American Ass'n v. Williams

Citation166 F. 17
Decision Date23 December 1908
Docket Number1,817.
PartiesAMERICAN ASS'N v. WILLIAMS et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Jesse L. Rogers, for appellant.

G. W Pickle, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

This is a bill to reform a patent and certain mesne conveyances which follow the erroneous calls of the patent in respect to the description of the lands conveyed, and to cancel a deed from the defendant Williams to his codefendants as a cloud upon the title of the complainant. The bill as amended was dismissed upon several grounds, though, upon critical analysis, they all, in substance, raise the question as to whether the complainant states a case relievable by equity.

Both parties to the controversy claim under the same patent. Complainant's title is as follows: First, a grant made September 13, 1855, by the state of Kentucky to one Levi Harp, being grant No. 3,290; second, a conveyance of the granted lands by the heirs of Levi Harp to one W. D Williams; third, a conveyance from Williams to C. H. Rogers fourth, a conveyance by Rogers to the American Association Limited, a corporation; fifth, a conveyance to the American Association, Incorporated, of all the lands owned by the American Association, Limited, under a decree and sale made in a mortgage foreclosure and winding-up proceeding in the court below.

The defendants, other than W. D. Williams, are alleged to claim under a deed made by W. D. Williams, the grantor in the second link of complainant's claim of title, made long subsequent to the conveyance by Williams to Rogers, under whom complainant holds. The land involved is valuable for coal, and is not, and never has been, within the actual occupation of either party. It lies between the present southern boundary line of the state of Kentucky and a boundary originally claimed by Kentucky some miles south of the true present line. The controversy as to the true line between the two states was adjusted by a compromise agreement between the states of Tennessee and Kentucky of February 2, 1820, and appropriate legislation, by which the present line was recognized as the true boundary between the states, and the right to grant the vacant public lands lying within the contested territory was conceded to the state of Kentucky. 2 Haywood & Cobb's Revisal of Tenn. Laws, 224. The history of this adjustment is found in the case of Sharp v. Van Winkle, 12 Lea, 15, where it was held that this legislative adjustment constituted a grant by the state of Tennessee to the state of Kentucky of all the lands lying in the disputed strip of territory then ungranted by either state, and brought lands held under Kentucky grants made thereafter within the meaning and protection of the statutes of limitation applicable to lands granted by the state of Tennessee. Thus we must, in legal effect, regard the title to this tract of land as originating in the state of Tennessee, the state of Kentucky being the second grantor in the chain of title.

The controversy over the title arises out of a mistake made in the grant to Harp. It is averred that, as required by law and in preparation for the grant, Harp had a survey and plat made of the land for which he intended to seek a patent, and that he had had the line marked upon the ground according to his survey and plat. The second line of the survey was 'north 23 degrees east, 70 poles to a chestnut oak. ' This line in the grant reads: 'north 23 degrees west, 70 poles to a chestnut oak. ' This blunder throws the land described in the grant clear off the surveyed land, so that, if the lines of the grant be run according to courses and distances, it will include a mere fragment of the land actually surveyed and intended to be granted. This mistake was due to an error in the certificate of survey filed by the surveyor. One object of the bill is to have this error in the grant corrected, so that the description will follow the actual survey. It is next averred that Levi Harp died intestate, seised of the lands so granted, and that his heirs conveyed the same to the defendant Williams by a deed referring to the patent by number as the lands therein granted. The bill then avers that Williams, one of the defendants, sold that part of the Harp tract lying 'south of the top of the mountain between Clear fork and Valley creek to one C. H. Rogers. ' This sale was by the acre, and, for the purpose of ascertaining the number of acres, a survey was made. This survey in the main followed the misdescription of the grant. The deed to Rogers gives the erroneous courses and distances of this survey, and covers little or none of the land actually granted to Harp if the error in the Harp grant be corrected by the Harp survey.

It is averred that Williams owned no land other than that he had acquired from the Harp heirs, and that he intended to convey to Rogers the very land which he had acquired from them. That this was his purpose is plainly shown by the fact that he describes the land conveyed as land granted to Harp and by calling for lines of that grant. In addition to the intent shown by these references to the Harp grant, it is averred that Williams in making this conveyance to Rogers was only keeping an agreement, made before he bought from the Harp heirs, to sell to Rogers a part of that tract, and that in a subsequent litigation involving other land he had testified that he had sold the greater part of the Harp tract to C. H. rogers, and that the defendants H. Y. Hughes, J. T. Hughes, and John P. Davis knew that he had so conveyed said lands, and had so testified before they took the deed from him under which they now claim. The deed from Rogers to the American Association, Limited, described the land as in the deed of Williams to Rogers, and the complainant holds the title thus acquired through a mortgage foreclosure and other judicial proceedings upon the equity side of the court below.

The jurisdiction of the court as a court of equity to entertain this as a bill to remove the cloud upon the title of the complainant by reason of the deed of the defendant Williams to his codefendants, H.Y. and J. T. Hughes and John P. Davis, is denied, because the remedy at law is said to be adequate and the complainant not in actual possession of the premises.

The settled rule of the Supreme Court of the United States seems to be that, independently of a statute of the state wherein the land lies, a bill to remove a cloud upon the title of a complainant will not lie where he, the complainant, is not in actual possession of the premises, and that such a bill must show a legal title and actual possession. Only in such circumstances will a bill lie as a bill quia timet to protect and quiet such possession by the cancellation of an instrument which may disturb such possession or cloud the legal title. Frost v. Spitley, 121 U.S. 552, 7 Sup.Ct. 1129, 30 L.Ed. 1010; Dick v. Foraker, 155 U.S. 404, 414, 415, 15 Sup.Ct. 124, 39 L.Ed. 201; United States v. Wilson, 118 U.S. 86, 6 Sup.Ct. 991, 30 L.Ed. 110. But where by a local statute a bill in equity will lie to remove a cloud independently of possession, the enlarged equitable right thus created may be enforced by an equity court of the United States where there exists the requisite diversity of citizenship or some other ground of federal jurisdiction. Holland v. Challen, 110 U.S. 15, 3 Sup.Ct. 495, 28 L.Ed. 52; Wehrman v. Conklin, 155 U.S. 314, 15 Sup.Ct. 129, 39 L.Ed. 167. Section 5043, Code Tenn. 1884, confers upon the Tennessee chancery courts jurisdiction in all actions at law except actions for unliquidated damages. Under this statute a Tennessee chancery court may entertain a straight bill of ejectment. Frazier v. Browning, 11 Lea(Tenn.) 253. But this statute cannot enlarge the equitable jurisdiction of the courts of the United States sitting in Tennessee so as to justify them in trying cases properly justiceable in courts of common law. United States v. Wilson, 118 U.S. 86, 90, 6 Sup.Ct. 991, 30 L.Ed. 110.

If the complainants have an adequate remedy at law, they must, under section 723, Rev. St. U.S. (U.S. Comp. St. 1901, p. 583), resort to a court of law. United States v. Wilson, 118 U.S. 86, 6 Sup.Ct. 991, 30 L.Ed. 110.

Section 3231, Code Tenn. 1858, authorizes an action of ejectment by one having the legal title and the right of immediate possession against one not in possession but claiming an adverse title. That statute confessedly enlarges the remedy at common law, for at common law the defendant must be in actual possession of some part of the premises, but it does not give the equitable remedy given by the statutes of many states, notably the statutes of Kansas, Nebraska, and Iowa to file a bill to remove a cloud from the title of one not actually in possession. But if this bill seeks some relief, which is within one of the established heads of equitable jurisdiction, it will be entertained, and if an equity court has jurisdiction of a cause for one purpose it may grant full relief rather than send the complainant to a court of law for part of his relief. Peck v. Ayers & Lord Tie Co., 116 F. 273, 275, 53 C.C.A. 551. The real question then is, whether, upon the facts stated in the bill and the prayers for special and general relief, the complainant may maintain its bill for any purpose, the remedy at law in that respect not being full and adequate. Among other matters, complainant seeks the reformation of the grant to Levi Harp so that it shall conform in description to the survey made by Harp upon which the grant issued. It also seeks to reform and correct the deed from Williams to Rogers, and from Rogers to the predecessor of complainant in title, so that they shall conform to the grant as corrected...

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    ... ... United States v. Wilson, 118 U.S ... 86, 89, 6 Sup.Ct. 991, 30 L.Ed. 110; American Association ... v. Williams (6th Cir.) 166 F. 17, 21, 93 C.C.A. 1; ... Butterfield v. Miller ... ...
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