100 F. 520 | U.S. Circuit Court for the District of West Virginia | 1900
This case is now being heard upon a demurrer to the bill. It is alleged that the commonwealth of Virginia issued its patent, dated on the 29th day of April, 1795, granting Wilson Cary Nicholas a tract of land containing 300,000 acres, lying in the counties of Wythe and Kussell. In 1799 the county of Tazewell was formed from the counties of Wythe and Kussell. In 1858 the county of McDowell was formed from the county of Tazewell. After the formation of these new counties, the greater part of the 300,000-acre tract was embraced by the boundaries of the county of McDowell, leaving the remainder lying in the county of Tazewell, Va. The bill alleges: That the tract of land was returned delinquent in Tazewell county, Va., for the nonpayment of taxes thereon, in the name of Wilson Cary Nicholas, and under an order of the county court of said county made on the -day of-, 185-, 50,000 acres of the said tract was laid oil and surveyed by commissioners for that purpose, and sold for taxes, which was purchased by Kiah Harman, Harvey George, and H. A. Harman. On the 29th day of September, 1853, Samuel L. Graham, clerk of the county court of Tazewell county, conveyed the land by deed to the purchasers, which is recorded in the clerk’s office. The bill further alleges: That subsequently, by sundry conveyances from the purchasers and their heirs at law and devisees, the title of the land vested in one James S. French. That on the 27 th day of March, 1871, French conveyed to the plaintiffs, by deeds duly recorded, the tract of 50,000 acres of land, with covenants of general warranty. That on the - day of -, 1871, the plaintiffs conveyed undivided portions of the tract of land, as follows: First, to Alexander McConnell 1,100 acres, common and undivided, being a portion of the 40,000 acres, which was a portion of the 300,000 acres, but, as is alleged in the bill, the 40,000 acres was bounded and described by the same boundaries that bounded and described the 50,000-acre tract; second, to Albert Kinear 1,100 acres, common and undivided, being a portion of the 40,000 acres, which was a part of the 300,000 acres, the boundaries being the same as the 50,000-acre tract; third, to Benjamin D. Wright an undivided one-tenth interest in 40,000 acres in the land owned by Sperry and Kitehie, the boundaries of the 40,000 acres being the same as the 50,000-acre tract. The bill further alleges that McConnell, Kinear, and Wright held undivided interests in 50,000 acres, and were and continued to be tenants in common with your Orators, and all persons claiming interests in said lands under your orators, and that, by reason of the co-tenancy existing between the. parties, McConnell and Kinear had the right to have laid off and assigned to each of them 1,100 acres of the said 50,000 acres free of all adverse claims, and the said Benjamin D. Wright the right and title to one undivided tenth of the whole 50,000 acres. And it is further alleged that on the 5th day of December, 1877, Daniel H. Harman, acting for the benefit of David G. Sayers, a defend
Upon the allegations of ihe bill, the court is asked that the various salt's and conveyances made, both under the attachment, proceedings and the tax sale, be set aside, and declared null and void, and that the clouds resting upon the plaintiff's’ title by reason thereof be removed, and that, in the event the court is of opinion that the defendants Bayers or Harrison's heirs are entitled to any portion of this land, the court will decree a partition as to the undivided interest and share in 'the lands which passed to and vested in the plaintiffs under (he deeds from McConnell, Rinear, and Wright, and to have their por!ion laid off and assigned to them. The further prayer of the hill is ¡hat, in the event the court should be of opinion that the plaintiffs could not recover (he lands conveyed by Bayers and Harrison to other persons, then, inasmuch as they have realized large sums of money from the lands so sold and conveyed, they should be required to account to the plaintiffs in this action for tin moneys so received. The further prayer of the bill is that the sale and conveyance made under the chancery suit in J878, as well as ihe pretended sale for taxes made in 1879, and the conveyance made to D. (I. Bayers in 1881, may be declared null and void, and (he deeds set aside and annulled, and that all the deeds made by Bayers and Harrison be set aside and annulled, and that the clouds resting upon the plaintiffs’ tille by reason of any of the deeds mentioned in the prayer of (he bill be removed, and the plaintiffs' title cleared of such clouds, and that, if for any reason the court is of opinion that ¡lie deeds to Bayers cannot be set aside and annulled, the plaintiffs may be decreed to be entitled to have a partition of said 50,000 acres vested in said Bayers, or in Henry Harrison’s heirs at law, and may also have their undivided interests which passed to them under the deeds from Rinear. McConnell, and Wright, hereinbefore mentioned, decreed and laid off and assigned to them; and, if for any reason the court is of opinion that the deeds made by Bayers and Harrison to the other pen-sons cannot be set aside and annulled, (hen that Ihe plaintiffs may be declared and decreed to be entitled to have- partition wiih said effhe-r persems, and to have an undivided interest arel share- in saiel portiems of tin- lanel vvhie-li passe-el te» and ve-sie-d in tlie-m under the- eie-eeds from Rinear, McCemnell, and Wright, as afore-said; and a prayer for general relief.
In the statement I have made of the bill, and the allegations con
The first ground of demurrer is that the plaintiffs have a full, adequate, and complete remedy at law. This bill is filed chiefly for the purpose of setting aside a deed made under and by virtue of the authority of the circuit court- of McDowell county, and also to set aside a tax deed made by Johnson, clerk of the county court of McDowell county, for the land described in the bill. The ground for asking that these deeds be set aside is fraud in obtaining the decree of the court which resulted in selling the land of the plaintiffs, and also for the fraudulent sale of the 50,000 acres at the tax sale.
We will first notice the sale under the decree of the court. It is alleged that an attachment was sued out by D. H. Harman, whose relation to the plaintiffs, in law, seemed to be that of an agent; for he had received a check, which he had collected, for the purpose, of paying taxes on the 50,000 'acres, which he failed to apply. It is also alleged that a second check was given him by mistake, and that instead of returning it as a faithful agent should have done, when it was protested, he instituted an action upon it, sued out an attachment, and levied it upon the plaintiffs’ lands, and obtained a decree,directing the lands to be sold, and had a man appointed as commissioner to make sale of the lands, who, the bill alleges, was interested with him in the purchase of the lands, and that a conspiracy was entered into between Harman and Harrison, who was the commissioner appointed to sell, and Sayers, who was the purchaser, in reference to the sale of these lands, apparently at both the judicial and the tax sales. Questions of this character, involving fraud, cannot well be disposed of in a proceeding at law, but are properly cognizable in a court of equity, where the conscience of tiie parties can be appealed to and called upon to disclose all their acts in connection with the sale and purchase of the land in controversy. The demurrer admits that the plaintiffs in this action were the owners of the land before the judicial proceedings were commenced and before the tax sale. While it is not distinctly alleged that Harman was the agent of the plaintiffs, it is alleged that a check for money was sent to him for the purpose of paying the taxes upon the lands, and that he accepted the trust and collected the money, occupying a sort of fiduciary relation to the plaintiffs in this action, but the proceeds of which check he did not apply to the purpose for which it was sent, for the lands were subsequently sold for taxes. But not only is this so. Instead of notifying the plaintiffs in this action that he had received the money and applied it, when the second check — which was sent to him by mistake — came and was protested, instead of calling upon the plaintiffs, as he should
But it is claimed that the circuit court of McDowell county had full and complete jurisdiction over this matter, and that, that jurisdiction being exercised, it cannot be collaterally attacked. A court has jurisdiction over a person when it has the person before the court upon its processes duly served, or it has jurisdiction over any estate of the person, under our statute, wh<?n he is a nonresident, by attaching it under the statute when the proceedings fully comply with the terms of the statute. In this case there was an attempt to sue out an attachment, not in accordance with the terms and provisions of the statute, but strictly in defiance of the statute. 'Oan it be said that, when a court undertakes to exercise jurisdiction over the property of a nonresident, it can sequester his property, and dispose of it, without service of process upon him, or without pursuing the statute strictly that gives a court the right to exercise its jurisdiction in the absence of process, duly executed? In this case the attachment that was sued out was for a very small debt — less than POO — against a tract of land of great value, supposed to contain an area of 50,000 acres. No bond was given, as required by the statute, before the sale was made. The proceedings had under the statute were in derogation of the rights of the party at common law, and it is a well settled and familiar principle that, where a proceeding is founded upon a statute wdiich deprives a party of his common-law rights, every condition or requirement of the statute must be fulfilled and strictly complied with. What protection has a nonresident who owns real estate in our state, if he has no notice of a suit that may be brought against him, ánd if his property is proceeded against for the purpose of collecting either a rightful or an illegal claim, unless the conditions which are precedent to the exercising of these powers which confer jurisdiction upon the courts are complied with? The courts all hold that, where proceedings are instituted under statutes of this character, a failure to comply with the provisions of the statute should be condemned, and the sale of property under such circumstances should be set aside. The statute expressly provides “that no sale of real estate, attached, shall be made until the plaintiff, or some one for him, shall give bond, with sufficient security, in such penalty as the court shall approve, with
“It is apparent from these provisions that the legislature, in the enactment of this statute and authorizing the sale of property of an absent defendant hy ex parte proceedings, was fully aware of the great injustice that might be done to the defendant by an abuse or oppressive use of such proceedings, and it therefore used great precaution in placing upon iliem every reasonable restriction and limitation it was possible to do, to prevent such abuse, and such as would effectually guard and protect both the rights of the defendant and the bona fide purchaser in sncli cases. In order to secure indemnity to the defendant and to protect the title of the purchaser, it expressly declared that the plaintiff should not have the benefit of the provision authorizing the sale of the property unless and until he shall have given bond with security to answer any future order made in the case. This was intended to secure the defendant against any damage that might, be done him by the ■wrongful employment or abuse of the provisions of the statute, without the necessity of resorting to the property sold. It ivas also intended that this bond, by thus securing indemnity to the defendant, should protect ilie title of the purchaser of the property; for in case such bond was given, and the purchase was bona fide, the defendant is confined to his remedy on the bond, and cannot question or impeach the title of the property so purchased. But In order to make this indemnity and redress to the defendant effectual, ahd protect the title of the purchaser, the statute made it a condition precedent that before any sale could be made the plaintiff should give such bond. Until such bond is given, the statute does not authorize the sale to take place. It also provides that the penalty of the bond shall be such ‘as the court shall approve’; thereby making it necessary for the court, by its order or decree entered of record in the suit, as its orders can only appear by its records, to fix the penalty of the bond. Unless and until such order is made fixing the penalty and the bon'd actually given, no sale can be made under the provisions of the statute; and, if a sale is made without such bond, such sale will not only be made without authority from the statute, but against the express and positive command of it. A sale thus made, in violation of and not under the statute, can confer no title upon the purchaser.”
It lias been repeatedly held that a judgment of a court of competent jurisdiction, rendered without authority of law7, is a nullity. City of Charleston v. Beller, 45 W. Va. 44, 30 S. E. 152; Norfolk & W. Ry. Co. v. Pinnacle Coal Co., 44 W. Va. 574, 30 S. E. 196, 41 L. R. A. 414; Wilkinson v. Hoke, 39 W. Va. 403, 19 S. E. 520; Manufacturing Co. v. Carroll, 30 W. Va. 532, 4 S. E. 782; West v. Ferguson, 16 Grat: 270; Styles v. Coal Co., 45 W. Va. 374, 32 S. E. 227.
But before I pass from the discussion of the allegations of fraud in the bill, attacking the proceedings in the court of McDowell county I although no notice is taken by the counsel for the plaintiffs of the fact), I was struck wúth the discrepancy between the advertisement of tlie commissioner who advertised, under the decree of the court, the land as “a certain tract or parcel of land in the bill and proceedings mentioned, lying on Dry Pork and its tributaries, waters of Tug river, and near McDowell court; house,” and the deed made by tin; commissioner under the decree of the court, which deed gives the following description of the lands sold in pursuance of the decrees under which he was acting:
"Tlie following real estate, situate in tlie county of Tazewell, Virginia, and .McDowell county, West Virginia, the greater part in tlie latter, being the same land conveyed to I. P. Sperry and S. J. Ritchie by James S. French and wife, by deed bearing date the 27th day of March, 1871, and of record in the clerk's office of McDowell county court, in Deed Book No. 2, pages 20 and 27, being part of a survey of three hundred thousand acres patented to W. (J. Nicholas, the portion herein conveyed being fifty thousand acres thereof; subject, however, to a reservation of six thousand acres heretofore conveyed by the said I. 1’. Sperry and S. .T. Ritchie, eleven hundred acres of which was conveyed to Albert Rinear, eleven hundred to Alexander McConnell, and four thousand to Benjamin D. Wright; the said tract herein conveyed, subject to the reservations aforesaid, bounded and described as follows, to wit: * *
It will be perceived that the advertisement only speaks generally of “a tract of land lying on the Dry Fork and its tributaries, waters of Tug river, and .near McDowell court house,” stating the number of acres as 37,000 acres of valuable land in McDowell county; while the decal made by the commissioner, under the decree of tlie court, describes it as tlie land conveyed to Kperry and Ritchie by James K. French, and as a part of a survey of 300,000 acres patented to W. C. Nicholas, tlie portion conveyed being 50,000 acres. It is apparent to the mind of the court that the advertisement was deceptive in its character, and did not disclose’truly the land that was to be sold. It did not state, as stated in the deed, that it was the land that had been conveyed by French and wife to Kperry and Ritchie on the 27th day of March, 3871, and of record in McDowell county, and that it was a part of a survey of 300,000 acres patented to Nicholas, if the advertisement had truly described the land as the land of the plaintiffs in this action, conveyed to them, possibly the plaintiffs might have been advised by some one as to the lands that were sold. Possibly they might have learned of it in some other way. The no
But it is claimed by the demurrants that the decree of the circuit court of McDowell county cannot be collaterally impeached, and for this reason the court is without jurisdiction in this case. I do not understand that this bill is filed merely for the purpose of impeaching the decree of the court, but it is more particularly filed for the purpose of attacking the two deeds of Sayers, — one made by the commissioner under the decree of the court, and the other the tax deed. The whole scheme'and object of the bill is to attack those deeds, claiming that they are fraudulent and void, and for this reason it is not a collateral attack, but a direct effort upon the part •of the plaintiffs in this action to vacate those deeds; but, even if it were an attack upon the proceedings of the court, “it is an axiom of the law that judgments entered without any jurisdiction are void, and will be so held in a collateral proceeding,” as stated by the American and English Encyclopedia of Law (volume 12, p. 147); and this authority says that it is hornbook law, and cites a number of cases, both English and American, in support of this position.
In the case of Risley v. Bank, 83 N. Y. 318, the court held that where a court was authorized by a statute to entertain jurisdiction in a particular case only, and undertakes to exercise the power conferred in a case to which the statute has no application, it acquires no jurisdiction, and its judgment is a nullity, and will be so treated ■when it comes in question, and can be attacked either directly or collaterally.
In the case of Paul v. Willis, 69 Tex. 261, 7 S. W. 357, the court holds that a void judgment is always subject to collateral attack, and it can derive no legal sanction, even from the lapse of time. It would seem that, a court having no jurisdiction of the person or subject-matter of the person, any judgment rendered by it against either is void, and is a mere nullity, and will be so held in any court when it becomes material to the interests of the parties to consider it. But it may be claimed in this case that the court had a full and complete jurisdiction of the case. That may be conceded. But the question is, did it have jurisdiction to enter the particular decree and judgment thereon that it did enter? As we have before seen, we reach the conclusion that the particular judgment could not be entered; and it is a well-settled principle that, although a court may have jurisdiction of a case, yet, if it appears from the record that it did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter, then that decree and judgment may be collaterally impeached. United States v. Walker, 109 U. S. 258, 3 Sup. Ct. 277, 27 L. Ed. 927; Ex parte Nielsen, 131 U. S.
In the two cases cited and found in 131 U. S., 9 Sup. Ct., the supreme court held that, where a court is without authority to pass a particular sentence, such sentence is void, and the defendant imprisoned under it may be discharged on habeas corpus. Other authorities might be cited to sustain this position, but it is deemed unnecessary to do so.
For the reasons assigned, the court is of opinion that this court has a right to entertain this bill attacking directly the deed made in pursuance of the decree, and also attacking collaterally the decree made, as being a decree without authority of the court to enter. This court has repeatedly held that a bill may be filed to set aside a decree obtained by conspiracy and fraud. Such was the ruling in the case of Braxton v. Rich (C. C.) 47 Fed. 178; in the case of Wakeman v. Thompson, 32 W. Va. Append, p. 1, 40 Fed. 375; in the case of Lasher v. McCreery (C. C.) 66 Fed. 834; and in the case of Sayers v. Burkhardt, 29 C. C. A. 137, 85 Fed. 246,— all of which cases were disposed of by the court as now constituted, and every one of which, except the case of Wakeman v. Thompson, has been affirmed by the appellate court, there being no appeal in the latter case. In the view that I take of these questions, the demurrer attacking the jurisdiction of this court, for the reason that it cannot entertain a bill to set aside the judgment impeached in this bill, must be overruled.
This bill is objected to for the reason that it is an effort to litigate the rights of many parties who should not be made defendants to the bill. In many respects this case is somewhat similar to the case of Wakeman v. Thompson, which was passed upon by Justice Harlan, of the supreme court, and myself, constituting the court. In that case the lands were sold by proceedings in the circuit court: of Boone county, and they passed into the hands of numerous par ties, each claimant having derived his title, under 1he Order of that court, to the lands in dispute, from a common source, — the purchaser at the tax sale. That was a case of delinquent lands that were sold for taxes. In this respect the two cases are similar. In this case, as in the case of Wakeman v. Thompson, the contention is that the sale by the sheriff for taxes was void, as not having fully complied with the provisions of the statute. Each defendant’s title in this case depends upon the fact whether or not the sale made by the sheriff was in pursuance of the statute, and whether the former owners of these lands (the plaintiffs in this suit) became devested of their right and title to the land by reason of the proceedings in the tax sale. Every defendant in this case who claims any portion of this land, and whose title is derived from the purchasers under the decree of sale, or under the tax sale, is necessarily a party to this suit, because, as was held in Wakeman v. Thompson, one person having the same right against a number of persons may have that
If the facts as alleged in this bill are true, in reference to tin; tax sale, that this sale was irregular, in not having complied with the statute; that there was a conspiracy upon the part of the parties who were the purchasers to have the lands sold and divided; that the conspirators after the. sale and purchase divided the lands between them; and that the sale under the decree of the court, as well as the tax sale, was conceived and executed in,fraud, — -then the court is unable to perceive how a remedy at law could furnish adequate and full relief. This bill assails these transactions as illegal, fraudulent, and void.
In the case of Braxton v. Rich (C. C.) 47 Fed. 178, which was very elaborately discussed before the court as now constituted, the question arose as to the effect of a deed executed to a purchaser of lands purchased at a tax sale, founded upon a proceeding for which there was no authority of law. The; court held, in an elaborate opinion, that a deed made in pursuance of such proceedings, to the purchaser
"In the present case there are no defects of a controlling' character that distinctly appear on the face of the tax deeds under which the defendants claim Title; and as those deeds are made by statute prima facie evidence of title in the grantees named in them, and as, therefore, the plaintiffs, if sued in ejectment by the defendants, would be compelled, in order to defeat recovery against them, to resort to extrinsic evidence in support of their title, the deeds in question constitute a cloud upon that title, to remove which the plaintiffs may rightly invoice the aid of a court of equity.”
„ Ft is insisted, under the fifth ground of demurrer, that relief cannot be grunted against bona fide purchasers for a valuable consideration, but the relief must, be a personal one against those who commit a fraud. I do not concur in this position, under the frame of this hill, nor do I think this is the proper time to raise that question. As it is a matter of fact, it cannot: be raised upon a demurrer to the bill. It can only be raised upon the evidence taken in the cast. Clearly, if the purchasers from 'Bayers were purchasers with, notice of the fraud, the taint of fraud, when established by proof, would affect the title of all the purchasers who had notice of it.
Jt is also insisted under the third ground of demurrer that: the will of Denjamin I). Wright, who was one of the owners of the land in controversy, was not properly probated in McDowell county, and for this reason that the title to his interest did not; pass to the plaintiffs. /flie bill alleges that Wright died in 1894; that he was a citizen and inhabitant of the state of Ohio at tlie time of his death; and that he left a will, by which lie devised his interest in those lands to his wife, which was duly probated, in the year 1894, in the probate court of Wummit comity, state of Ohio, and that a duly-authenticated copy was admitted to probate in the county clerk’s oflhe of McDowell county, in this state, on the 12th day of February, 1897. Under chapter 77, § 22, par. 4, Code W. Va., it is provided that where any person dies out of this state, having property within the state, and makes a will, “his will, or an authenticated copy thereof, may be admitted to probate in any county in this state where tlieie is property devised or bequeathed thereby.’’ This provision of the Code seems to answer the objection raised to the bill, because the bill charges that a duly-authenticated copy of that will was probated in the county of McDowell, in this state. It also alleges that the interest of Wright in the lands in controversy was devised to his wife, and that she conveyed whatever right she had
As to the question of co-tenancy, the bill alleges that the lands in controversy, prior to the sale under the decree of the court and the tax sale, were not in the actual possession of any one, and that the owners of these lands, prior to that time, were tenants in common; that when the sale took place under the attachment proceedings, as well as the tax sale, Sayers became the purchaser of the lands; and that, if the court should be of the opinion that he had acquired title under the proceedings heretofore referred to, then he became a tenant in common with the plaintiffs in this action, and that no act of his, injurious, detrimental to, or claiming the lands adversely to his co-tenants under his purchase, would affect their rights, unless he brought home to them notice of his adverse claim and holdings; and for this reason the bill alleges that they are entitled, in the event the court should be of opinion not to set aside and cancel the deed under the attachment proceedings, as also the deed under the tax sale, to a partition of the lands in controversy, setting aside to the plaintiffs in severalty their portion of the land. This is a prayer for alternative relief. It is a well-settled principle in equity that a prayer for alternative relief may be granted, involving the same subject of litigation, where the relief as prayed for in the first instance is denied. It is a general principle of law that “if the plaintiff is in doubt whether, upon the case stated in the bill, he is entitled to one ■ kind of relief or to another, he may frame the prayer for relief in the alternative, so that the court may grant the particular relief to which he is entitled upon the facts stated.” 8 Enc. PI. & Prac. p. 364, and the authorities there cited in the notes. “A bill may be framed with a double aspect, and pray for relief in the alternative, where the state of facts upon which relief is asked are not inconsistent.” Guano Co. v. Heatherly, 38 W. Va. 410, 18 S. E. 611 (Syl., point 2). It seems to me that this principle is so familiar as not to require a further citation of authorities to sustain it.
The next objection to the bill is laches, — that the plaintiffs delayed too long before they commenced this suit. This is a question that should more particularly arise upon a careful examination of the facts in the case, to be disclosed by the testimony taken in it. I am now passing upon the demfirrer to the bill,' and the bill specifically alleges that the plaintiffs did not learn of the conspiracy and combination to deprive them of their lands until the summer of 1896. This allegation, taken in connection with the other allegations in
In a well-considered opinion of this court in the case of Halstead v. Grinnan, 152 U. S. 412, 14 Sup. Ct. 641, 38 L. Ed. 495, it was held that “there can be no laches in failing to assert rights of which a party is- wholly ignorant, and whose existence he had no reason to apprehend”; and the supreme court of the United.States approved of the ruling in that case, and held that “the length of time during which a party neglects an assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not subject to an arbitrary rule.”
In the case of Lasher v. McCreery (C. C.) 66 Fed. 834,— a case that was heard before the circuit judge and myself, and in which I wrote the opinion of the court, — it was held that, laches being an equitable defense, it will not be allowed to deprive a rightful owner of his land, unless the principles of equity require it to be done, and that “laches cannot be imputed to one who was ignorant of his rights, and for that reason failed to assert them”; and this case was affirmed by the appellate court. In the case of Sayers v. Burkhardt, this same question was again presented to the consideration of this court, and the court adhered to the same ruling as in the cases just cited. 29 C. C. A. 137, 85 Fed. 246. In the case of Cook v. Lasher the court held that the “delay of a landowner in bringing suit to annul a tax deed, which is utterly void for failure to comply with the requirements of the statute, and which consequently does not affect Ms title, is not imputable to him as laches.” 19 C. C. A. 654, 73 Fed. 701.
The allegations of this bill are sufficient, upon a demurrer, to entitle the plaintiffs to a hearing upon the questions presented, and, as the court has said, in every case in which laches are imputed to a party who seeks to recover land, it must be decided and controlled by the facts and circumstances which surround the particular transaction. There can be no fixed and definite rule to govern and control this question of law.