Babcock Lumber & Land Co. v. Ferguson

• Decision Date: 29 June 1917
• Citation: 243 F. 623
• Parties: BABCOCK LUMBER & LAND CO. v. FERGUSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

243 F. 623

BABCOCK LUMBER & LAND CO. v. FERGUSON et al.

United States District Court, W.D. North Carolina.

June 29, 1917

Merrimon Adams & Adams, of Asheville, N.C., for plaintiff.

F. A Sondley and M. W. Brown, both of Asheville, N.C., for defendants.

BOYD District Judge.

The facts in this case are substantially these: The complainant in this case derives title under the decree in the Hebard Case, hereafter referred to, in the following manner: That is, Hebard sold and conveyed by deed the lands involved in the Tennessee suit to P. C. Blaisdell and others, on the 16th day of July, 1900; P. C. Blaisdell et al. sold and conveyed the lands to the Smoky Mountain Land & Lumber Company on the 28th day of January, 1901; and the last-named sold and conveyed them by deed to the Babcock Lumber & Land Company the present complainant, on the 8th day of May, 1907.

Charles Hebard filed a bill in equity against D. W. Belding and others, in the Circuit Court of the United States for the Eastern District of Tennessee, on the 16th of January, 1896. Among the defendants named in the bill was R. L. Cooper, of Cherokee county, N. C. Cooper was served with subpoena on the 30th day of March, 1896, under the provisions of the act of Congress authorizing substituted service. He failed to appear and answer, and a decree pro confesso against him was taken on the 14th day of August, 1896.

The purpose of Hebard's bill was to remove cloud from title to about 40,000 acres of lands alleged in the bill to be located in the Eastern District of Tennessee. Included within this 40,000 was 640 acres which was claimed by R. L. cooper by virtue of grant No. 8573, issued by the state of North Carolina on May 26, 1888, and this last is the tract involved in this controversy, and which J. W. Ferguson and J. C Blanchard claim to have purchased and to have title therefor at the time of the bringing of the present suit. There were a number of small tracts or parcels of land claimed by various persons defendants, included within a common boundary of the land of which Hebard alleged that he was owner and in possession.

A final decree was entered in the cause on the 10th day of June, 1899, in which it was decided by the court that Hebard was the owner of the land within the boundary alleged, that he was is possession of the same, and that the several titles or interests claimed by the defendants were invalid and void, among such titles being the grant to R. L. Cooper.

In the suit the location of the line between North Carolina and Tennessee was in controversy, made so by the averments in the bill; but on the 9th of March, 1898, a plea in abatement was overruled, and then the issue was raised by the answer of one or more defendants, particularly in that of J. W. Cooper, who was the father of R. L. Cooper, and who also set up a claim to some part of the lands described in the bill. But the court held that the lands described in Hebard's bill were in the state of Tennessee, and, as before stated, decreed Hebard the owner and in possession, and that the claims of the defendants were void.

In 1909 a petition was filed in the Circuit Court of the United States for the Eastern District of Tennessee, praying for a bill of review, assigning especially as a basis for the prayer that undoubted testimony had been discovered after the entry of the decree showing that the true line between the states of North Carolina and Tennessee was farther west than Hebard's bill represented.

In the meantime, in 1904, R. L. Cooper had died leaving a widow and two minor children, but the latter were made parties to the petition by next friend. Pending this proceeding W. R. Hopkins and others became interested as owners of the lands claimed by the defendants in the original bill, and the Smoky Mountain Lumber Company became a party by reason of having purchased the lands embraced in the original bill, or at least a part of the same, from Hebard, in which purchase was included the tract now in controversy.

Finally leave to file a bill of review was denied by the trial court on the 8th of September, 1909, and in a case stated, in Equity, D. W. Belding, M. M. Belding, A. N. Belding, Henry Stix, Nathan Stix, and others against Chas. Hebard, and in a case stated, William R. Hopkins and others against Chas. Hebard, an appeal from the decision of the court denying leave to file a bill of review was taken to the United States Circuit Court of Appeals for the Sixth Circuit on the 29th of October, 1909.

The principal basis, as before stated, upon which the bill of review was sought and insisted upon was 'that the newly discovered evidence showed that the lands claimed by the complainant in the original case were to the east of the true boundary line between the states of North Carolina and Tennessee, and within the state of North Carolina, and not within the boundaries of the state of Tennessee, and for this reason the Circuit Court of the United States for the Eastern District of Tennessee was without jurisdiction over the said land or to determine the title thereto. ' Upon this appeal the Circuit Court of Appeals affirmed the ruling of the trial court (194 F. 301, 114 C.C.A. 261), and thereupon the case was carried to the Supreme Court of the United States, which latter court at October term, 1914, affirmed the decision of the Circuit Court of Appeals (235 U.S. 287, 35 Sup.Ct. 26, 59 L.Ed. 232); and at the said term the case instituted by the state of North Carolina against the state of Tennessee, having for its purpose the definite determination and settlement of the true line between the two states, was determined (235 U.S. 1, 35 Sup.Ct. 8, 59 L.Ed. 97), locating the true line between the states farther west, so as to leave a part, if not all, of the lands involved in the original Hebard bill on the North Carolina side of the line, and within this part was included the tract claimed by R. L. Cooper, and which is the subject of the present controversy.

Upon these facts the court here is called upon to determine whether or not the decree in the Hebard Case in the United States Circuit Court for the Eastern District of Tennessee had the effect to confirm the title of Hebard to the land described in his bill; notwithstanding, it was afterwards ascertained, when the true line between the states of North Carolina and Tennessee was established, that a part of the lands were in North Carolina, and particularly, as before stated, that part of it now in controversy here.

After mature consideration, I have come to the conclusion that under the law as declared by the Circuit Court of Appeals in this circuit, in the case of Anderson et al. v Elliott, 101 F. 609, 41 C.C.A. 521, the complainant is the owner of the Cooper tract, and that defendants, who claim under R. L. Cooper, are estopped by the Hebard decree to deny complainant's title. In that case Stevenson and others, in a suit against Lovingood and others, brought in the Circuit Court of the United States for the Eastern District of Tennessee, obtained judgment for the possession of certain lands alleged to be situated in Monroe county, Tenn. Among the defendants was Jasper Fain, whom it was afterwards discovered lived in Cherokee county. He was brought into court by substituted process, under the provisions of the act of Congress of March 3, 1875, c. 137 (18 Stat. 470), but he did not appear or file answer or other pleading. The case...