Atlantic & V. Fertilizing Co. v. Carter

• Decision Date: 01 July 1882
• Citation: 88 F. 707
• Parties: ATLANTIC & V. FERTILIZING CO. v. CARTER et al. [1]
• Court: U.S. Court of Appeals — Fourth Circuit

88 F. 707

ATLANTIC & V. FERTILIZING CO. v. CARTER et al. ^[1]

United States Circuit Court, E.D. Virginia.

July, 1882

The purpose of the bill was to ascertain the liens on a tract of some 400 acres of land belonging to the defendant Carter, and to procure a sale thereof for the satisfaction of the same. The bill showed that, besides various liens therein set out the defendants Carter and wife had executed a deed conveying to the defendant the Virginia Marble Company all the marble sandstone, etc., contained in the said tract, with a perpetual right of entry thereon for the purpose of quarrying and removing the same, subject, however, to a defeasance or forfeiture of said rights on the abandonment of the work by the said company, and its failure to prosecute the same for two years consecutively. The bill charges that a forfeiture had occurred by default of the said company for the period specified.

In April, 1881, complainant filed an amended bill, making one William Wright a party defendant, and alleging that he claimed to have an interest in and possession of about 100 acres of the said land under a deed of lease from the Virginia Marble Company. The amended bill asked that the rights of both the Virginia Marble Company and Wright, as its lessee, be declared forfeited, that possession of the lands be surrendered to Carter, and that the same be sold, as prayed in the original bill, free from any claims of the lessee and sublessee. After further proceedings in the cause the defendant Wright on May 1, 1882, filed a petition and bond for the removal of the cause to the proper federal court, alleging that he was a citizen of Indiana, and that the other parties to the suit were citizens of Virginia, that he had expended fully $25,000 on the property, and that the suit could be determined, so far as concerned his rights without the presence of the other defendants. The petitioner prayed 'that the said suit, so far as your petitioner's rights are involved, may be removed for trial into the circuit court of the United States for the Eastern district of Virginia; * * * such removal being in pursuance of section 639 of the Revised Statutes of the United States,' etc. This petition was granted by the state court, and that part of the cause involving the petitioner's rights was accordingly removed into this court. The matter is now heard on complainant's motion to remand. In support of the motion it was contended (1) that Wright, being but a subtenant, was bound, on common-law principles, by the acts and forfeitures of his landlord, the Virginia Marble Company, and could have no standing in court independently of it, and that the question whether a forfeiture had been incurred was still in the state court; (2) that Rev. St. Sec. 639, was no longer in force, so as to authorize the removal of part only of a suit.

C. P. Janney, for petitioner.

John M. Orr and Payne & Alexander, for complainants.

HUGHES District Judge.

I do not think the first point of complainant is well taken. This is a court of equity. The original suit is a cause in equity and the part of it now here is a controversy in equity. The petitioner, Wright, has, by concession, expended $25,000 in developing a quarry on the 100-acre tract which he claims to have leased. If there is any forfeiture, it is through his laches. Under such circumstances, objections to a proceeding which...