Buchanan Co v. Heirs

• Decision Date: 15 January 1914
• Citation: 80 S.E. 794,115 Va. 704
• Parties: BUCHANAN CO. v. SMYTH'S HEIRS et al.
• Court: Virginia Supreme Court

80 S.E. 794

115 Va. 704

BUCHANAN CO.

v.SMYTH'S HEIRS et al.

Supreme Court of Appeals of Virginia.

Jan. 15, 1914.

1. Quieting Title (§ 30*)—Adverse Possession—Necessary Parties.

In a suit to quiet title parties in possession as adverse claimants under junior grants from the commonwealth, court rights, and adverse possession under color of title and claim of right based on forfeiture for unpaid taxes are necessary parties.

[Ed. Note.—For other cases, see Quieting Title, Cent. Dig. §g 64-66; Dec. Dig. 5 30.*]

2. Quieting Title (§ 12*)—Jurisdiction-Adequate Remedy at Law.

Prior to the act approved February 20, 1912, amending and re-enacting section 3058 of Code 1904 (Acts 1912, c. 44), a court of equity would have no jurisdiction of a suit to quiet title, where the party suing to quiet title had the complete legal and equitable title, but was not in possession of the property, since his remedy at law, ejectment, would be complete; and if he had only the equitable title, equity would aid him to acquire the legal title.

[Ed. Note.—For other cases, see Quieting Title, Cent. Dig. §§ 44, 45; Dec. Dig. 12.*]

3. Records (§ 17*)—Supplying Lost Records—Parties—Adverse Claimants.

In a bill under Va. Code 1904, § 2361, to supply records or papers forming links to plain tiff's title to land, the statute expressly provides that parties in possession claiming adversely are necessary parties.

[Ed. Note.—For other cases, see Records, Cent. Dig. §§ 25, 26, 28-35, 43; Dec. Dig. § 17.*]

4. Equity (§ 241*)—Sustaining Demurrer-Defect of Parties.

Where the sole ground of demurrer and dismissal is that necessary parties were not made defendants, the judgment dismissing the bill should not be on the merits, but should be without prejudice.

[Ed. Note.—For other cases, see Equity, Cent. Dig. § 515; Dec. Dig. § 241.*]

Appeal from Circuit Court, Washington County.

Suit to quiet title by the Buchanan Company against the unknown heirs of and claimants under Richard Smyth and Henry Banks and others. From a decree sustaining a demurrer to the bill, the plaintiff appeals. Amended and affirmed.

Jeffries, Wolcott, Wolcott & Lankford, of Norfolk, S. B. Avis and Brown, Jackson & Knight, all of Charleston, W. Va., for appellant.

Greever & Gillespie, of Tazewell, and M. O. Litz, of Welch, W. Va., for appellees.

WHITTLE, J. This is a suit in equity by the appellant, the Buchanan Company, a nonresident corporation, against the appellees, the unknown heirs of the claimants under Richard Smyth and Henry Banks. The main object of the bill is to remove an alleged cloud on appellant's title to 146, 109 1/2 acres of land situated in Buchanan county.

On November 16, 1795, a tract of 200, 000 acres of land, including the boundary in controversy, was patented to Richard Smyth and Henry Banks, and the bill charges that the excess of the original tract over the land in dispute was found to lie in the state of Kentucky. Appellant attempts to connect its title with the original grant by the allegation that 90 odd years before the institution of this suit the land was sold for delinquent taxes due from Smyth and Banks to the United States, and was purchased by William Lamb, to whom a tax deed was executed by William D. Taylor, collector, on November 3, 1823. It is sufficient to say that appellant claims mediately under this tax deed, without referring specifically to intermediate conveyances embraced in its chain of title. The alleged cloud upon the title sought to be removed is the original grant from the commonwealth of Virginia to Smyth and Banks.

The bill, after asking that the unknown heirs and claimants under Smyth and Banks be made parties, concludes with the prayer "that, as against the said defendants, it may be judicially determined, ascertained, and de-creed that all proceedings necessary to a proper and valid sale of said land for the direct taxes, under which the same was sold and purchased by William Lamb, and pursuant to which said land was conveyed to him as aforesaid, were regular, complete, and fully complied with; that each and all of the recitals made in the said deed * * * are true; that its title to the land conveyed to it on February 17, 1905, by W. L. Dennis, county clerk of Buchanan county, may be quieted as against the defendants hereto, and that it may, as against the defendants hereto, be decreed to be the sole, legal, and beneficial owner of the whole of said land in fee simple, and that by further decree each of the said defendants may be perpetually enjoined from asserting or prosecuting, judicially or otherwise, any claim to said premises against your complainant; that this court will order the decree so entered by it in this suit to be certified and transmitted to the county clerk of Buchanan county for recordation in the book in his office in which deeds are recorded, to the end that a complete and absolute title in fee simple to said land as against the said parties defendant may be shown by the records of said clerk's office. * * *"

Bruce C. Banks and Fanny Banks Muncey, two of the heirs at law of Henry B. Banks, appeared and demurred to the bill, setting forth the grounds of demurrer in writing. Thereupon the circuit court sustained the demurrer, but granted leave to the plaintiff to amend its bill if it should so desire, and certain bar amendments were made which do not demand special notice.

The defendants again demurred to the bill as amended, assigning the same grounds relied on in the demurrer to the original bill, which last-named demurrer the court likewise sustained; and, complainant not desiring to make any further amendment, the bill was dismissed, with costs. From that decree this appeal was granted.

We shall confine our consideration of the ruling of the trial court to a single ground of demurrer, namely, that the bill and exhibits showed that all necessary parties were not made defendants.

It appears from exhibits with the bill, and just inferences from facts therein disclosed which necessarily flow therefrom, that since the execution of the deed from Taylor, collector, to Lamb, numerous parcels of land included within the original boundary have passed into the possession of adverse claimants under junior grants from the commonwealth, court rights, and possession under color of title and claim of right, predicated upon forfeiture of the entire tract to the commonwealth for nonpayment of taxes by former owners. The possession of some of these tracts originated as early as the year 1837. These claimants are therefore not mere squatters, as was assumed in the argument of the case, but bona fide adverse settlers, who in some instances assert legal titles and, in other, equitable titles to portions of the land by processes recognized by law, and are legally and beneficially interested, both in the subject-matter and the event and object of the suit. In these circumstances it is the settled rule of practice that such persons are necessary parties, and must be made defendants.

Professor Hogg, in his work on Equity Procedure, § 36, defines "necessary parties" as follows:

"Necessary parties include all persons, natural or artificial, however numerous, materially interested, either legally or beneficially, in the subject-matter or event of the suit, and who must be made parties to it, and without whose presence in court no proper decree can be rendered in the cause. This rule is inflexible, yielding only when the allegations of the...