TH Mastin & Co. v. Kirby Lumber Co.

• Decision Date: 29 April 1936
• Docket Number: No. 609.,609.
• Citation: 15 F. Supp. 429
• Parties: T. H. MASTIN & CO. et al. v. KIRBY LUMBER CO. MEACHUM v. MASTERSON et al. SAME v. RYE et al.
• Court: U.S. District Court — Southern District of Texas

15 F. Supp. 429

T. H. MASTIN & CO. et al. v. KIRBY LUMBER CO.

MEACHUM v. MASTERSON et al.

SAME v. RYE et al.

No. 609.

District Court, S. D. Texas, Houston Division.

April 29, 1936.

Andrews, Kelley, Kurth & Campbell, E. J. Fountain, Jr., and Daffan Gilmer, all of Houston, Tex., for receiver of Kirby Lumber Co.

Grover C. Lowe, of Woodville, Tex., J. H. Jackson and Alex F. Smith, both of Shreveport, La., R. H. Jones, of Livingston, Tex., and Roy L. Arterbury, of Houston, Tex., for T. G. Masterson et al. and John Rye, Jr., et al.

KENNERLY, District Judge.

By supplemental and ancillary bill in the nature of an original bill in this receivership cause, the receiver of Kirby Lumber Company (for brevity called receiver), in intervention No. 331, sues T. G. Masterson et al., and in intervention No. 354, sues John Rye, Jr., et al. (for brevity called defendants), to recover title and possession of 181.5 acres of land in Polk county, Tex., in this district and division, claimed to be part of the receivership properties. The cases, after having been brought to issue, went to a master for hearing and report, and were there consolidated, and the master has reported in favor of defendants. The receiver has filed exceptions to the report. This is a hearing on the exceptions.

1. This being an ancillary and supplemental bill in the nature of an original bill by the receiver against persons claiming adversely property in the hands of the receiver, there is jurisdiction here. Riehle v. Margolies, 279 U.S. 218, 220, 49 S.Ct. 310, 73 L.Ed. 669, 671; White v. Ewing, 159 U.S. 36, 15 S.Ct. 1018, 40 L.Ed. 67; In re Tyler, 149 U.S. 164, 13 S.Ct. 785, 37 L.Ed. 689; Wabash Railroad Co. v. Adelbert College, 208 U.S. 38, 28 S.Ct. 182, 52 L.Ed. 379; Central Union Trust Co. v. Anderson County, 268 U.S. 93, 45 S.Ct. 427, 69 L.Ed. 862; Porter v. Sabin, 149 U.S. 473, 13 S.Ct. 1008, 37 L.Ed. 815; Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672; Bien v. Robinson, 208 U.S. 423, 28 S.Ct. 379, 52 L.Ed. 556; Jenkins v. Dillingham (C.C.A.) 175 F. 1021, certiorari denied 220 U.S. 620, 31 S.Ct. 723, 55 L.Ed. 613; Keith Lumber Co. v. Houston Oil Company (C.C.A.) 257 F. 1, 4, certiorari denied 250 U.S. 666, 40 S.Ct. 13, 63 L.Ed. 1197; Gordon v. Dillingham (C.C.A.) 158 F. 1019; Hollander v. Heaslip (C.C.A.) 222 F. 808, 811; Knox & Lewis v. Alwood (D.C.) 228 F. 753; Hume v. City of New York (C.C.A.) 255 F. 488; Gunby v. Armstrong (C.C.A.) 133 F. 417, 427; Bottom v. National Railway Association (C.C.) 123 F. 744; Peck v. Elliott (C.C.A.) 79 F. 10, 38 L.R.A. 616; Ross-Meehan Brake-Shoe Co. v. Iron Co. (C.C.) 72 F. 957; Cherry v. Insull Company (D.C.) 58 F.(2d) 1022; Green-Boots Construction Co. v. Hays (C.C.A.) 56 F.(2d) 829; Kreitmeyer v. Baldwin Drainage Dist. (D.C.) 2 F. Supp. 208; Samuel v. Houston Oil Co. (Tex.Civ.App.) 193 S.W. 246 (Writ of Error refused).

2. The receiver claims the land in question under an award (preliminary to patent) made May 16, 1911, to C. C. McDonald by the state of Texas. The defendants claim same under an alleged grant, dated November 13, 1835, by the Mexican government (Coahuila and Texas) to Manuel Procella. The following are the facts as found by the master:

"(a) These interventions were brought by the Receiver of the Kirby Lumber Company for title and possession of 181.5 acres of land known as Survey No. 105, Certificate S. F. 7800, T. F. Pinckney grantee, in Polk County, Texas.

"(b) On November 2, 1835, Manuel Procella petitioned the Land Commissioner for one league of land, reciting that he was a citizen and was entitled to such grant under the facts he set forth. The Commissioner referred the petition to surveyor on November 2, 1835, and the survey was made and the field notes returned to Nacogdoches on November 12, 1835, and the title grant was executed by the Commissioner on November 13, 1835.

"(c) The grant covered one league of land in Polk County, and the grant was translated and certified as a correct translation of the original title on file in the General Land Office at Austin, Texas, under date of September 24, 1854, and then filed for record in the Deed Records of Polk County, Texas, on July 20, 1859.

"(d) The parties agree that the major portion of the Procella League conflicts with a senior grant to Andreas Morales; the part that is not in conflict being 330 varas, more or less, in width, and constituting a strip running along the west line of the Morales Survey.

"(e) On July 15, 1857, a deed dated May 28, 1853, was recorded in the Deed Records of Polk County, Texas. The grantors were Philip, Jose Maria, Encornacio, Manuel, Jesus, Antonio and Martha Ann Procella; the deed reciting that they were all of mature age, the legal heirs, and all of the surviving heirs of their deceased father, Manuel Procella. The deed conveyed 4428 acres of land, being the same land granted to Manuel Procella and titled to him on November 13, 1835. The grantees were Simon De Soto, of De Soto Parish, Louisiana, and James Ferguson, of Cherokee County, Texas.

"(f) By deed dated July 28, 1859, and recorded the same day in the Deed Records of Polk County, Texas, James Ferguson conveyed his half interest of 2214 acres of land in the Manuel Procella League to J. F. C. Pitts.

"(g) On November 16, 1889, John F. C. Pitts deeded his undivided one-half interest in the Manuel Procella League to Morgan Rye, reciting that the deed was in substitution of a lost deed between the same parties, executed in 1869. The deed was a general warranty, and was filed for record on November 28, 1889, in the Deed Records of Polk County, Texas.

"(h) I find that The State of Texas, on October 24, 1885, commenced escheat proceedings in the District Court of Polk County, Texas, against all persons interested in the estate of M. Procella, deceased. The petition was filed by the District Attorney and alleged that Manuel Procella departed this life intestate on or about January 1, 1850, and at the time of his death he was seized in fee simple of the real estate thereinafter described. The petition further alleged that Manuel Procella left no heirs surviving him, made no demise of the land, that no will was ever recorded or probated in Polk County, and that no lawful claim had been asserted, or lawful act of ownership exercised in said land for more than twenty years next before the filing of the petition. The description of the land covered the Manuel Procella League. Citation was published for all persons interested in the estate of Manuel Procella, deceased, and the return showed that it was published for four consecutive weeks in a newspaper published in Polk County, Texas.

"(i) On July 7, 1887, a decree was entered in the said cause by default, the recital appearing in the decree that the defendants, although cited, came not and wholly made default by failing to file an answer or appear in any manner and defend the suit. It was therefore considered by the Court that the plaintiff, The State of Texas, have and recover of the defendant the described land. There is no record that any proof was introduced in the case by the State, nor was any attorney appointed to represent the persons cited by publication. The Court fixed the value of the land to be sold under the escheat proceedings at $2.00 per acre, but, after advertising, the Sheriff returned the writ without sale because no bid was made.

"(j) An application for the survey of unappropriated land was made on December 1, 1906, by T. F. Pinckney, the land being stated as bound on the north by the Mary Thomas League, on the east by the Andrew Morales League, on the south by a 503 acre survey for T. F. Pinckney, and on the west by the Seth Batson Survey. The survey was made by the Polk County surveyor, and described 181.5 acres of land lying just west of the northern part of the Andrew Morales League. The field notes were filed in the General Land Office on December 22, 1906. The Pinckney application was apparently cancelled, and on May 4, 1911, C. C. McDonald made an application for the purchase of the 181.5 acres of land. The application was at the rate of $1.00 an acre for the land, and $1.00 an acre for the timber. This was filed in the General Land Office on May 11, 1911, and the award was made on May 16, 1911. McDonald paid the $181.50 for the timber in full, and 1/40, to-wit: $4.54, on the purchase price of the land. The Kirby Lumber Company is the successor in interest of C. C. McDonald, and I find that the interest and annual payments have been made to the General Land Office each year since 1911.

"(k) The map of Polk County of 1863, recorded in the General Land Office in January, 1865, shows the Manuel Procella League as conflicting with the Andreas Morales League, except for the narrow strip along the western side of the Morales League. On August 15, 1908, E. Von Rosenberg, an employe of the General Land Office, noted on the back of the Pinckney file that it was in conflict about 330 varas on the east line for the entire length with the Manuel Procella title league which was not covered by the Andreas Morales title league, and that otherwise it was correct on the map of Polk County. On August 29, 1908, Mr. Crain, one of the legal examiners in the Land Office, noted on the file that the Land Office was closed on November 13, 1835, and all titles issued on and after said date were void, that the Manuel Procella grant issued November 13, 1835, and hence was void.

"(1) Some of the defendants in these interventions are descendants and heirs of Morgan Rye, and others are descendants and heirs of Simon De Soto.

"(m) There was no evidence of physical possession of the land by any of the parties.

"(n) The Receiver showed payment of taxes on the property by the Kirby Lumber Company and its predecessor in title from 1913 to 1934, inclusive. There was no evidence as to payment or non-payment of taxes by any of the defendants or their predecessors."

3. If, as claimed by the receiver, the...