Williams v. American Ass'n, Inc.

• Citation: 197 F. 500
• Decision Date: 26 June 1912
• Docket Number: 2,184.
• Parties: WILLIAMS et al. v. AMERICAN ASS'N, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

197 F. 500

WILLIAMS et al. v. AMERICAN ASS'N, Inc.

No. 2,184.

United States Court of Appeals, Sixth Circuit.

June 26, 1912

G. W Pickle, of Knoxville, Tenn. (H. Y. Hughes, J. T. Hughes, John P. Davis, and Pickle, Turner & Kennerly, on the brief), for appellants.

G. W Montgomery, of Tazewell, Tenn. (Frank Montgomery, on the brief), for appellee.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

This case has already been before this court upon review of a decree sustaining a demurrer to the bill. In the opinion of Judge (now Mr. Justice) Lurton on the former review the bill is described as one '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.' 166 F. 17, 93 C.C.A. 1. As stated in that opinion, the complainant's title consists of, '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; 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. ' American Ass'n v. Williams, 166 F. 17, 18, 93 C.C.A. 1, 2.

The fundamental error sought to be corrected is that the second call of the patent from the state of Kentucky to Harp reads, 'thence north 23 degrees west, 70 poles to a chestnut oak,' instead of 'north 23 degrees east, 70 poles to a chestnut oak,' as actually surveyed on the ground preliminary to application for patent, and as shown by the duly filed plat. The mesne conveyances specifically sought to be reformed are those from Williams to Rogers and from the latter to the American Association, Limited.

The bill prays generally that Williams be required, on receiving a certain sum in payment therefor, to convey to complainant the land in question by its correct description, by way of specific performance of an alleged contract between Williams and Rogers; the misdescription in the deed thereunder being alleged to have resulted from a mutual mistake of fact made by those parties. The bill also prays that complainant be decreed to have title to the land under the reformed description. It is alleged that the defendants Hughes and Davis took conveyance from Williams with full knowledge of the facts alleged in the bill, and stand with respect to the title in Williams' shoes.

The bill was demurred to (so far as the causes are here material) (a) because barred by the Tennessee statutes of limitation; (b) on account of delay and laches; (c) on the ground that the bill states no case for reformation; and (d) that no case for specific performance of the contract between Williams and Rogers is stated. This court reversed the decree of the Circuit Court which dismissed complainant's bill, and remanded the cause to the Circuit Court with directions to overrule the demurrer.

The defendants thereupon answered the bill, admitting the discrepancy referred to between the description of the tract in the patent and the actual survey made on the ground; and admitting that, by virtue of the Harp grant and the conveyance to Williams, the latter became 'by law invested with the title to the tract of land embraced in the actual survey and plat'; and that defendants Hughes and Davis have no greater rights than Williams, they standing only in his shoes. The answer denies any mistake of fact in the description of the tract conveyed by Williams to Rogers, and alleges that such description accorded with the intention of the parties, and denies the claimed right of reformation and specific performance. The specific contentions of the defendants in these respects will be more fully stated hereafter. The defenses of laches and of the statutes of limitation are also urged. Upon final hearing on pleadings and proofs (the facts being largely agreed upon by written stipulation) decree was entered for complainant, reforming the description in the complainant's several title papers in accordance with complainant's contention, and quieting the latter's title to the land; and setting aside as a cloud thereon the conveyance by Williams to his codefendants Hughes and Davis, upon the payment by complainant into court, for their benefit, of a certain sum representing the difference of contract price between Williams and Rogers of the acreage covered by the deed between these parties and the acreage covered by the reformed description. From this decree appeal is taken.

1. The alleged mutual mistake of fact.

The land covered by the reformed descriptions in the conveyances as decreed by the court below is that portion of the tract acquired by Harp under grant No. 3,290 lying southeast of the crest of the mountain dividing Bear creek from Clear fork. This portion, according to the survey made on the ground by Harp before he obtained his grant, contains 38 acres. Appellants concede that all question of the reformation of the grant from the state of Kentucky to Harp, its acquisition, by descent, by the latter's heirs upon his death intestate, and the deed from the Harp heirs to Williams, has been eliminated from the present record, and that Williams must be held to have had perfect title to the tract in question at the time he made his conveyance to Rogers. This concession is made, not only because of the decision of this court upon the former appeal, but because the appellants Hughes and Davis claim under Williams, and so are estopped to deny his title. By the settled law of Tennessee, in case of discrepancy between the calls contained in the patent and those in the survey actually made upon the ground, the latter control, and the grant will be held to convey the land actually surveyed, although the calls for courses and distances fail to cover any part of the land so surveyed. Staub v. Hampton, 117 Tenn. 706, 101 S.W. 776; American Ass'n v. Williams, supra, 166 Fed.at page 24, 93 C.C.A.at page 8, and cases there cited.

Upon the facts alleged in this bill the court held upon the former hearing that a mutual mistake of fact was made by Williams and Rogers with respect to the description of the land conveyed by the former to the latter, and that Williams intended to sell, and Rogers intended to buy, the 38-acre tract in question. It is clear that, if the proofs are in entire harmony with the allegations of the bill, the decision upon the former hearing is an adjudication of the rights of the parties to that extent. Western Union Telegraph Co. v. City of Toledo (C.C.A. 6) 121 F. 734, 736, 5, C.C.A. 16; Taenzer v. C.R.I. & P. Ry. Co. (C.C.A. 6) 191 F. 543, 547, 112 C.C.A. 153. The bill alleges, however, that Williams, before conveying to Rogers, had entered into a contract with the latter to convey all the said tract of land at a price of $8 per acre upon actual survey thereof, but after the making of the contract, and before execution of the deed, an effort was made to survey the tract, and that conveyance was made in accordance with the survey; both Williams and Rogers assuming that the land had been correctly surveyed, and was being conveyed according to what was then thought to be the correct boundaries thereof. In the former opinion of this court this survey was treated as having been made by Williams. Defendants insist that the proofs fail to sustain the allegations of the bill with respect either to the contract to sell, Williams' responsibility for the survey, or the alleged mutual mistake of fact. The decision upon the demurrer is obviously not an adjudication upon a case materially different from that alleged in the bill, or as construed by the court in deciding the demurrer. As will be seen, the case made by the proofs in some respects from that considered by the court on the former review.

The proofs show that in the year 1888 Williams made a contract with Rogers and others for the sale, at $8 per acre, of all the land he owned in that section of the country, the acreage to be ascertained by an actual survey, and that at the time Williams claimed he owned the title acquired by Harp, by virtue of the survey and grant in question, lying southeast of the crest of the mountain referred to; that the conveyance from the Harp heirs, which was obtained by Williams to enable him to carry out his contract with Rogers, referred to the tract in question as 'the tract of which Levi Harp died seised and possessed, fully described in grant No. 3,290 dated September 13, 1855, from the state of Kentucky to Levi Harp, for 50 acres'; that both Williams and Rogers were then ignorant of how the tract was located upon the ground, either by Harp's survey or as described in his grant; that Rogers was buying the land to sell to the American Association, Limited, having at that time a contract with that company to sell to it large tracts of land in that section; that Merwin, a surveyor in the regular employment of the Association, undertook to survey out the land acquired by Harp under this grant, and for that purpose was furnished with the grant or a copy thereof; that Williams turned over to Rogers his title papers, to enable the latter to ascertain what land he actually did own, and in order that it might be 'surveyed on investigation'; that neither Williams nor Rogers assisted in the survey, Williams having nothing to do with the employing of the surveyor, and paying no expenses of the survey, but knowing...