56 W. Va. 109 | W. Va. | 1904
The plaintiffs in this cause, claiming to be the owners, by -purchase, of the timber on certain lands, which they have been cutting and sawing into lumber, are endeavoring to enjoin other persons, who are the owners, by purchase, of timber on adjoining lands, from cutting and taking certain timber, as •to the ownership of which there is controversy between them, the right to it depending on the location of the division line between the tracts of land on which the timber purchased by them, respectively, stands. Neither of the contending parties • owns any part of the land on which the timber purchased by them is growing. The injunction, therefore, is not intended to be the ordinary restraint of trespass upon land, working irreparable injury, and there is no allegation of insolvency against the .defendants; but it is insisted that the jurisdiction may be sus-
■ Stephenson and Coon, the plaintiffs, purchasers of timber from The Williams Coal Company, The Cabin Creek-Kanawha Coal Company and Thomas L. Broun, co-owners of part of the land, have made these land owners parties to their bill. They have also made J. 3?. Burdett, George L. Burdett and J. A. Johnson, purchasers of timber from the Williams Coal Company, the Cabin Creek-Kanawha Coal Company, W. Mollohan, J. P. Hale, S. Chapman and the devisees of A. W. Cole, deceased, as well as the last mentioned land owners, defendants to the bill. The relief specifically prayed for is against all the defendants. It is that the Burdetts and Johnson be enjoined from taking or interfering with the timber in controversy and be compelled to account to the plaintiffs for the timber which they had taken from the land before the institution of the suit, or might take before service of process upon them; and that the land owners be required to interplead and establish or relinquish their claims and take the fund paid into court in satisfaction for the timber which the plaintiffs claim the right to take from the land. It is upon this last clause of the prayer that the plaintiffs seem to rest their contention for equity jurisdiction. The controversy between the land owners is a complicated one of long standing. The vendors of the plaintiffs are the only land owners who have answered, and they express their willingness to have the disputed line determined and fixed by the court but do not ask that it be done. From these answers, the whole history of the title to the land and the controversies between the claimants thereto appear. Originally, these lands were a part of a tract of 29,000 acres owned by Augustus Pack and William O’Connor, which they had agreed in February, 1849, to divide. Afterwards, along in the 60’s, a coal company instituted a suit in the United States Circuit Court for a division of the tract in accordance with the agreement and a subdivision of the O’Connor moiety among certain vendees of O’Connor and Mary W. Byrne, his sole heir. A survey was ordered and the decree of partition made by which 14,500 acres, one-half of the large tract, was divided among the vendees and the heir of O’Connor. The special commissioner appointed to make conveyances in accord-
As already stated, the vendors of the plaintiffs are the only land owners who 'have appeared in this suit, and they do not ask that the dispute as to the line be determined here. They only
Upon this bill an injunction was granted, by the judge of the circuit court of Kanawha county, on the 8th day of January, 1902, restraining the Burdetts and Johnson from cutting, removing or in any way interfering with the timber in question. On the 28th day of the same month, the Burdetts and Johnson obtained from the judge of another circuit, upon an answer in the nature of a cross-bill another injunction, restraining the plaintiffs in like manner. A large amount of evidence was taken, and, on February 16th, 1904, the cause coming on to be heard, the court overruled the demurrer of the defendants, Burdetts and Johnson, and also their motion to dissolve the injunction, and authorized the plaintiffs to sell the lumber which had been manufactured from the timber, about 250,000 feet, and pay the proceeds to the general receiver of the court. From these rulings, the Burdetts and Johnson have appealed.
Besides showing his want of interest in the thing to which the defandants claim title or right, the plaintiff must make it appear from his bill that the two defendants claim the same thing from him. It must not only be the same money or property, but they must derive their claims to it from the same source. In other words, they must not claim under titles hostile to one another. Thus, in Johnson v. Atkinson, 3 Anst. 798, where a tenant attempted to file a bill of interpleader against his landlord and other persons claiming paramount title to the land, to compel them to submit the question as to who is entitled to the rent, it was said: “The things demanded are also different; we cannot anitcipate the decision whether the heir will be bound by his acceptance of a portion of rent. The things actually demanded are different, and therefore not the subject
Originally, it was uniformly held by the court that a bill of interpleader could not be sustained except against defendants between whom there exists a privity. Their claims had to be deduced from the same title, and if one claimed under a hostile, distinct and paramount title, they could not be required to in-terplead for the protection of the plaintiff. 11 Enc. PI. & Pr. 449.. In later years there has been an inclination to relax this rule. Crane v. McDonald, 118 N. Y. 658. But this tendency is founded largely upon statutory provisions and it cannot be said to be, by any means, general. It amounts to a criticism of the rule rather than a repudiation of it. As to the rule requiring privity, see Haseltine & Walton v. Brickey, 16 Grat. 116; Shaw v. Coster, 8 Paige (N. Y.) 339; Conley v. Ins. Co., 67 Ala. 472.
Another principle is that a tenant cannot compel his landlord to interplead with another person claiming under a title adverse and hostile to the landlord. This principle is recognzed in Oil Run Petroleum Co. v. Gale, cited, and the Court was careful to see that it was not violated. Dungey v. Angove, 2 Ves. Jr. 303, (304), is a leading case on the subject. During the argument, Lord Chancellor Loughborough said “But in this case how monstrous a thing it would be, if it was in the power of the tenant to make the landlord, at law the defendant in ejectment, disclose his title by an interpleading bill.” In delivering the opinion, he said further: “The alarming consequence is, that
Another principle to be observed is that such a bill cannot be sustained where it appears that as to either of the defendants, the plaintiff is a wrongdoer. Thus, in Shaw v. Coster, 8 Paige (N. Y.) 339, where a sheriff, having levied an execution upon property claimed by a third person, attempted to compel the creditor and the claimant of the property to interplead, the court said, that, as to the latter, if his claim of title was valid, the sheriff was a trespasser, and then held that, he could not sustain an interpleading suit if he were obliged to admit that, as to either of the defendants, he was a wrongdoer.' In the same kind of a case, a like conclusion was reached, and the same principle announced by the supreme court of North Carolina, in Quinn v. Green, 1 Ired. Eq. 229. A case sometimes cited to the contrary is that of Storrs v. Payne, 4 Hen. and Munf. 505. That case is not authority. It is a decision of the Superior Court of Chancery in the Richmond District and not a decision of the supreme court of appeals of Virginia. Moreover, it does not decide finally that a bill of interpleader may be sustained under such circumstances. The chancellor refused to grant an injunction upon the bill, but said it might be filed, if the plaintiff chose to do so. Whether it was filed or not does
Again, interpleader will not lie, if the plaintiff has incurred some personal obligation to either of the defendants, independent of the title, or the right to possession, because such defendant would, in that event, have a claim against him which could not be settled in a-litigation with the other defendant. “The equitable remedy by interpleader will not lie at the instance of one who has an interest in the result of the' controversy between the different claimants, but he must stand indifferent between them — in the position of a mere stakeholder— and must not have incurred any independent liability to either of the claimants; and hence a surety on a claim bond in whose possession the property has been left by the principal can not resort'to such a remedy, when different claims to the property are presented by several respective claimants.” Kyle v. Lee, 112 Ala. 606. “It is also settled that interpleader will not lie if the complainant has come under some personal obligation to either of the defendants, independent of the title or right to possession, because such defendant would, in that event, have a claim against him, disconnected with the title, which, could not possibly be settled in a litigation with the other defendant.” Whitney v. Cowan, 55 Miss. 626, 645. “If a life insurance company has issued a policy on the life of A. payable to B., has allowed A. to surrender the policy without the consent of B., and has issued a new policy to A. payable to C., it cannot, on the death' of A., maintain a bill of interpleader against B. and C. to determine its liability. National Life Ins. Co. v. Pingrey, 141 Mass. 411. In this case, the court said: “A plaintiff cannot have an order that the defendants interplead, when one important question to be tried is, whether, by reason of his own act, ho is under li ability" to each of them.”
' I-Iow far are these general principles deviated from in what is called a bill in the nature of a bill of interpleader ? The answer to that question will show whether this bill can be sustained. Under the foregoing principles, it clearly cannot be.- IE they do not govern bills in the, nature of bills of interpleader, it may be that the relief here asked can be had. 'íhe only material differ
The plaintiff, in a bill in the nature of a bill of interpleader, shows that he has an interest in the property or fund which forms the subject matter of the controversy between the defendants. It must not be an interest which he hopes or expects to acquire as the result of the litigation between them. ' It must be a subsisting, vested equitable interest. A good illustration of’ the principles governing such a bill is found in the ease of Mitchell v. Ilayne, 3 Sim. & Stu. 63, 1 Eng. Ch. R. 347, holding as follows : “If an action is brought against an auctioneer for a deposit, he cannot file a bill of interpleader, if he insists upon retaining either his commission or the duty.” Here the plaintiff set up an interest in himself. If it had been such an interest as might have been properly set up in a bill in the nature of a bill of interpleader, the bill would have been entertained and re
A case which illustrates the conditions under which a bill of this kind may be sustained is Parks v. Jackson, 11 Wend. (N. Y.) 442. A purchaser of land by contract entered upon the same, made improvements, paid the purchase money and obtained a deed. Before he made the payment and obtained • his deed, a chancery suit was commenced against his vendor by a creditor of the grantor of the vendor to avoid his title, as having been fraudulently obtained. He had no actual notice of the fraud of his vendor until after he had purchased, entefed upoh and improved the land. It was held that he might compel his vendor and the creditor to interplead.' As it appeared that the purchaser had already acquired an equity in the land and that the creditor, although proceeding against the title to the land, really sought to obtain satisfaction of his judgment out of the purchase money and was not concerned about, nor interested in, the title claimed by the purchaser, except to revest it in the debtor as a means of obtaining satisfaction of his judgment, the controversy was, in substance, one between the vendor and the creditor over the purchase monejr, as to which the purchaser made no claim, he having been perfectly willing to pay the purchase money. He made no claim to the thing really contended for by the defendants, but he did claim an interest in the real estate incidentally inv61ved in that controversy.
A case which goes perhaps a little further is Darden v. Burns, 6 Ala. 362. There, a testator had given to his daughter and her heirs a negro woman and provided'in his will that, if the daughter should have no lawful heirs, then the woman should revert to his family or estate. The daughter married and afterwards
fifrom the bill in this case, it appears that the plaintiffs have cut some of the timber and are claiming other timber which may be across the line on the lands of persons other than those from whom they have purchased. Whether this timber is beyond the line or not, is the very question they desire to have determined. They claim it under one title, while the Burdetts and Johnson and the persons from whom they purchased claim the same timber under a distinct, adverse and hostile title. There is" no shadow of privity between the two classes of defendants to the bill. Moreover, in. strictness, the two classes of defendants do not claim the same thing, for the identity of the property is to be determined as well as by the title under which it is claimed as by its physical character, form and location. In one event, it may be the timber of the five thousand acre tract held under the title claimed by Broun and his co-owners. In another event, it would be property held under the Cole and Chapman title. That these titles are adverse, is admitted by the bill and shown
Another defect is its failure to show a rested equitable title to the timber in the plaintiffs. Like the case of Mitchell v. Hayne, cited, it discloses an effort on the part of the plaintiffs to bring the defendants in to litigate, at their own cost and for the benefit of the plaintiffs, a matter which they may not desire to litigate, in the hope that it will result in establishing the title of the plaintiffs to timber which they hare already cut and other timber which they desire to cut, and as to all of which they may not now hare any title.
Again, if the claim of the rendors,' Burdetts and Johnson, stated in the bill, should be sustained, the plaintiffs will be, as to them, wrongdoers. If the location of the line is as claimed by the Burdetts and Johnson and their rendors, the plaintiffs are trespassers, and the settlement of the boundary line upon this bill would foreclose and determine a question which is wholly foreign to the contract upon which all the rights of the plaintiffs are predicated. See Shaw v. Coster, 8 Paige (N. Y.) 339; Quinn v. Green, 1 Ired. Eq. (N. C.) 229.
By this.trespass, if there has been one, and, if one theory of the bill should be sustained, there has been one, the plaintiffs hare incurred a liability to one set of the defendants with which the other class hare nothing whaterer to do, and, if the relief asked for by the plaintiffs should be granted, and these two sets of land owners should be brought in and compelled to litigate the question of location of the boundary line, one of the principles gorerning interpleaders would be plainly riolated, namely, that a plaintiff who has incurred an independent liability to one of the defendants cannot compel an interpleader. See Crawshay v. Thornton, 3 My. & Cr. 1, 14 E. C. 1; Desborough v. Harris, 5 DeG. M. & G. 437.
So much of the bill as purports to set forth matter of estop-pel, seems not to be relied upon by counsel for appellees. Little or nothing is said about it in the brief. Eor the most part, the facts set up on the theory of estoppel, so far as they relate to the location of the disputed lines are only matters of evidence, in the nature of admissions, and are, therefore, available at law. The whole controversy between Stephenson and Coon on the one side and the Burdetts and Johnson on the other relates to the
In this State, the mere taking of timber is not regarded as irreparable injury to the owner, entitling him to the benefit of an injunction. Some additional fact must appear by reason of which the remedies provided by law are inadequate to his full and complete protection, such as the insolvency of the trespasser. Cox v. Douglass, 20 W. Va. 175; McMillan v. Ferrell, 7 W. Va. 223; Watson v. Ferrell, 34 W. Va. 406; Cresap v. Kemble, 26 W. Va. 603.
The demurrer was not interposed until February 16, 1904, when the orders complained o¿ were entered, and Icing after the answer had been filed. Therefore, it is suggested that it came too late, although, in their answer, the defendants gave notice that they did not waive any insufficiency, defect or imperfection in the bill. This position is untenable. Bassett’s Admr. v. Cwv-ningham, 7 Leigh 403; Bossell v. Greer, 3 W. Va. 1.
As the bill plainly fails to present any equity in the plaintiffs, the motion to dissolve the injunction and the demurrer should each have been sustained and the bill dismissed. Therefore, the decree complained of will be reversed, both injunctions dis- ■ solved and the bill dismissed, and the appellees must pay to the appellants their costs in the circuit court as well as their costs in this Court. , . Reversed.