Virginia & West Virginia Coal Co. v. Charles

• Citation: 251 F. 83
• Parties: VIRGINIA & WEST VIRGINIA COAL CO. v. CHARLES.
• Decision Date: 14 July 1917
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

251 F. 83

VIRGINIA & WEST VIRGINIA COAL CO. v. CHARLES.

United States District Court, W.D. Virginia.

July 14, 1917

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On August 30, 1833, the executors of Wm. Lamb conveyed the above-mentioned tract of land, as well as many other tracts and lots which had been purchased by Lamb at tax sales held by Taylor, collector, to Joseph Hagan and Sarah Purcell. On September 13, 1834, Joseph Hagan and Sarah Purcell conveyed to Geo. W. Hopkins 2,850 acres, a part of the 200,000-acre tract. On July 9, 1835, Hopkins reconveyed the 2,850 acres to Hagan and Purcell. Between 1834 and 1838 Sarah Purcell executed three powers of attorney authorizing sales of her interest in the 200,000-acre tract; but no sales appear to have been made. In 1835 Joseph Hagan instituted a suit against Sarah Purcell for a partition, inter alia, of the 200,000-acre tract, which was eventually granted. Some time prior to September 26, 1836, Joseph Hagan and Sarah Purcell were the plaintiffs in 9 caveat proceedings in the circuit superior court of Tazewell county, brought against as many proposing junior patentees of parts of the 200,000-acre tract. These suits were continued from time to time, and on April 23, 1844, they were dismissed, without trial, at the cost of the plaintiffs. On February 7, 1839, Sarah Purcell conveyed her part of the land to James Culbertson. In 1842 or 1843 Joseph Hagan and James Culbertson made, or at least attempted to make, a survey of the Smyth and Banks tract. While this was being done Culbertson made an agreement with one Edward Collins who was in adverse possession of a small part of the Culbertson tract to the effect that Collins, if Culbertson's title were subsequently held by the courts to be valid, should say that he had been holding possession for Culbertson and Hagan. This claim of possession, which continued until about 1855, is hereinafter discussed. As a result of a chancery suit between Joseph Hagan and James Culbertson, the latter's interest in the 200,000-acre tract was conveyed, on October 6, 1857, by Morison, commissioner, to Joseph Hagan. On April 4, 1871, Joseph Hagan conveyed the land to Patrick Hagan. From the recitals in a deed from Dennis, clerk, to Buchanan Company, to be mentioned later, it appears that some time prior to 1876 the 200,000-acre tract was transferred on the assessment list ('land book') from Patrick Hagan to Frederick Pearson. An offer by the plaintiff here to introduce in evidence (Exhibit 53) the record of a chancery suit, brought by Buchanan Company against Patrick Hagan and the nonresident heirs at law of Frederick Pearson, to establish the fact that Patrick Hagan had conveyed the land in 1874 to Pearson, which deed and the record thereof had been destroyed by fire, was overruled. In 1878 Frederick Pearson instituted in this court at Abingdon some 47 actions of ejectment against as many adverse claimants of parts of the 200,000-acre tract. None of these actions was ever brought to trial, although the evidence indicates that Pearson's attorneys made great efforts to find evidence sustaining the validity of the tax deed from Taylor to Lamb. In 1907 these actions were all dismissed. On November 8, 1883, Patrick Hagan, making no mention therein of a previous conveyance, conveyed the 200,000-acre tract to Frederick Pearson. The land was returned in the name of Pearson as delinquent for the taxes of 1876, as well as of subsequent years, to and including 1883. In 1886 the land was offered for sale because of these delinquencies and was bid in by the commonwealth. It was later conveyed to the Buchanan Company by Dennis, clerk. A part of the land was conveyed by the Buchanan Company to the plaintiff by deed of December 27, 1913, and the remainder by deed of April 2, 1914-- both deeds having been made while the Virginia statute of March 13, 1912 (Acts 1912, p. 524), making ancient tax deeds prima facie evidence of the validity of the proceedings, was still in force.

No possession, except the claim of possession by Collins from 1842 to 1855, of any part of the 200,000-acre tract was had by or for any claimant under the Smyth and Banks patent. In 1906 the Buchanan Company employed one Raines as its agent. Raines lived on a small parcel of land, within the Smyth and Banks tract, belonging to his wife, apparently holding under a junior title, and acted as the agent of the company until 1910. On February 1, 1796, Richard Smyth, in his own behalf and as attorney in fact for Henry Banks (the deed reciting a power of attorney under date of December 2, 1795), conveyed the 200,000-acre tract to Abraham Moorehouse. The power of attorney was not proved. On February 2, 1796, Moorehouse conveyed a portion of the 200,000 acres, containing 102,313 and a fraction acres, to George Ralph. The effort of the defendant to show a subsisting and enforceable outstanding title was not successful. Payments of state and county taxes by the successive claimants under the Taylor tax deed were often partial and very irregular. The facts are too voluminous to justify detailed statement. During considerable periods no taxes were paid. At very irregular intervals some redemptions from delinquent taxes were made. Neither Pearson nor his heirs ever paid any taxes whatever.

The defendant's chain of title, and the facts which raise some novel and interesting questions under the defense of adversary possession, will be hereafter set out. The location of the exterior lines of the Smyth and Banks patent were guessed at by several witnesses, who judged mainly from the location of the lands claimed by the numerous defendants in this and the other allied actions of ejectment brought in this court by this plaintiff. The patent, thus located, covers a very large part of Buchanan county, including the county seat, and contains apparently much more than 200,000 acres. Many of the defendants in these actions are the grandchildren of early settlers, who claimed partly under junior patents and largely under 'court rights'--statutory judicial grants. From the evidence offered in behalf of the defendant it appears that during practically a century the land covered by the Smyth and Banks patent has been gradually settled by adverse claimants. Homes, schoolhouses, churches, and roads, many of them long antedating the memory of the oldest inhabitants, have been built. While the best informed of these adverse claimants probably knew, at least vaguely, of the existence of the claim under the Smyth and Banks patent, it has been seemingly for many years, and until recently, regarded as either abandoned or at least as invalid.

The third section of the Virginia act of March 22, 1842, hereinafter referred to, reads as follows:

3. And be it further enacted, that all the right, title and interest, which shall be vested in the commonwealth in any lands or lots lying west of the Alleghany Mountains, by reason of the nonpayment of the taxes heretofore due thereon or which may become due on or before the first day of January next, or of the failure of the owner or owners thereof to cause the same to be entered on the books of the commissioner of the proper counties, and have the same charged with taxes according to law, by virtue of the provisions of the several acts of assembly heretofore enacted, in reference to delinquent and omitted lands, shall be and the same are hereby absolutely transferred to and vested in any person or persons (other than those for whose default the same may have been forfeited, their heirs or devisees), for so much as such person or persons may have just title or claim to, legal or equitable, claimed, held or derived from or under any grant of the commonwealth, bearing date previous to the first day of January eighteen hundred and forty-three, who shall have discharged all taxes, duly assessed and charged against him or them upon such lands, and all taxes that ought to have been assessed or charged thereon, from the time he, she or they acquired title thereto, whether legal or equitable: Provided, that nothing in this section contained, shall be construed to impair the right or title of any person or persons, who shall bona fide claim said land by title, legal or equitable, derived from the commonwealth, on which the taxes have been fully paid up according to law, but in all such cases the parties shall be left to the strength of their titles respectively. ' Acts 1841-42, p. 13; Hutchinson, Land Titles, pp. 92, 93.

The great length of the following opinion is due chiefly to an intent, fully shared in by counsel, to make of this, if possible, a test case.

S. B. Avis, of Charleston, W. Va., and Jeffries & Jeffries, of Nor folk, Va., for plaintiff.

E. M. Fulton, of Wise, Va., Wm. H. Werth, of Tazewell, Va., Chase & Daugherty, of Clintwood, Va., Greever, Gillespie & Devine, A. S. Higginbotham, Geo. W. St. Clair, and Geo. C. Peery, all of Tazewell, Va., C. C. Burns, of Lebanon, Va., J. H. Stinson, of Grundy, Va., Geo. E. Penn, of Abingdon, Va., and M. O. Litz, of Welch, W. Va., for defendant.

McDOWELL, District Judge (after stating the facts as above).

This action of ejectment, which by agreement involves only one of several tracts of land claimed by the defendant, is a branch of an action brought by the plaintiff against Fairmount-Buchanan Company and some 1250 other defendants; and the main action is one of 17 similar actions of ejectment brought in this court at...