said judge hangsfover the property mentioned in the trust-deed before proceeding to execute said trust by making sale of said property; and that on his failure so to do any party injured has, and the plaintiffs in said bill have the right so to do ; and the said judge being further of opinion, that although in the present state of the case under the Act of the Legislature (Acts 1882, chap. 131, p. 341,) he has no power or authority to direct an issue in this cause to try the title to said lands, and said 'title conveyed to the plaintiffs has not been shown to be clearly defective, and no suit to recover the same of them has been brought or threatened^ yet he is of opinion, that to sell the said land under the circumstances shown to exist and without the cloud on the title would result in the sacrifice of said property, which it is the duty of the court to prevent.” The judge then continued said motion to dissolve until the next term of the Circuit Court of Greenbrier county and directed the said plainiiff, the said St. Lawrence Boom and Manufacturing Company, to bring an action of ejectment against said Holt and Mathews to try the title to said land.
From the decree of the 13th of January, 1886, and that of the 27th of April, 1886, the defendant, Rawson, appealed.
It is properly conceded by counsel for the appellees, that the judge acted without authority in vacation in directing an action of ejectment to be brought by the plaintiff to test the validity of an adverse claim to the land. (Monroe v. Bartlett, 6 W. Va. 441; Johnson v. Young, 11 W. Va. 673.)
As to whether an injunction would under the circumstances of this cause lie to restrain the sale under the trust-deed I do not propose to review the Virginia authorities. This task has been accomplished by Judge Green in Walmsley v. Stalnaker, 24 W. Va. 214, where the conclusion was reached, that in this State equity will enjoin the collection of the purchase-money of land on the ground of defective title, after the vendee has taken possession under conveyance from the vendor with general-warranty, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly, that the title is defective. In this cause there certainly is no defect in the title shown. On the contrary the chain of title exhibited with the answer is complete from the Commonwealth to the defendant, Rawson, and the exhibit with the bill shows the deed from Rawson to Kinports. More than this the proof shows adverse possession of more than twenty years in Rawson and those, under whom he claimed; and this is substantially admitted in the bill. The special judge, who entered the order of January 13,1886, in the order says: “ and said title conveyed to the plaintiffs has not been shown to be clearly defective, and no suit to recover the same of them has been brought or threatened.” This is true. The judge found correctly. It seems to me,
The judge in his decree of January 13,1886, bases his action on Lane v. Tidball, Gilm. 130; Rossett v. Fisher, 11 Gratt. 499 and Burlew v. Quarrier, 16 W. Va. 118. In none of these cases were the trusts executed for the purchase-money but to secure the payment of other debts. In tho ' case in Gilman a suit.was pending affecting the title. In Rossett v. Fisher the legal title was outstanding; and in Burlew v. Quarrier the land had been sold for taxes, and there was a cloud on the title in the form of a tax-deed. Here there is nothing of the kind. From anything, that appears in the evidence, there is nothing whatever in the claim of Holt and Mathews. If they have any bona ñde claim to the 1,632 acres, it nowhere appears in the record. The most, that can be claimed, is, that Holt and Mathews claim, that they own a 17,500 acre survey, and that they caused it to be surveyed, and that the survey as thus laid down included
The decrees of January 13,1886, and April 27,1886, are reversed with costs, the injunction dissolved and the bill dismissed with" costs.
REVERSED.