101 F. 615 | 4th Cir. | 1900
This case comes up on appeal from the circuit court of the United States for the Eastern district of North Carolina. The proceedings began in the circuit court by a bill filed by the East Coast Cedar Company against the Richmond Cedar Works, seeking partition of certain lands in North Carolina held by these two corporations as tenants in common by several conveyances to them, respectively, from the heirs of Bannister Jarvis and Levy Walker, who had held them as tenants in common. Pending these proceedings, William A. West, the appellant, prayed leave to intervene, claiming that he also had an undivided interest in the same lands. Thereupon he filed his petition intervening, and averring that he is the owner as tenant in common of an interest equal to l,480f- acres in the tracts of land described in the bill. The cause was thereupon referred to a special master. At the references it appeared that West held under a conveyance of the interest of Caroline Walker, one of the heirs of Levy Walker; but he also claimed one-third of the land under a title, dated after the bill in this case was filed, from the heirs of one Spruill, who was co-tenant with the Sykeses, from whom it is charged that Jarvis and Walker derived title. The referee held that it was not competent in this suit for the intervener to dispute the title of the complainant and defendant, as he claims under Caroline Walker, who derived title from a common source with them. He also held, examining into the title of Jarvis and Walker, that they had a perfect title by possession .under color of title, and that the claim of the heirs of Spruill was barred. He then recommended a partition between the complainant and the defendant.
The report of the referee was affirmed, and his legal conclusions adopted, by the circuit court. The intervener excepted, and the cause ' is here on the assignments of error. These present the questions 'arising out of the conclusion of law of the referee.
The facts of the case necessary for a proper understanding of these questions are as follows: On 8th April, 179C, the state of North Carolina issued a patent to John McRae of 5,080 acres,-lying within the ' boundaries of a patent issued the year before for over 100,000 acres
The original proceedings for partition in this case were between the East Coast Cedar Company and the Eichmond Cedar Works. William A. West filed his petition for leave to intervene. In so doing he recognizes the jurisdiction of the court in this as a partition case, and submits himself to its decree. He was and is a necessary party to this suit. He claims an undivided interest in the lands sought to be partitioned, recognizing that the parties complainant and defendant also have an undivided interest in the same lands. In other words, he claims to be a tenant in common with them. This assertion on his part is recognized, and only the extent of his interest claimed is denied. He certainly is a necessary party. In Barney v. Baltimore City, 6 Wall. 280, 18 L. Ed. 825, the question was discussed. Mr. Justice Miller puts co-tenants in common in a suit for partition in that class of persons whose relations to the suit are such that, if their interest and their absence were formally brought to the attention of the court, it will require them to be made parties, if within the jurisdiction, before deciding the case. The reasons given by the learned justice are very strong, and may assist in the further elucidation of this case. He says:
“If a decree Is made which is intended to bind them, it is manifestly unjust to do this when they are not parties to the suit,and have no opportunity to be heard. But, as the decree cannot bind them, for that very reason the court cannot afford the relief asked to the other parties. If, for instance, the 'Tee should partition the lands, * * * the particular pieces of land allotted to the parties before the court would still -be undivided as to those parties whose interest in each piece would remain as before the partition. And they could at any time apply to the proper court, and ask a repartition of the whole tract, unaffected by any decree in this case, because they cannot be bound by a decree to which they are not parties.”
In Willard v. Willard, 145 U. S. 116, 12 Sup. Ct. 818, 36 L. Ed. 644, a tenant in common whose title in an undivided share of the land is clear, is entitled to a partition as a matter of right.
This being the case, the circuit court very properly allowed the petitioner to intervene for his interest and to become a party defendant to the suit. In his answer he sets up his claim, and seeks to support it by testimony. He claims an interest in the land equal to. 1,480$ acres, made up of the interest of Caroline Walker therein now held by him, and of an undivided third therein as alienee of the heirs of Samuel Spruill.
It is objected to this claim that the intervener is estopped from making it as he claims under Caroline Walker, and this assertion of a tit-le in one-third of the tract as alienee of Spruill’s heirs is in derogation of her title. But there-is nothing in the record which shows how much of this land he claimed by or for Caroline Walker. The intervener holds her right, title, and interest therein, without designation of what that right, title, and interest is. And, if she did claim
The intervener being properly a party, does his assertion of an interest greater than that which the complainant and defendant admit that he has render it necessary to suspend the case and await a trial of the title at law? It must be noted that the intervener does not deny that the complainant and defendant each has an interest in common in the land, — an undivided interest. His sole contention is as to the amount of such interest. Nor does he claim in any oilier character than as a co-tenant. He is co-tenant with them by virtue of his lidding' the share to which Caroline Walker was entitled. He alleges that he is co-tenant with them by virtue of his holding the undivided share of Samuel Spruill, who was co-tenant with their grantor, the Sykeses. So, the real question is not on a conflict of title, but on a quantum of interest. In every suit for partition between parties admitted to be tenants in common, the court, for the purposes of partition, must ascertain and determine the aliquot share of each pan owner. This is absolutely necessary to the proper exercise of its jurisdiction, and is one of the reasons given for the requirement that every part owner must he before the court. “In all cases of partition,” says Mr. Justice Story, “a court of equity does not act merely in a ministerial character and in obedience to the call of the parties who have a right to the partition, but it founds itself upon its general jurisdiction as a court of equity, and administers its relief ex aiquo et bono according to its own notions of general justice and equity between the parties. It will therefore, by its decree, adjust all the equitable rights of the parties interested in the estate, and courts of equity, in making these adjustments, will not confine themselves to the mere legal right s of the original tenants in common, hut will have regard to the legal and equitable rights of all other parties interested in t.he estate which have been derived from any of the original tenants in common.” Quoted by Campbell, J., in McCall v. Carpenter, 18 How. at page 306, 15 L. Ed. 392; Story, Eq. Jur. § 6566.
The intervener asked the court below to hold its hand until the question of title could be tried at law. It is true that when the title of a complainant is disputed, and his right to maintain his hill for partition is denied, a court of equity will suspend its interference until the question of legal title has been determined at law. Pom. Eq. Jur. §§ 1388, 1392; Vint v. King, Fed. Cas. No. 16,950; Brown v. Coal Co., 25 U. S. App. 112, 13 C. C. A. 66, 65 Fed. 636. The complainant in a hill for partition has no standing in court unless his title as co-tenant is admitted or has been established at law. But in this case there is no denial of the title of the complainant, nor of its right or of the right of the defendant to a partit ion. The tenancy in common is admitted, and these two parties and the intervener are without question the tenants in common. The position oí. the inter
Jarvis and Walker claimed the fee in the whole of the northern half of the McRae patent. Their claim was of all the land embraced in deeds executed to them by John Sykes, Jr., in 1851, and Joshua T. McCoy on April 8, 1851. These deeds covered the entire northern half of the McRae tract. This McCoy deed cannot be connected with any preceding deeds. Jarvis and Walker entered into actual posses•sion of these lands, under color of these deeds, showing the boundaries and extent of their claim. This was their color of title. They claimed it against the world. Their joint possession was until Walker’s death, about 1868, and Jarvis remained in possession until his death, May 20, 1878. By the law of Forth Carolina, seven years’ adverse possession under color of title makes a good title. Battle’s Revisal, tit. “Limitation of Actions,” c. 17, §§ 20, 23, 147. As against a tenant in common, the possession must be 21 years. McCulloh v. Daniel, 102 N. C. 530, 9 S. E. 413,
It is said that the deeds under which Jarvis and Walker entered do not show a perfect chain of title, and are defective or inoperative. This does not affect them when produced to show color of title. “The courts,” says the supreme court in Wright v. Mattison, 18 How. 56, 15 L. Ed. 283, “have concurred, it is believed without an exception, in defining ‘color of title’ to be that which in appearance is title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent colorable title. The inquiry with them has been whether there was an apparent or colorable title under which ■an entry or a claim has been made in good faith.” In Pillow v. Roberts, 13 How. 477, 14 L. Ed. 231, the law is thus stated:-
“Statutes of limitation are founded on sound policy. They are statutes of repose, and should not be .evaded by a. forced construction. The possession which is protected by them must be adverse and hostile to that of the" true .owner. It is not necessary that he who claims their protection should have*621 a good title, or any title but possession. A wrongful possession, obtained by a forcible ouster of the lawful owner, will amount to a disseisin, and the statute will protect the disseisor. One who enters upon a vacant possession, claiming for himself upon any pretense or color o'f title, is equally protected with the forcible disseisor. Statutes of limitation would be of little use if they protected those only who could otherwise show an Indefeasible title to tbe land. Hence color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and, of course, adversely to all the world. A person in possession of land, clearing, improving, and building on it, and receiving the profits to his own use, under a claim of title, is not bound to show a forcible ouster of the true owner, in order to evade the presumption that his possession is not hostile or adverse to him. Color of title is received in evidence for the purpose of showing the possession to be adverse, and it is difficult to apprehend why evidence offered, and competent to prove that fact, should be rejected till the fact is otherwise proven.”
In Webber v. Clarke, 74 Cal. 11, 15 Pac. 431 (quoted in 1 Am. & Eng. Enc. Law [2d Ed.] p. S52), it is put thus:
“It makes no difference that tbe grantor had neither title nor possession, provided the deed is not void on Its face, and the parties relying upon it believe in good faith that he has acquired an interest under it.”
Manufacturing Co. v. Brooks, 106 N. C. 107, 11 S. E. 456.
It is insisted, however, that Jarvis and Walker hold under Samuel Spruill, and that they are bound by tbe deeds to claim through him. But the record shows that they claimed title under color, in conveyances of the entire tract from John Sykes, Jr., and Joshua McCoy, and that on possession under this they rely. They cannot connect themselves with Samuel Spruill, and have not done so. Indeed, the only standing in court on this issue on the part of the intervener is that the complainant and defendant have no title from Spruill. If they had such title, the heirs of Spruill could convey nothing. It is contended, however, that Sykes was a tenant in common with Spruill, and that as Jarvis and Walker hold under Sykes their possession must be for 20 years to bar the co-tenant of Sykes. But Jarvis and Walker use the Sykes deed simply to show the extent and character of their possession as color of title. They do not insist upon — they are not called upon to show — any validity in that deed or any right of Sykes to make it. They rely on their possession and claim title against the world. Beside this, they show also as color of title the deed of Joshua McCoy, which, under the testimony, has no validity in the chain of title. And with this deed and the Sykes deed, showing the extent and boundaries of their claim, they set up title by possession for more than seven years. Beside this, if it be held that the Jarvis and Walker title must depend upon the deed of John Sykes, Jr., from this point of view the intervener has no title. That deed was executed on April 22,1851. It is recorded. It conveys the whole tract. McCoy’s deed in the same year conveys the whole tract also. Jarvis and Walker went into actual possession, and held joint possession until Walker’s death, and then Jarvis continued the possession until his death in May, Í878. These deeds of Sykes and McCoy constitute disseisin of Spruill, if he had any right. Clapp v. Bromagham, 9 Cow. 554. The possession of Jarvis and Walker, adverse and continuous thereunder, jointly until 1868, and of Jarvis until 1878, his possession inuring for the benefit of the heirs of Walker,
* In our opinion, the circuit court committed no error in confirming the conclusion of the referee. We express no opinion upon the conclusion expressed by the referee, and confirmed by the court, that the intervener, claiming under Caroline Walker, was estopped from asserting the title of the heirs of Spruill, which he had afterwards purchased. The conclusion reached by the circuit court is affirmed.
On Rehearing.
(May 16, 1900.)
A petition for rehearing has been filed in this case, and has received careful consideration. Two points have been decided in this case: First. That in a bill for partition, in which the title of the complainant seeking partition is not denied, and only the quantum of his estate is disputed, there- is no reason for ordering an issue at law, or for suspending the cause in equity until an action at law has been had, for the purpose of trying title. It being admitted that complainant has title, the jurisdiction of the court cannot be disputed. Second. When .a party is permitted to intervene in a suit for partition, because he claims to hold an estate in common with the other parties to the suit, he cannot in that suit set up a title adverse to the common title. To do this he must proceed in an independent action at law. The East Coast Cedar Company filed its bill against the Richmond Cedar Works, seeking partition of certain lands in the state of North Carolina, in which the parties complainant and defendant were tenants in common. They claim these lands- under mesne conveyances from the heirs of Bannister Jarvis- and Levy Walker, who had held the tract of land sought to be partitioned as tenants in common. The purpose of the suit was the partition of the Jarvis and Walker title. After this suit was instituted, William A. West, the appellant, sought to intervene therein. He- could do so only because of his claim to represént .a portion of the Walker interest as alienee of Caroline Walker, one of the heirs of Levy Walker. Except for his claim as tenant in common with the other parties to the suit in the Jarvis-Walker lands, he could have had no standing in a suit in equity for partition of this title. ■' Proceedings for partition are not appropriate for a contest in respect to title. McCall v. Carpenter, 18 How. 297, 15 L. Ed. 389. Had he claim in this land from an adverse source, his remedy was at law, in an action to try the title. His prayer to intervene was allowed. He did intervene and filed- his answer, claiming a large part of the land. He based his claim upon the assertion that Jarvis and Walker were not sole owners of the tract sought to be partitioned, but that there was an outstanding adverse title in one Spruill to the one-third of this tract, which title, he averred, was now in him. The court below held, in effect, that the proceeding before it was the partition of the Jarvis-Walker title; that to- this suit only those persons claiming as tenants in common under that title were necessary, parties; that the intervener had been admitted'only, because he claimed through an heir of Walker; and