Baines v. Clarke

Decision Date05 May 1884
Citation28 L.Ed. 599,4 S.Ct. 671,111 U.S. 789
PartiesBAINES, Adm'r, etc., v. CLARKE and others
CourtU.S. Supreme Court

C. Bogges and S. A. Miller, for appellant.

Wm. Pinckney Whyte, for appellees.

WAITE, C. J.

On the second of February, 1874, John D. Lewis conveyed to George W. Norris and Henry Clarke three certain tracts of land embraced within the exterior boundaries of a survey of 40,000 acres granted by the commonwealth of Virginia to Jacob Skyles on the eleventh of July, 1798. The instrument by which the conveyance was made was signed by both parties, and contained not only a grant of the land, but an agreement on the part of the grantees for the payment of the purchase money. That agreement was as follows: 'The consideration of this deed is five dollars per acre as aforesaid, to be paid as follows: $50,000 in cash, the receipt whereof is hereby acknowledged; $25,000 to be paid on the first day of October, 1874; $25,000 on the first day of April, 1875; $50,000 on the first day of January, 1876; and $50,000, or whatever may be the balance due, on the first day of January, 1877, with legal interest on all the deferred payments from the third day of June, 1873, said interest to be paid semi-annually, commencing on the first day of July, 1874. And it is further understood and agreed by the parties to this deed that an accurate survey of the lands hereby granted shall be made under the direction and superintendence of S. A. Miller, of Charleston, to ascertain the true quantity of lands intended to be granted, such survey to be made by running the exterior lines embracing the said three lots made by Surveyor and Commissioner Thomas S. A. Matthews, previous to the sale, and now of record in the proceedings aforementioned, and as described and set forth in this deed, and in the deed from James M. Laidly, survey commissioner, of himself and said Matthews, under the decrees and orders in said proceedings for the sale of Jacob Skyles' survey of 40,000. And, as it is further known that there are sundry suits pending in the circuit court of Kanawha county between the said John D. Lewis, as defendant, and Hale and McMullin, George Belcher, W. A. McMullin, J. L. McMullin, and George W. Morrison, as plaintiffs, all of which are now submitted to arbitration by an order of said circuit court; it is further agreed that any recovery of ny land within the boundaries aforesaid shall be and constitute no part of the lands herein sold and granted, but be deducted therefrom at the said rate of five dollars per acre, the said John D. Lewis agreeing to use all diligence in the prosecution of said suits, so as to obtain a speedy trial; * * * it is further understood and agreed that the last payment, or balance of $50,000, due first of January, 1877, and interest, is reserved until the decision of said suits, and the ascertainment of quantity; and the said John D. Lewis hereby reserves a claim upon the land hereby granted for the payment of the purchase money, and the interest thereon of all the deferred installments as hereinbefore provided.'

The cash installment of $50,000 was paid, as was also the installment of $25,000 due on the first of October, 1874. Default having been made in the payment of the amount falling due on the first of April, 1875, and the interest maturing July 1, 1875, Lewis filed this bill in the circuit court of Kanawha county, West Virginia, on the seventeenth of August, 1875, to enforce his vendor's lien. The survey made pursuant to the agreement showed that there were within the exterior boundaries of the tracts conveyed 39,000 acres, but it is not claimed that payment is to be made for more than 36,244 acres, the title having failed to all the rest.

The suits pending at the time the sale was made involved the title to 19,716 acres, but of this amount only 165 acres were in the actual possession of any one adversely to Lewis. On the twenty-fourth of November, 1874, the reference which had been made of the suits to arbitration, mentioned in the agreement, was set aside by order of the court, on account of the failure of the arbitrators to act. At the June term, 1875, of the court a special jury was summoned for the trial of the causes on the twenty-second of the month, but, before that day arrived, the court adjourned for the term. In January, 1876, one of the suits was tried, but the jury failing to agree, the suits were all continued. On the thirtieth of May, 1876, another agreement for submission to arbitration was entered into, and on the twenty-fourth of August, 1876, an award was filed, but for some reason it was not confirmed by the court until December, 1877, when judgments were entered in accordance with its requirements. On the twenty-third of January, 1880, the several plaintiffs in the ejectment suits applied to the court of appeals of West Virginia for the allowance of writs of error to review these judgments, but the applications were all refused on that day.

There is in the record evidence of the recovery of a judgment, in the district court of the United States for the district of West Virginia, by Coles P. Huntington, on the thirteenth of October, 1875, against John Lewis Taylor, for the recovery of the possession of 400 acres of land. The judgment was recovered by default, and it does not appear when the...

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