Barnes v. Boyd

• Decision Date: 15 February 1934
• Citation: 8 F. Supp. 584
• Court: U.S. District Court — Southern District of West Virginia
• Parties: BARNES v. BOYD et al.

8 F. Supp. 584

BARNES v. BOYD et al.

District Court, S. D. West Virginia, at Charleston.

February 15, 1934.

COPYRIGHT MATERIAL OMITTED

Fairleigh & Fairleigh, of Louisville, Ky., for plaintiff.

Price, Smith & Spilman, Conley & Klostermeyer, Brown, Jackson & Knight, MacCorkle, Clark & MacCorkle, Koontz, Hurlbutt & Revercomb, and Herbert L. Carney, all of Charleston, W. Va., for various defendants.

PAUL, District Judge.

This is a suit in equity brought by the plaintiff, Rose Hudson Barnes, against numerous defendants having estates of varying nature in certain tracts of lands in Kanawha county, W. Va.

Briefly stated, and omitting the detailed allegations, the substance of the original bill is as follows:

That in 1794 the commonwealth of Virginia granted a large tract, described as containing 40,000 acres of land, in what is now Kanawha county, W. Va., to one Jacob Skiles. That some years thereafter, in 1841, the land purporting to be the Skiles survey was sold by the commissioners of delinquent and forfeited lands for nonpayment of taxes; that one John D. Lewis purchased three tracts of what purported or was claimed to be the Skiles land; these three tracts are described as containing in the aggregate about 45,000 acres.

It is alleged that the commissioners of delinquent lands, being unable to identify the Skiles survey, made up an imaginary or fictitious plat from which they made the sale to Lewis and that the lands shown on this plat and purported to be acquired by Lewis were not the lands of the Skiles survey, but included waste and unappropriated land belonging to the commonwealth, which there was no right to sell.

That, beginning in 1858 and within four or five years thereafter, William A. McMullin and John P. Hale acquired various tracts of land by grant from the commonwealth, aggregating 30,475 acres. That these various tracts were definitely located on the ground by well known and ascertainable boundary marks. The bill does not so explicitly allege, but it is plainly inferable and was no doubt meant to be alleged, that in the sale made in 1841 by the commissioners of delinquent lands these commissioners undertook to sell and convey to Lewis lands which were not included in the so-called Skiles survey, but which were in fact unappropriated lands belonging to the commonwealth and were in large part the same lands which were later granted by the commonwealth to McMullin and Hale.

It is further alleged that Wm. A. McMullin and John P. Hale brought several ejectment suits against John D. Lewis and others to determine title to portions of these lands, and that these suits resulted favorably to the plaintiffs. (The date of these suits is not given, but they were apparently tried between 1865 and 1872).

William A. McMullin died intestate in October, 1872, leaving four children. Apparently at this time there were pending a number of other ejectment suits involving portions of the lands in question, for it is alleged that upon the death of Wm. A. McMullin, his surviving coparcener, Hale, assumed full and exclusive control of all matters pertaining to the lands in question, "including the management of the suits in ejectment against said John D. Lewis."

These pending ejectment suits appear to have been fourteen in number, involving in the aggregate eighteen or twenty thousand acres of land.

The bill then alleges — and this is the gravamen of this suit — that shortly after the death of McMullin, his coparcener, Hale, fraudulently agreed and conspired with Lewis to surrender and forfeit to Lewis all right, title, and interest of the McMullin heirs and of Hale in and to the lands which were the subject-matter of the pending ejectment suits and which were claimed by Lewis as comprised within the Skiles survey. That in pursuance of this fraudulent scheme, Hale and Lewis agreed to submit all of the ejectment suits to three arbitrators, whose award in each case should be entered as the judgment of the court. That Hale procured as counsel ostensibly representing him and the McMullin interests an incompetent attorney who was in fact friendly to Lewis, and that the maps and other data presented before the arbitrators were false and submitted with the purpose on the part of Hale of obtaining awards favorable to Lewis. That the plats filed by the arbitrators as explanatory of their awards were false and contained fictitious metes and bounds. That the awards, except as to a very small portion of the lands, were in favor of Lewis, and that this result was one which the parties had fraudulently conspired to bring about. That judgments were entered on the awards on December 20, 1877. Other details as to the manner in which this arbitration was handled are set forth as evidence of the fraudulent scheme entered into by the parties, and it is alleged that Hale profited by his dishonest agreement to surrender the lands to Lewis. And it is expressly charged that the arbitrators colluded and connived with the conspirators (Hale and Lewis), and that the arbitrators were guilty of fraud and of aiding and abetting in the perpetration of the fraudulent scheme to deprive the McMullin heirs of their rightful interest in this land.

The bill states the object and purpose of the suit to be "to have declared void and set aside the judgments entered on the 20th day of December 1877, in the Kanawha Circuit Court of Kanawha County, West Virginia, which judgments were based upon and followed a false and fraudulent award of arbitrators in certain suits in said Court entitled McMullin and Hale et al. against Lewis and Dickinson et al. * * *"

And the prayer of the bill is: "That the several awards of the said arbitrators under date of August 24, 1876, as herein set out, and the several judgments of December 20, 1877, entered in the Circuit Court of Kanawha, West Virginia, rendered in pursuance to said awards be each and all declared null and void and held for naught."

It is also prayed that certain deeds, leases, etc., made by Lewis or his successors in title to portions of the lands be declared null and void.

There has also been filed an amended bill, the contents and purpose of which will be herein later discussed.

In the natural course of the development of a growing and industrially active community, the lands have been subdivided and have passed into the hands of various persons, with the result that the defendants here are in large number.

On his death in 1872, William A. McMullin left four children: John L. McMullin, Rhoda S. McMullin Cooke, Jas. H. McMullin, and Mary McMullin Hudson (the mother of the plaintiff). The plaintiff, who is a resident of Kentucky, is a granddaughter of William A. McMullin, being the sole surviving child of Mary McMullin Hudson.

This is the third suit which has been brought in this court by grandchildren of William A. McMullin, affecting the same lands and based upon the same alleged happenings as are set out here. The first of these was brought by Nelson V. McMullen, as plaintiff; he being a son of J. L. McMullen. The plaintiff in the second of these suits was Rose Cooke Morse, a daughter of Rhoda McMullen Cooke. (Note: In the previous cases the name McMullen is spelled with the letter "e" in the last syllable; in the present case the plaintiff uses the letter "i" in the spelling. This is noted merely to prevent confusion.) In each of these previous cases a motion to dismiss the bill was granted by the District Court and on appeal was affirmed by the Circuit Court of Appeals. See McMullen v. Lewis (C. C. A.) 32 F.(2d) 481, and Morse v. Lewis (C. C. A.) 54 F.(2d) 1027.

In both of the previous cases, the prayer of the bill was the same in effect as it is here, as shown by the following excerpts:

In McMullen v. Lewis, the bill prays "that the award of said arbitrators under date of August 24, 1876, made by David Lamb, H. J. Samuels and Jas. Morrow, Jr., as herein set out and the judgment of the Circuit Court of Kanawha County, West Virginia, rendered in pursuance to said award of December 20, 1877, be declared to be null and void. * * *"

In Morse v. Lewis, the prayer is "that the awards of said arbitrators, as herein set out, and the judgments of the Circuit Court of Kanawha County, West Virginia, rendered in pursuance to said awards, be declared to be null and void as to complainant. * * *"

It will thus be seen that in each of these successive suits the attack is centered upon the alleged fraudulent awards made by the arbitrators in the ejectment suits and the judgments based thereon. I have gone over the records in both of the previous cases. The record in McMullen v. Lewis is quite lengthy and shows that the plaintiff filed several amended bills in an effort to strengthen his position and to meet objections to the original bill. In the case of Morse v. Lewis, it is apparent that the plaintiff, in drafting her bill, had it in mind to negative the objections which led to the dismissal of the bill and amended bills in McMullen v. Lewis. And it is also apparent that in the instant case the bill and amended bill are drawn with a view to surmounting the objections which led the court to dismiss the two previous suits, at the same time preserving and repeating the allegations made in the previous suits. The result is that the bill in the instant case is voluminous and detailed, consisting of a consolidation of the allegations made in the two previous cases, together with additions thereto.

As in the two previous cases, the defendants have moved to dismiss the bill and amended bill, and it is this motion that is now under consideration by the court.

In determining this motion to dismiss, the court is not at liberty to look only at the contents of the bill itself and to ignore the decisions of this court and of the appellate court in the previous suits. Certain allegations were there considered and passed upon; and so far as they reappear in this case in the same or substantially the same form,...