Central Coal & Coke Co. v. Penny

• Decision Date: 13 September 1909
• Docket Number: 3,001.
• Citation: 173 F. 340
• Parties: CENTRAL COAL & COKE CO. v. PENNY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

173 F. 340

CENTRAL COAL & COKE CO. v. PENNY et al.

No. 3,001.

United States Court of Appeals, Eighth Circuit.

September 13, 1909

[Copyrighted Material Omitted]

Ira D Oglesby, for plaintiff in error.

T. B Pryor and F. A. Youmans, for defendants in error.

Before SANBORN, Circuit Judge, and CARLAND and POLLOCK, District judges.

SANBORN Circuit Judge.

The trustees of the Cherokee Chapel Church have recovered a judgment against the Central Coal & Coke Company for its conversion of coal which it removed from beneath two acres of land which have been occupied by the plaintiffs as a cemetery and the site for their church for more than 20 years. At the trial the Coal Company admitted that it had removed the coal out of this land; but it challenges the judgment against it on several grounds, the chief of which are that there was no substantial evidence of title by purchase in the trustees of the church, or of an intentional or willful taking and conversion of the coal of the plaintiffs by it.

Title by purchase, as distinguished from title by descent or otherwise, is deemed material by counsel in this case, because the statute of Arkansas provides that such a title conveyed to trustees in trust for the use of any religious society within that state for a meeting house or burying ground shall descend, with the improvements thereon, in perpetual succession in trust to such trustees as shall from time to time be elected or appointed by such society. Kirby's Dig. Ark. Sec. 6851. At a former trial of this case the trustees proved that they and their predecessors had been in the exclusive, uninterrupted, adverse possession of the two acres of land in controversy for more than 30 years; that for that length of time they had maintained a fence around about an acre and a half of the land, and had used that portion of it as a burying ground; and that during this time they had maintained and used a meeting house on the adjoining part, which was not inclosed. The former pastor testified that the church was organized in 1868 or 1869; that in 1869 or 1870 the meeting house was constructed upon the land, and a fence was built around the burying ground, and that about the time the building was constructed there came into his possession a deed purporting to have been executed by one McCullom, and to have been acknowledged before a justice of the peace named Watts; that he took this deed to the register of deeds of the county, and asked him to record it; that the register subsequently returned it to him as recorded; that it was read to the congregation; that he delivered it to one of the trustees of the church, who died about 1880; that the house of this trustee was burned; and that the deed was lost. The Circuit Court held that this evidence was insufficient to establish title; but this court was of the opinion that it constituted substantial evidence that the trustees had title by purchase to this property under the rule announced by the Supreme Court in United States v. Chaves, 159 U.S. 452, 464, 16 Sup.Ct. 57, 40 L.Ed. 215, that 'it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for 20 years, and that such rule will be applied as a 'praesumptio juris et de jure,' wherever, by possibility, a right may be acquired in any manner known to the law (1 Greenleaf on Evidence (12th Ed.) Sec. 17; Ricard v. Williams, 7 Wheat. 59, 109, 5 L.Ed. 398; Coolidge v. Learned, 8 Pick. (Mass.) 504),' and under its repeated quotation and approval (Ricard v. Williams, 7 Wheat. 59, 119, 5 L.Ed. 398; Fletcher v. Fuller, 120 U.S. 534, 548, 7 Sup.Ct. 667, 30 L.Ed. 759; United States v. Chavez, 175 U.S. 509, 523, 20 Sup.Ct. 159, 44 L.Ed. 255) of this declaration of the law by the Supreme Court of Tennessee in Williams v. Donell, 2 Head, 695, 697:

'It is not indispensable, in order to lay a proper foundation for the legal presumption of a grant, to establish the probability of the fact that in reality a grant ever issued. It will be a sufficient ground for the presumption to show that, by legal possibility, a grant might have issued. And, this appearing, it may be assumed, in the absence of circumstances repelling such conclusion, that all that might lawfully have been done to perfect the legal title was in fact done, and in the form prescribed by law. ' Penny v. Central Coal & Coke Co., 71 C.C.A. 135, 139, 138 F. 769, 773.

The true rule of law upon this subject is, therefore, that if a title by purchase were necessary to sustain the legal title of the trustees to this property in the case in hand, then, if by any legal possibility a title by purchase could have been acquired by them in any manner known to the law, the uninterrupted, exclusive, adverse possession of the trustees for more than 20 years raises the conclusive presumption that such a title was acquired by them.

The trustees proved the facts established at the first trial in the same way upon the second trail, which is here for review; but counsel for the Coal Company insist that those facts were insufficient to sustain a finding by the jury that the trustees had obtained a title by purchase, because the Coal Company proved that on May 26, 1869, the register of deeds, with whom the pastor left his deed to be recorded, registered a deed dated April 19, 1869, made by McCullom and acknowledged before Watts, to the free colored inhabitants of township 5 N. of range 31 W. of the fifth principal meridian, of an impossible and hence void description of land in that township, and that no other deed from McCullom appeared in the index or in the records of the county between 1863 and 1883. The plaintiffs, however, proved that the deed to the defendant and the deed to its grantor, both of which conveyed a title claimed under McCullom, contained after the descriptions therein these words, 'Excepting out of the northwest quarter of the said southwest quarter (N.W. 1/4 of S.W. 1/4) two acres upon which stands a church building heretofore known as the Wollage Colored Church, used as a church, schoolhouse, and graveyard;' that their church was known by that name; and that, when the Coal Company obtained its title, the meeting house and the graveyard were within 200 feet of the shaft of its mine and in plain sight of it. Counsel argue that this evidence conclusively proved that the deed which the pastor of the church received and recorded was the void deed from McCullom to the colored inhabitants of section 5, and from this fact they draw the inference that there could not have been a conveyance to the trustees of this church.

Let the fact upon which they base this inference be conceded; but the fact that an alleged grantor made a void deed to others no more repels the presumption that he made one to alleged grantees than the absence of all proof of such a deed. In the absence of all proof of that character, the exclusive uninterrupted, adverse possession of the plaintiffs for more than 20 years, and the presumption...