Wilson v. Le Moyne

• Citation: 204 F. 726
• Decision Date: 06 March 1913
• Docket Number: 1,118.
• Parties: WILSON v. LE MOYNE.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

204 F. 726

WILSON v. LE MOYNE.

No. 1,118.

United States Court of Appeals, Fourth Circuit.

March 6, 1913

This is an action at law. The plaintiff in error was the plaintiff below. On March 26, 1906, John V. Le Moyne, a retired lawyer then about 76 years old, executed and delivered at Baltimore Md., in consideration of the payment to him of $14,000 cash a deed releasing and quitting claim unto one George B Wilson, with special warranty, all the right, title, and interest in two tracts of land lying in Wythe and Grayson counties, Va., conveyed to said Le Moyne by a deed of November 2, 1892, from Benjamin E. Green and wife and by deed of November 4, 1892, from David W. Armstrong; the premises conveyed in said deed from said Armstrong to the party of the first part being described as follows: 'A tract of 33,000 acres granted to James Swan by the state of Virginia August 27, 1795, and a tract of 150,000 acres granted by the state of Virginia to George Lawman on July 13, 1796. At the time the deed above mentioned was made, Le Moyne delivered to Samuel J. Randall, the agent of Wilson, the two deeds therein mentioned. The deed from Armstrong to Le Moyne is a deed of special warranty, conveying the grantor's right, title and interest in the above-mentioned two tracts of land. It contains no recitals or other indication of the source of title in Armstrong. In his testimony Le Moyne said that he had paid Armstrong about $5,000 for this conveyance and the conveyance from Green, which was obtained by Armstrong. In the deed from Le Moyne to Wilson, it is said that this deed from Armstrong was duly filed for record in Wythe county, Va., in 1892, and in Grayson county in 1893.

The deed from Green and wife to Le Moyne reads as follows: 'Whereas, Darius B. Holbrook and Elizabeth T. Holbrook, his wife, did, by a certain deed dated and executed on the 20th day of August, 1855, convey to the said Benjamin E. Green and to Othniel De Forest, and to the survivor of them, as trustees for the Virginia and Kentucky real estate trust fund, a large quantity of lands, aggregating some 2,552,304 acres, situated in the aforesaid states of Virginia and Kentucky, and being the lands which had been conveyed by James Swan, of Massachusetts, to Samuel Allison, of Philadelphia, by a deed dated August 30, 1830; and whereas, by reason of the great lapse of time, the condition of the said lands, and other impediments, it has been heretofore impracticable to carry said trust into beneficial effect, and the said real estate trust fund is largely indebted to said Benjamin E. Green for services rendered and money advanced; and whereas, in consequence of the death of the said Othniel De Forest, the said Benjamin E. Green has become and is the sole survivor of the trustees nominated in the said deed, and as such survivor vested with the legal title in and to the lands conveyed by the said deed; and whereas, in consequence of the death of said Darius B. Holbrook and his wife, and in pursuance of the terms of his will, all the right, title, and interest of the said Holbrook in and to the said lands passed to and became vested in his daughter, Caroline E. Von Roques, and in trustees for her benefit; and whereas, in pursuance of certain deeds and in trustees executed by the said Caroline E. Von Roques and her husband, and by the trustees under the aforesaid will of Holbrook, all the right, title, and interest of the said Holbrook has been conveyed to the said John V. Le Moyne, party of the second part herein: Now, in consideration of the premises, and of the sum of one dollar cash in hand paid to them, the said parties of the first part do hereby grant, convey, remise, release, and quitclaim unto the party of the second part, his heirs and assigns, forever, all the right, title, and interest of whatsoever kind that may be vested in them, the said parties of the first part, and in the said Benjamin E. Green, as trustee or otherwise, in and to the lands aforesaid in the said state of Virginia, or in West Virginia, and in and to each and every tract, parcel, and piece thereof, to have and to hold the same unto the said party of the second part, his heirs and assigns, forever. And the said parties of the first part will forever warrant and defend the title to the said lands against the claims of any and all persons claiming by, through, or under them, or either of them, and against the claims of no other person whatsoever.'

According to the recitals in the deed from Le Moyne to Wilson, this deed from Green to Le Moyne was filed for record in Wythe and Grayson counties at the same time that the Armstrong deed was filed. So far as the record shows, these deeds from Armstrong and Green were the only muniments of title that Le Moyne had or that he had ever seen. Some time prior to 1906 Mr. Samul J. Randall, a lawyer living in Philadelphia, who had been employed by certain creditors of the so-called Swan estate, was informed that Le Moyne claimed some interest under the 'Allison title' in the two above-mentioned large tracts of land in Virginia, which were also claimed by the Swan estate. With knowledge that there were in existence several conflicting claims to these lands, Randall in January, 1906, went to Baltimore, where Le Moyne lived, to ascertain if he could prevail upon him to join in an effort to vest in some trustee for the common benefit all of the claims of title derived or claimed to be derived from Swan to the lands in question. Le Moyne refused to become a party to Randall's plan, and shortly thereafter, Randall, acting for George B. Wilson, a retired real estate dealer of Philadelphia, proposed to Le Moyne that he sell his interest in the lands to Wilson. After some negotiation and haggling, a sale at the price of $14,000 cash was made, and the deed of March 26, 1906, from Le Moyne to Wilson, supra, was executed and delivered.

In May, 1911, Wilson brought this action (tendering with the declaration a reconveyance to Le Moyne) to recover the purchase money and interest, on the ground that the purchase had been induced by fraudulent misrepresentations by Le Moyne as to his title to the lands conveyed. Later an amended declaration was filed, in which the allegations as to fraud are confined to a charge that Le Moyne falsely represented that he owned the 'Allison title' to the lands in question. Pleas of general issue and of the three-year statute of limitation were filed. Plaintiff thereupon, replying generally to the tender of general issue and to the plea of limitations, declared 'that he did not, by reason of defendant's fraudulent concealment, discover defendant's fraud and misrepresentations until within three years before the commencement of this suit. ' The defendant filed a rejoinder, denying the truth of the replication as to the alleged fraudulent concealment by the defendant. Upon the conclusion of the testimony the trial court, after refusing a prayer by the defendant for an instruction that there had been no sufficient evidence of fraud by the defendant, granted an instruction as follows: 'The court instructs the jury that there is in this case no legally sufficient evidence that the plaintiff had been kept in ignorance of the alleged deceit by the fraud of the defendant until within three years of the bringing of this suit, and their verdict must be for the defendant. ' Verdict having been accordingly rendered for the defendant, judgment was entered, and the plaintiff below sued out his writ of error, which is now prosecuted by his executor.

At this point it should be said that the so-called 'Allison title' (as appears from the recitals in a deed from Darius B. Holbrook and wife to Green and De Forest, trustees) is a claim derived by deed of 1830 from James Swan to Samuel Allison, subsequently conveyed by deed of 1838 from Allison to Darius B. Holbrook. Evidence offered by the plaintiff tended to show that the trustees of the Swan estate had at least some semblance of title under Swan, supposed to have been created by act of the Virginia Legislature, which conflicted with the Allison title; that the trust created by the above-mentioned deed from Holbrook to Green and De Forest had failed; that Green had no power, after the death of De Forest, to convey; that Holbrook's title passed by his will to his wife and to his daughter, Caroline E. Von Roques; and that the conveyance from Armstrong was invalid. The testimony on this last point consisted of a statement by Randall that, when in 1911 an investigation was made, no deed from any one to Armstrong was found of record in either Wythe or Grayson counties, and of the following:

'Plaintiff offered in evidence, as Exhibit No. 4, a certified copy of a decree of the chancery court of the city of Richmond, Va., in the suit of Caroline E. Von Roques against David W. Armstrong, Harrison T. Groom, and others, dated February 3, 1909. Said decree set aside the conveyance of Caroline E. Von Roques, Florence E. Maybrick, and the trustees to Harrison T. Groom of certain lands, including the lands mentioned in the plaintiff's declaration, decreeing that the said Groom in said transactions was acting as a trustee for David W. Armstrong, one of the said defendants, who, at the time of said conveyance and long prior thereto, had been the attorney for said Caroline E. Von Roques, and further decreeing that Hill Montague, a commissioner of said court, should make and execute a conveyance to the said Caroline E. Von Roques and certain trustees of all lands lying in the state of Virginia, including the lands described in plaintiff's declaration, conveyed by said parties and others to the said Groom. Plaintiff offered in evidence, as Exhibit No. 5, a duly certified copy of the last will and testament of Darius Blake Holbrook,

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