Acord v. Western Pocahontas Corp.

• Decision Date: 22 November 1907
• Citation: 156 F. 989
• Parties: ACORD et al. v. WESTERN POCAHONTAS CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

156 F. 989

ACORD et al. v. WESTERN POCAHONTAS CORPORATION.

United States Circuit Court, S.D. West Virginia.

November 22, 1907

part the same officers and stockholders was organized in another state, which purchased such lands at the sale and also the stock of the former corporation, which was thereafter dissolved, held not sufficient to establish a collusive transfer of the lands, for the purpose of enabling a suit in respect thereto to be brought in a federal court such as deprived it of jurisdiction of such suit.

On June 16, 1906, in term, the Western Pocahontas Corporation presented its bill in this court against Abraham Acord and some 71 others, in which it alleged itself to be a corporation under the laws of Virginia and the defendants named to be citizens and residents of West Virginia; that it was the owner of 28,113 acres of land, situate in Wyoming and Raleigh counties, derived by it through mesne conveyances from two patents issued by the commonwealth of Virginia, the one on February 11, 1797, to James Welch for 90,000 acres and the other on June 25, 1795, to Wilson Carey Nicholas for 500,000 acres; and in support of this allegation it filed with said bill, as parts thereof, office copies of conveyances and other records showing a perfect chain of title from said patentees to it for said 28,113 acres. The bill then alleges that in the year 1884 plaintiff's predecessors in title took the actual adversary possession of said tract of land and placed thereon some 73 tenants under written leases, copies of which are exhibited as parts of the bill, which tenancies, created from that year to the year 1892 and continued uninterrupted until the present time embraced each part and all of said land, whereby actual, continuous, peaceable, exclusive, notorious, hostile, and adversary possession of said tract of land has been maintained by plaintiff and its predecessors in title from said year 1884 to the present time; that all taxes assessed and assessable against said land have been paid; that the tract has been duly and regularly entered on the land books of the proper counties, and has never become forfeited; that plaintiff is the owner in fee simple, and has the open, notorious, exclusive, hostile, peaceable, and adverse possession thereof; that on or about April 1, 1905, certain of said tenants of plaintiff, named, entered into an agreement among themselves and with the other tenants, named, to combine for the purpose of attempting to take from the plaintiff certain portions of its said land, and for that purpose they, with others, defendants named, met and organized a lodge or society called the 'Citizens Union,' adopted articles of agreement or association, elected officers, selected a meeting place, levied and collected and still continue to levy and collect monthly dues from the membership in aid of this organization, charged to be a secret one, guarded by an oath of secrecy administered to each one at the time of becoming a member thereof; that in pursuance of said combination the members of said 'Citizens Union' agreed among themselves to execute deeds, one to the other for such parts or parcels of plaintiff's said land, in their possession as its tenants, as each one desired to possess, and engaged the county surveyor of Wyoming county and another to survey out the particular portions each desired, so that the boundaries thereof could be defined, which surveying was done, and deeds of conveyance, one to the other, were executed and placed upon record for each one's selected parcel. Copies of these deeds, more than 50 in number, are exhibited with the bill. It is further charged that no surrender was made by said tenants prior to the taking of said deeds by them of the premises held by them, but they immediately began to assert hostile claims to such lands; that they have no right and never had any claim of title whatever except as contained in these deeds made by them when tenants of plaintiff one to the other. The bill then charges that, so soon as informed and advised of these proceedings, it instituted on the law side of this court an action of ejectment against said defendants, which is pending; that in the ordinary course of procedure it would be impossible to try more than one or two of defendant's claims in any one trial, and that to prosecute said action of ejectment to a final conclusion would require from 25 to 30 years; that the costs and expenses would ultimately exceed the value of the land in controversy; that judgment for costs could not be collected, and that by intervention on the part of equity a great multiplicity of suits would be avoided, enormous costs saved, and an adequate relief obtained, which could not be obtained at law; that said surveys and said deeds made of said parcels by such tenants one to the other and to those in collusion with them, so admitted to record, have created clouds upon plaintiff's title, greatly depreciating its market value; that the making thereof under said combination and conspiracy called the 'Citizens Union' was fraudulent; that no part or parcel of lands claimed by defendants under these deeds had ever been assessed upon the land books and no taxes ever paid; that these defendants applied to Stewart, county clerk of Wyoming county, to have these parcels placed upon such books, but he, knowing they had no title, refused to enter the parcels; that in the year 1905, however, when reassessment of the lands of the state under legislative act was made, the reassessor listed these parcels and placed them upon the land books, and that Stewart, clerk, unless enjoined, will extend them on the land books and they will be assessed with taxes for the year 1906; and, finally, that some of the defendants have been and are cutting timber upon said parcels, some have contracted to sell to the Welch Lumber Company the timber on such parcels, as shown by deeds made by them to such company, it well knowing, when it took such deeds, that they had no title and no right to sell. The prayer of this bill was that process issue; that certain defendants, officers of the 'Citizens Union,' be required to file its constitution, by-laws, and acts, with a list of its membership; that a decree be entered adjudging title to said 28,113 acres of land to be in plaintiff, free and acquit from all claims of defendants; that all of said deeds to defendants be canceled and set aside as clouds upon plaintiff's title; that said 'Citizens Union' be decreed to be a fraudulent conspiracy against plaintiff, and be dissolved, and each member thereof be restrained from carrying out its purposes and from further asserting title to plaintiff's land; that Stewart, clerk, be enjoined from placing said parcels of land on the land books for taxation purposes; that the possession of the defendants be decreed to be the possession of plaintiff; that they be enjoined and restrained from cutting and removing timber from said lands and for general relief.

This bill was by order filed, remanded to rules, process issued thereon, was served upon defendants, and, no appearance having been entered by them thereto, at August rules, 1906, an order was entered taking the bill pro confesso against them. On the 28th day of September, following, the cause having been set down for hearing on that day, and no appearance or proceeding having been entered or taken by the defendants, a final decree was entered therein which decreed: (1) That an organization, comprised of defendants and others, known as the 'Citizens Union,' existed, and that it was an illegal and fraudulent conspiracy against plaintiff and against its title to and use and enjoyment of its land. (2) That the deeds executed by defendants, one to the other, conveying parts of plaintiff's land, were made in pursuance to and to carry out the illegal and fraudulent purposes for which said conspiracy was formed; that both grantor and grantee in said deeds knew that they and neither of them had any right, title, or interest in the land purporting to be conveyed thereby. (3) That the plaintiff is in the actual possession of all of its said land, under and by virtue of the tenancies created by the leases filed with its bill, and that the possession of the defendants (naming them) under and by virtue of the leases and subleases held by them, as well as under said fraudulent deeds, is the actual possession of plaintiff of each and every part of its said land covered by said leases, subleases, and said deeds. (4) That the defendants have not any estate, right, title, or interest whatever in the tract of land of 28,113 acres; that plaintiff's title thereto is a good, valid, subsisting, and fee-simple one; that the defendants be and are forever enjoined and restrained from asserting any claim thereto adverse to plaintiff, and that certain defendants named, having forfeited their leases and subleases, surrender possession of the land held by them, whenever required by written notice so to do, under penalty of contempt. (5) That the several deeds, set forth and described in said decree, executed under and by virtue of said conspiracy, be and are, and each of them is, canceled, annulled, set aside, and held for naught, and the cloud created thereby upon plaintiff's title is removed, and plaintiff is quieted in its title and possession of said lands; that Stewart, clerk, aforesaid, is enjoined from placing or continuing said parcels or any of them upon the land books for taxation; that plaintiff recover costs from defendants. This decree, by the ending of the term at which it was rendered on November 19, 1906, became absolute and final under equity rule 19. In consequence, a motion to set it aside made by the defendants at the following term was overruled.

Thereupon in March, 1907, ...