242 F. 373 | 4th Cir. | 1917
Lead Opinion
(after stating the facts as above). There are several questions presented to the court upon this appeal, and which were argued orally by counsel, and are also discussed in the briefs which have been filed. The question of jurisdiction of a court of chancery to entertain the case at all is raised. The view is advanced that the instrument left-by Kuhn with Abraham Midkiff had never been lost, but was in existence and was produced in court when it was called for, and therefore a bill to establish a lost paper could not be maintained. It is further argued that the question as to whether there was an actual delivery of the Kuhn paper as a deed is an issue of fact to be tried by a jury, and is not a matter cognizable in a court of equity. It is also insisted that the appellant was in adverse possession of the land involved in this controversy, claiming it as his own in fee simple, to well-defined metes and bounds, for a sufficient length of time to ripen a title, and that this is also an issue of fact to be tried by a jury. _
_ The further question, as to whether the appellant took the deed from his father for the land in controversy, with notice of the existence of the Kuhn paper, is also presented. There is still another proposition which is called to our attention by appellant’s counsel, and that is that the Kuhn paper contemplated that there was to be an acceptance of it by the two Midkiffs and Harriett Adkins; not only that they were to accept the custody or the possession of it, but to testify their acceptance by signing the instrument itself, under the provisions of the last paragraph.
It seems to us that a court of equity should not incline to favor parties guilty of such laches. During the intervening years between the ejectment judgment and the commencement of this suit, those claiming under that judgment, or their successors, who are now undertaking to recover possession of the minerals, etc., under the Kuhn paper, could have investigated and ascertained, if it had been accepted by the Midkiffs in the form contemplated, or if it had been acknowledged by them, or if it had been put to record. None of these things were done, nor were any steps taken to assert or protect the claim of ownership under the said judgment or under the paper now in controversy.
“A deed must not only be delivered by tbe grantor, but must also be accepted by tbe grantee. Acceptance may be expressed by signing tbe deed or otherwise, or may be.implied from, circumstances. Tbe assent of tbe grantee will be presumed, where tbe deed is beneficial to him, until dissent appear. Where dissent or disclaimer appears, tbe deed is inoperative, and tbe title! to tbe thing granted reverts to the grantor by remitter from such disclaimer. ”
“Q. Mr. Midkiff; wben was tbe first time you ever saw this deed, or knew anything about its existence? A. Some time' after this suit was brought. Q. Was the time you spoke of having gotten it from Solomon. Midkiff tbe first you knew anything about it? A. Tbe first time I ever remember of that deed. Q. Did you have any knowledge or information of that deed, its whereabouts or existence, from Kuhn to Abraham H. Midkiff and others for this land? A. No, sir. Q. Did you ever have any knowledge of this deed or its existence before tbe time you obtained it from Solomon R. Midkiff? a. X never beard of it that I remember of. Q. Are you positive that tbe Sunday morning you went down and got this deed from Solomon R. Midkiff was after you had been notified in this suit? A. Yes, sir; I went down there to make same arrangements about getting a¡ lawyer to attend to the suit, and we got to talking about the deed, and he asked me if I knew where it was, and I told him, ‘No, I didn’t know anything about it.’ ”
Abraham Midkiff, when he was interrogated about it on the stand, said this:
“Q. Did you talk to the boys about this Kuhn deed — about what to do with it? A. Everybody was talking about ’em then. Q. Did you talk to your wife about it? A. She said to. sign no deed until we found out about it. Q. And you talked to the boys about it? A. I don’t remember. Q. When did you and Newt first talk about it? A. I reckon it was when I first sold him the land. I told him Kuhn wanted me to compromise, and I never had, and never expected to. I told him Kuhn wanted me to acknowledge it, and I never would do it.”
The appellant’s testimony is positive and direct in its character and to the effect that he never saw, knew of, or heard about the Kuhn paper until after the bringing of the present suit, when he found it in the
A forceful fact in this case is that the Midkiffs had been at all times in possession, beginning with the possession of Lewis Midkiff, the ap pellant’s grandfather, anterior to the bringing of the ejectment suit; following after the death of Lewis Midkiff was the joint possession of his heirs at law, Abraham Midkiff, Solomon Midkiff, and Harriett Adkins. They exercised undisputed dominion and control over the entire lands, the boundaries of which were certainly defined and well known, and during all this time no one appeared to assert any right, title, or claim to the land or any interest whatever therein. The appellant was cognizant of this situation; saw the character of ownership which, his grandfather and his father and his uncle and his aunt, asserted. Under these circumstances he bought the parcel of land now in controversy, paid for it, not only a valuable consideration, but a fair price, took a deed from his father, which the evidence shows he caused to be registered, and thereby gave notice to the world of his title. He set about and erected a valuable dwelling and made other substantial improvements upon the premises. It is not, in our opinion, a reasonable conclusion that the appellant would have done all these things if there was any suggestion to him that there was a defect in the title to the lands. We say further that the weight of the evidence sustains the view that appellant had no notice of the Kuhn paper, and we think that it should have been so held by the trial court. We cite as in unison with the views we have been expressing the case of Hodges v. Eddy, 41 Vt. 485, 98 Am. Dec. 612, and also 10 R. C. L. 845, under the head of “Burden and Quantum of Proof.”
There was nothing to induce a compromise by the plaintiffs in the ■ejectment suit with the two Midkiffs and their sister, Harriett Adkins, at the time of the execution of the Kuhn paper sought to be set up as ■a deed. The action so far as they were concerned was ended by a final judgment, by virtue of which the whole interest in the land was awarded to the plaintiffs, and there is no suggestion that there had been any •compromise agreed on with them before the judgment against them was obtained. Further than this, the judgment against the two Mid-kiffs and their sister was not by default; but, as appears from the record, they had entered their plea, denying the right of plaintiffs to recover, and the issue thus raised was decided against them, so they had no interest left in the subject-matter of the action to constitute a basis of compromise. Further, at the time Kuhn visited Abraham Midkiff and left the paper, the action against the two Midkiffs and Harriett Adkins, as heirs at law of Lewis Midkiff, had been ended by a final judgment, and the issuance of the writ of possession. Mr. Black, in his Law Dictionary (second edition, page 887), under the head of “Pending” uses this language:
“Begun, but not yet completed; unsettled; undetermined; in process of ■settlement or adjustment. Thus, an action or suit is said to be pending from its inception until tbe rendition of final judgment.”
And he cites in support these cases: Wentworth v. Farmington, 48 N. H. 210; Mauney v. Pemberton, 75 N. C. 221; Ex parte Munford, 57 Mo. 603.
To restate our views, we are of the opinion that the Kuhn paper was not executed during the pendency of the suit against the persons named therein as grantees; that the judgment against the two Midkiffs and Harriett Adkins was not by default, but was taken after they had •appeared and entered their formal plea, denying plaintiffs’ right to recover; that there were no terms of compromise or settlement entered into with the parties named, during the pendency of the action against them; that under the circumstances Kuhn was not authorized to execute a deed, in the name of his principals, to the two Midkiffs and their sister Harriett Adkins. The purpose of the principals in constituting Kuhn their attorney and empowering him "to make deeds was undoubtedly to secure compromises of controversies or to settle adverse claims affecting the lands involved in the suit. It was not to ■empower him to give away lands, or interests in lands, to which their title in fee simple had been finally confirmed by a judgment of court
It necessarily follows, from the views that we have expressed, that our opinion is that the Kuhn paper could not be established as a deed, and that the decree of the District Court to that effect was erroneous. The said decree is therefore reversed, and the case remanded, to the end that complainants’ bill may be dismissed. •
Reversed.
Dissenting Opinion
I dissent. The statement of the case made in the majority opinion makes clear the questions involved and the nature of the suit.
It is first contended by appellant that the suit must fail, and the judgment must be reversed, because the deed executed by Kuhn under power of attorney which complainants seek to establish was not authorized by the authority conferred on him. It is true that the power of attorney on its face gives authority to execute such deeds “as may be proper and necessary to execute in order to settle and compromise certain actions of ejectment now pending,” and the deed here in question was not executed until after the suit had culminated in a judgment in favor of the plaintiffs. But if the grantees accepted the deed and held the land under it, they would be estopped from alleging its invalidity against Kuhn’s principals, ratifying it and claiming under it. They could not accept the benefit of it by remaining in possession and using the land, and afterwards repudiate it in the effort to escape its limitations and reservations.
The next defense is that the deed conveying the surface to the Mid-kiffs and reserving the mineral rights was never accepted. At the time the deed was made the grantees had been adjudged to have no interest whatever in the land. Since the deed conferred benefits on them, and was found in the possession of one of the grantees, Abraham Midbiff, there is a strong presumption of its acceptance, at least by him. Abraham testified that he could not remember whether Solomon and his sister, Harriett Adkins, the other grantees named in the deed, were present when the deed was given to him or not, but he testified that he had talked to Solomon about it. The ejectment suit and its results were subjects of great notoriety in the community. The deed was the subject of earnest discussion in the family. It was retained and carefully preserved by Solomon and Abraham Midkiff, two of the grantees. Abraham, the grantee who originally received the deed, afterwards acquired the interests of the others. After that acquisi
I cannot resist the conclusion from the evidence that the existence of the deed was well known and much discussed in the entire family, and that it had been accepted and preserved as a muniment of title. The only evidencie tending to show that the deed was not accepted is that of Abraham Midkiff that it was brought to him by Kuhn as a proposition to compromise the judgment in ejectment, and was received by him with the understanding that if it was accepted as a compromise he was to return it to Kuhn, and that he concluded not to accept it, and said nothing more to Kuhn about the matter. The statement that the grantees were to return to the grantors the deed if accepted, which was their only protection from actual ejectment, even if it were not disproved by the circumstances, is intrinsically improbable, if not incredible. The danger of its acceptance by the court is emphasized by the fact that Kuhn, the attorney in fact who made the deed, is dead. When its improbability is considered in connection with the other circumstances showing acceptance of the deed, it seems to me the defendant’s case is without substantial foundation. If the grantee of a deed, who had no title to the land, and who received the deed from the true owners at the time it was made, carefully preserved it, and produced it from his possession, can be allowed to defeat it by testifying that he never accepted it, and that he has been holding adversely to it, the result would be unfortunate insecurity of land titles.
Equally untenable is the position that Newton Midkiff was a purchaser for value without notice. It is true he denies that he had any notice of the deed until the commencement of this suit; but Abraham Midkiff, his father, a witness introduced by him, testified that he talked with him about the deed at the time he purchased. Thus he was put upon notice of its contents. Nor is Newton Midkiff in a position to claim the minerals by adverse possession. At the time he purchased from Solomon, the minerals and the surface had been severed by a conveyance of the true owners of the land with a reservation of the minerals. He bought with notice of this severance, and therefore could not claim the coal by adverse possession of the surface. Adverse possession of the coal could have been started only by actual working of the coal, or some other act of dominion over the minerals, showing assertion of title and use in accordance therewith. Wallace v. Elm Grove Coal Co., 58 W. Va. 449, 52 S. E. 485, 6 Ann. Cas. 140; Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N. S.) 558; Kiser v. McLean, 67 W. Va. 294, 67 S. E. 725, 140 Am. St. Rep. 948; Steinman v. Jessee, 108 Va. 567, 62 S. E. 275.
The finding of the District Court seems to me to be supported by the clear preponderance of the testimony.
