King v. Mullins

• Citation: 171 U.S. 404,43 L.Ed. 214,18 S.Ct. 925
• Decision Date: 31 May 1898
• Docket Number: No. 157,157
• Parties: KING v. MULLINS et al
• Court: United States Supreme Court

171 U.S. 404

18 S.Ct. 925

43 L.Ed. 214

KING

v MULLINS et al.

No. 157.

May 31, 1898.

Maynard F. Stiles, for plaintiff in error.

J. H. Ferguson, W. E. Chilton, Z. T. Vinson, and Holmes Conrad, for defendants in error.

Mr. Justice HARLAN delivered the opinion of the court.

This action of ejectment was brought to recover that part lying in the state of West Virginia of a tract of 500,000 acres of land patented by the commonwealth of Virginia in 1795 to Robert Morris, assignee of Wilson Cary Nicholas.

The persons sued were very numerous, but M. B. Mullins, Alexander McClintock, and John McClintock having elected to sever in their defense from other defendants, the case was tried only as between them and the plaintiff, King.

At the trial in the circuit court the plaintiff introduced in evidence the patent to Morris, showing that the lands therein described were granted without conditions. Evidence was also introduced tending to show that by sundry mesne conveyances and legislative and judicial proceedings the title of Morris became vested in 1866 in Robert Randall, trustee; in John R. Reed, trustee, on the 29th day of June, 1886; and through sundry mesne conveyances by Reed, trustee, David W. Armstrong, and John V. Le Moyne in the plaintiff, King, on the 27th day of December, 1893.

The defendants resisted the claim of the plaintiff upon the general ground that prior to the date of the deed from Le Moyne the lands embraced in the patent were absolutely forfeited to the state, and were so forfeited when the present action was instituted.

To show an outstanding title in the state to the lands in dispute, by forfeiture, the defendants read in evidence a certificate of the auditor of the state, dated October 29, 1895, showing that neither Randall, trustee, nor Reed, trustee, nor Le Moyne, King, Armstrong, and others named had entered on the land books of Wyoming, McDowell, Logan, Boone, or Mingo counties, or either of them, for the years 1883, 1884, 1885, 1886, 1887, 1888, 1889, 1890, 1891, 1892, 1893, and 1894, or either of them, a tract of 500,000 acres of land, nor paid taxes upon the land for any of those years. The certificate further stated that the tract of 500,000 acres was not entered on the books of the assessor in any of those counties for any of the years named, that no land was entered on the assessor's book in the name of any of said parties for any of those years, and that none of the above persons are charged on the land books with state taxes on any part of those lands.

We assume from the record that the greater part, at least, of the lands in West Virginia embraced in the Morris patent, are in the above-named counties.

The defendants, further to maintain the issues on their part, offered in evidence:

(1) A certified copy of the order of the circuit court of Wyoming county, W. Va. (in which county part of the original tract was situated), showing the appointment and qualification on the 18th day of April, 1890, of E. M. Senter, commissioner of school lands for that county.

(2) Also, the annual report made by that officer to the circuit court of Wyoming county, March 31, 1894, and filed, of all tracts and parcels of land liable to be sold for the benefit of the school fund, as required by section 5 of chapter 105 of the Code of West Virginia, as amended by the act of the legislature of 1893 (chapter 24). That report gives the list of various tracts in the county of Wyoming 'heretofore purchased for the state at sales thereof for delinquent taxes, and not redeemed within one year, or within the time required by law, made up from the records in the auditor's office, and cet ified by the auditor to the clerk of the circuit court to be sold by the commissioner of school lands.' The report also states: 'Said commissioner of school lands would furthere report that in the annual report of the commissioner of school lands for the year 1889 there was reported for sale, for the benefit of the school fund, 50,000 acres, forfeited in the name of the Pittsburgh National Bank of Commerce, and sold on the ___ day of _____ for the nonpayment of the taxes due thereon for the years 1883 and 1884, and purchased by the state. * * * The commissioner of the circuit court, who was appointed to report upon proceedings heretofore instituted to sell the lands of said Pittsburgh National Bank of Commerce and Smith and Fougeray, reported them a part of 500,000-acre survey, Robert Morris patent, known as the 'Robert E. Randall Land,' and that a suit was pending in the circuit or district court of the United States for the district of West Virginia, and that proceedings to sell the same under said formal proceedings had been enjoined. Said commissioner is advised that an error was pending said matter, and that no suit was pending in said United States court with reference to said 500,000-acre survey. The said commissioner of school lands would further report that it has come to his knowledge from Henry C. King, the present owner and claimant thereof, that a tract of 500,000 acres of land, lying partly in this county, and partly in the counties of Logan and McDowell, and the greater portion in the states of Virginia and Kentucky, was at the April term, 1883, of the circuit court of this county, redeemed from a former forfeiture by Robert E. Randall, trustee, and all the taxes thereon paid, prior to and including the year 1883; that since said redemption the said land has been omitted from the land books of this county for five consecutive years, to wit, for the years 1884, 1885, 1886, 1887, and 1888, and thereby the same has been forfeited to the state in the name of Robert E. Randall, trustee. The said commissioner of school lands further reports that each of said tracts hereinbefore mentioned are liable to be sold for the benefit of the school fund of this state on account of the forfeiture herein stated. All of which is respectfully submitted.'

(3) A certified copy of an order of the circuit court of Logan county, W. Va., made April 1, 1889, showing the appointment of U. B. Buskirk as commissioner of school lands of that county, and his annual report, as such commissioner, of all tracts and parcels of land in Logan county theretofore reported for sale for the benefit of the school fund to the clerk of the circuit court of that county, under sections 1 and 2 of chapter 105 of the Code of West Virginia, and all lands in that county, not theretofore reported, which in his opinion were liable to sale for the benefit of that fund.

(4) A certified copy of an order of the circuit court of Logan county, W. Va., ordering suit to be brought in the name of the state for the sale of the lands mentioned in the report of Commissioner Buskirk.

The defendants having rested their case, the plaintiff, to prove that no forfeiture of the land or outstanding title thereto existed, or was claimed by the state of West Virginia, and that there was no record of any forfeiture where the same would be found, if it existed, introduced and read in evidence a certificate of the auditor of the state, dated October 30, 1895, certifying that he had carefully examined the record books of forfeited lands returned and kept in his office, as required by law, for the counties of Logan, Mingo, Wyoming, and McDowell, W. Va., from and including the year 1883 to date, and there did not appear on such books a tract of 500,000 acres of land, or any part thereof, or any other tract forfeited for any cause, in the name of either Robert E. Randall, Robert E. Randall, trustee, A. D. Maupertures, John R. Reed, John R. Reed, trustee, John V. Le Moyne, David W. Armstrong or Henry C. King; that there were no lands from any of those counties entered on the record of forfeited lands of his office for either of those years in the name of either or any of those parties; that he had carefully examined the record books of delinquent lands returned and kept in his office, as required by law, for the counties of Logan, Mingo, Wyoming, and McDowell, W. Va., from and including the year 1883 to date, and there did not appear on such record books a tract of 500,000 acres of land, or any part thereof, or any other tract, delinquent for any cause, in the name of either Robert E. Randall, Robert E. Randall, trustee, A. D. Maupertures, John R. Reed, John R. Reed, trustee, John V. Le Moyne, David W. Armstrong, or Henry C. King; and that there were no lands from any of those counties entered on the record of delinquent lands of his office for either or any of those years in the name of either or any of those parties.

The plaintiff further offered evidence tending to prove that all taxes of the state of West Virginia charged or chargeable upon said tract of land, up to and including the year 1883, had been fully paid and discharged by Robert E. Randall, trustee, under whom plaintiff claimed title, and proved further that plaintiff was a purchaser of said tract, for a valuable consideration, and without knowledge or notice of any alleged forfeiture thereof, or outstanding title thereto in West Virginia, or of any of the facts set out in the auditor's certificate, shown and referred to in plaintiff's bill of exceptions, except such notice as the land books and records duly kept disclosed.

At the instance of the defendants the court instructed the jury 'that the title to the land claimed by the plaintiff, granted to one Robert Morris by the commonwealth of Virginia, by patent dated June 23, 1795, was (prior to the date of the deed made by John V. Le Moyne to Henry C. King, under which the plaintiff now claims), under the provisions of the constitution of the state of West Virginia, forfeited to and vested in said state, and was so forfeited at the time this suit was instituted, and that, therefore, the plaintiff took and has no title to said land; and the jury are further instructed to render a verdict in favor of the defendants.'

To this instruction the plaintiff objected, upon...