Elder v. McClaskey

• Decision Date: 13 May 1895
• Docket Number: 224.
• Citation: 70 F. 529
• Parties: ELDER et al. v. McCLASKEY et al.
• Court: U.S. Court of Appeals — Sixth Circuit

70 F. 529

ELDER et al. v. McCLASKEY et al.

No. 224.

United States Court of Appeals, Sixth Circuit.

May 13, 1895

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

This is an appeal from a decree of the circuit court for the Southern district of Ohio ordering the partition and sale of a tract of 161 1/4 acres--a quarter section-- on Price's Hill, a suburb of Cincinnati. The action was begun on the 4th day of December, 1886, in the superior court of Cincinnati, by Sarah McClaskey and 3 others, against more than 200 defendants. On the petition of two of the defendants the whole cause was removed to the court below under the second section of the removal act of 1875, on the ground that there was a separable controversy between the removing defendants and the complainants, who were citizens of different states. To conform to the chancery practice, the complainants filed an amended bill in the circuit court. It averred that the complainants were seised of an undivided one-fifth in fee in the tract in controversy, which had been subject to the life estate of one Maria Bigelow until her death, on August 3 1860, when their right of entry accrued. It averred that the tract was divided into many pieces, and these were occupied by the several defendants in possession, respectively, each of whom was seised of an undivided 25/35 part of the tract of which he had possession, and that certain other named defendants, not in possession, were seised of an undivided 3/35 of the entire tract. In 1889 the defendants named in the bill as being out of possession filed a cross bill joining in the prayer for partition, but asserting a much larger interest in the property than that conceded to them in the bill. After much preliminary controversy the case was finally submitted on bill and answers and cross bill and answers and the proofs. The defendants in possession, among other defenses set up in their answers, pleaded the bar of the statute of limitations. The circuit court held that the statute was not a bar to the relief sought, that the complainants were seised of an undivided 1/6 of the tract, that the cross complainants were seised of 1/6 plus 1/18, and that the other defendants were entitled to the remainder or 11/18 of the several parts of the tracts of which they were respectively in possession, and, after fixing the amount to be allowed for improvements made between 1860 and the date of the commencement of the action, ordered a partition and sale. The period of limitation for the bringing of actions for the recovery of real estate in Ohio is 21 years. More than this time, by five years, had elapsed between the time when the right of entry by complainants and cross complainants had accrued, and the time when the suit was brought; but the circuit court held that the defendants in possession held under a claim of title in subserviency to that of the complainants and cross complainants, as their cotenants, and that the possession had therefore never been adverse. The court further held that, even if there had been at one time an ouster or disseisin by the defendants in possession, they had subsequently purged it by accepting deeds of undivided interests under the same title as that of complainants and cross complainants. McClaskey v. Barr, 47 F. 154; Id., 42 F. 609.

The quarter section in controversy was owned in 1815 by William Barr, Sr. He died in 1816, and by his will he devised the tract to his three sons-in-law and their heirs in trust to pay the income to his son, John M. Barr, for life, and, in case he should die leaving a child, then also in trust for his son's wife, Maria, during her life, and upon the decease of the said Maria the testator devised the remainder in fee to his son's child. In case his son died without leaving issue, he devised the remainder to his sons-in-law and their heirs forever. He also devised the residue of his estate to his sons-in-law. John M. Barr, the son, had one daughter, who survived him 18 months, and died in 1821. The widow married John Bigelow in 1824. By the decision of the supreme court of Ohio in Bigelow v. Barr, 4 Ohio, 358, under the will of William Barr, Sr., Maria Bigelow took a life estate in the land on the death of her first husband. Until the decision of the supreme court of the United States in Poor v. Considine, in 1867, reported in 6 Wall. 458, it was the subject of much discussion whether, under the will, the remainder in the tract vested in the sons-in-law of Wm. Barr, Sr., after the death of Mary Jane Barr, or vested in her heirs, and, if the latter, whether, by the then statute of descents of Ohio, the estate passed to the children and descendants of William Barr, Sr., or to his brothers and sisters and their heirs. By that decision it was settled that Mary Jane Barr, granddaughter of William Barr, Sr., on the death of her father, John M. Barr, took a vested estate in remainder in the tract, subject to the life estate of her mother, Maria Bigelow, and that by the Ohio statute of descents, on the death of Mary Jane Barr, in 1821, the fee in remainder ascended to the ancestor, William Barr, Sr., from whom it had come, and vested in his brothers and sisters and their heirs. In 1838 Maria Bigelow sold the tract to Ephraim Morgan and Lot Pugh for $2,000, by deed wherein she 'granted, bargained, sold, conveyed, released, and forever quitclaimed * * * unto the said Ephraim Morgan and Lot Pugh, their heirs and assigns forever, all that certain farm or tract of land (describing it), and all the estate, right, title, and interest, claim and demand, both in law and equity, of her, the said Maria Bigelow, * * * to the only proper use and behoof' of Morgan and Pugh, 'their heirs and assigns forever,' and warranted, for herself and heirs, the title against all persons claiming by, through, or under her. In 1839 Pugh, for $500, conveyed the lot to Morgan by deed wherein he granted, bargained, sold, conveyed, and quitclaimed it to Morgan and his heirs. After his purchase Morgan was advised that the fee of the land was in the brothers and sisters of William Barr, Sr., and their heirs, subject to the life estate of Maria Bigelow. He thereupon sent his son-in-law, Dr. William Wood, to Westmoreland and Cumberland counties, Pa., where William Barr, Sr., had lived before coming to Cincinnati, to purchase the interests in remainder of the heirs of his brothers and sisters. Wood spent a number of days in that neighborhood and elsewhere, in his search, and brought back to Morgan 12 different deeds, from more than that number of persons, conveying to him (Wood) all their interests in the fee-simple title to the tract in question. Wood procured seven more deeds of the same character, one in each of the years 1841, 1843, 1845, 1846, 1847, 1850, and 1853. These interests were duly conveyed to Morgan in two deeds, in fee simple, one in 1839 and the other in 1857, in the first of which the recital was that the title conveyed was that of the interests of 'the- ' heirs of the brothers and sisters of William Barr, Sr. About the time he received the Wood deed, in 1839, Morgan began the sale of the tract, and between 1839 and August 3, 1860, when Maria Bigelow died, he had sold all but 23 acres of the quarter section. Morgan had, in that period, executed eight deeds of various pieces, with covenants of general warranty, and the grantees had taken possession under them. Some of his grantees had in turn made like sales, with like deeds. Prior to the death of the life tenant, Morgan had given seven different mortgages, covering collectively the whole tract retained by him, in which he granted the fee simple of the same, with covenants of general warranty. The deeds and mortgages were all duly recorded in the recorder's office of Hamilton county. All but two of the nine different tracts into which the quarter section was thus divided were occupied as suburban homes by their owners, who erected substantial country residences thereon, and inclosed and beautified their land with shade trees and otherwise. One tract of five acres was conveyed by Considine, a grantee and purchaser of Morgan, in 1847, to the Catholic archbishop of Cincinnati, John B. Purcell, and his heirs, to build thereon a college for the education of young men for the Catholic priesthood. At a cost of $20,000 or more, a college building was erected on this tract in 1847, and has ever since been continuously used for this purpose. The residences built on the different tracts were all in good condition and repair when Maria Bigelow died, on the 3d of August, 1860. Her death made no difference in the character of the occupancy of Morgan and his grantees. On August 3, 1860, the persons in possession, and their respective tracts, were as follows:

Patrick Considine ... 66 acres

Archbishop Purcell .. 14.738 acres

Caroline Young ...... 25.29 acres

S. S. Boyle ......... 20 acres

E. Henry Carter ..... 4 acres

J. B. Hubbard ....... 10 acres

Ephraim Morgan ...... 23 acres

Considine from 1860, continued to occupy his residence and to farm his land, until 1868, when he sold two tracts of 10 acres each for $10,000 apiece, with deeds of general warranty. He died in 1873, and by his will devised the remainder of the tract to Archbishop Purcell, subject to a life estate in his brother and sisters. The sisters being dead, the brother conveyed his life estate to the archbishop in 1874. The archbishop leased the tract in 1874 at a yearly rental of 6 per cent. on $2,000 an acre, with a privilege of purchase, and a covenant to convey the fee, by deed of general warranty, in blocks of four acres or more. The other land of Purcell continued to be used for seminary purposes. In 1863 a fire consumed the south wing of the building, and it was rebuilt at a heavy...