Chamberlain v. Marshall

• Decision Date: 01 August 1881
• Citation: 8 F. 398
• Parties: CHAMBERLAIN v. MARSHALL and others. [1]
• Court: U.S. District Court — Northern District of Ohio

8 F. 398

CHAMBERLAIN v. MARSHALL and others. ^[1]

United States Circuit Court, N.D. Ohio, Western Division.

August, 1881

William Lawrence, for complainant.

Jeremiah Hall, for defendants.

MATTHEWS Justice.

This is a bill in equity to establish and quiet the title of the complainant to a tract of land of 100 acres in Logan county Ohio, described as Virginia military entry and survey No 5275. The complainant is a citizen of Ohio; the defendant, of Virginia.

The facts of the case, so far as material, are as follows:

On March 17, 1807, Robert Marshall, the ancestor of the defendants, entered a Virginia military warrant, No. 1763 for 100 acres, being entry No. 5275, which was surveyed, and the entry and survey recorded in the surveyor's office of the Virginia military district, at Chillicothe, Ohio, on November 28, 1823, and April 6, 1824.

This entry and survey were for the first time returned to the land-office in July, 1877, and a patent was issued in July, 1877, and January 25, 1878, in the name of the United States, duly signed by the president and countersigned by the recorder of the general land-office, granting the tract described to the defendants, as only heirs at law of Robert Marshall, deceased, who is recited therein to have been the assignee of Robert Alvery, who was assignee of Francis Turner, the soldier whose service in the Virginia line, on continental establishment, is declared to be the consideration of the grant, and the grant therein made purports to be in pursuance of the act of congress of August 10, 1790, and other acts of congress amendatory thereto. The act aforesaid is entitled 'An act to enable the officers and soldiers of the Virginia line, on continental establishment, to obtain titles to certain lands lying north-west of the river Ohio, between the Little Miami and Scioto.'

It appears, from the records of the office of the auditor of Logan county, that in the list of lands in that county returned delinquent by the treasurer of the county for taxes for the year 1841, with the interest and penalty thereon, including the simple tax for the year 1842, there is the following:

Origl. No. of Water- Acres

Proprietors Names. Qn'ty. Entry. course. Org'l Proprietor. Listed.

Marshall, Robert 100 5275 Derby Robert Marshall 100

TOTAL AMOUNT OF TAX.

Value, including Buildings. Township. D. C. M.

189 Perry 8 37 5

2 94 7, cost of survey included.

And notice was thereby given that the tracts in said list, or so much thereof as necessary, would be sold at the court-house in said county on the last Monday in December (26th) by the treasurer. It further appears by the same records, under date of February 27, 1843, that on December 26, 1842, the county treasurer had sold the tract as above described to Jeremiah Asher, the said delinquent sale having been advertised according to law for four weeks in succession in the Logan Gazette, a newspaper published and printed in the town of Bellefontaine, in said county.

On May 20, 1845, the auditor of Logan county executed and delivered a deed, which was duly recorded, conveying to Jeremiah Asher the tract so sold, described as 100 1/4 acres of land and number of entry 5275, that was charged for taxation to Robert Marshall's name, and situated in Perry township. This deed recites that the treasurer of said county, on the last Monday in December, (26th,) in the year 1842, did sell, according to the provisions of the statute in that case made and provided, to Jeremiah Asher, the said tract of land for the taxes, interest, and penalty charged thereon, amounting to $8.37 5, which were paid by the purchaser, and that more than two years had elapsed from the time of said sale and the tract so sold had not been redeemed, and that the certificate of sale had 0een produced to him.

On August 6, 1849, Jeremiah Asher sold and conveyed the tract to Eliza Ann Chamberlain, wife of William Chamberlain, by a deed duly executed and recorded.

In the fall of 1849 the grantees entered into actual possession of the tract, enclosed it, cleared it in part, built a dwelling upon it, cultivated, and otherwise improved it. This possession has ever since been kept up by their successors in the title, the present complainant deriving title by several mesne conveyances from them. Since the fall of 1849 the possession of the complainant has been, with that of his predecessors, under color of title, adverse, open, notorious, and uninterrupted. Prior to that time the tract was in forest and not reduced to any actual occupancy.

On November 20, 1879, the defendants in this suit commenced in this court their action at law against the complainant to recover possession of the land in controversy.

The object and prayer of the bill in this suit is that the patent be cancelled, and perpetually to enjoin the prosecution by the defendants of their action at law; that they be required to release and convey all claim to the land to the complainant, and to establish and quiet the title and possession of the complainant.

The claim of the complainant is that he is in possession of the land, with a complete and perfect equitable title as against the defendants, which he has a right to have established and quieted by the process of this court.

This claim is based on three grounds:

(1) That the patent of January 25, 1878, is void, there being at that time no law in force authorizing its issue, and that consequently the naked legal title is outstanding in the United States; (2) that the tax title under which the complainant, and those through and from whom he derived title, claim, if not shown by the proof to be sufficient and valid, will, after long-continued adverse possession, under such circumstances as are shown in proof, be presumed to be good; (3) that a similar presumption will arise that the original equity of Robert Marshall, under his entry and survey, to a patent, was transferred and conveyed to the complainant, or those under and through whom he derives title.

It is obvious that this bill cannot be supported as a bill quia timet, as known to the equity jurisprudence of chancery courts. In describing the grounds of that jurisdiction, the supreme court of the United States, in the case of Phelps v. Harris, 101 U.S. 376, say:

'The questions, what constitutes such a cloud upon the title, and what character of title the complainant himself must have in order to authorize a court of equity to assume jurisdiction of the case, are to be decided upon principles which have long been established in those courts. Prominent among these are-- First, that the title or right of the complainant must be clear; and, secondly, that the pretended title or right, which is alleged to be a cloud upon it, must not only be clearly invalid or inequitable, but must ue such as may, either at the present or at a future time, embarrass the real owner in controverting it. For it is held that when the complainant himself has no title, or a doubtful title, he cannot have this relief. ' 'Those only,' said Mr. Justice Grier, 'who have a clear, legal, and equitable title to land, connected with possession, have any right to claim the interference of a court of equity to give them peace, or dissipate a cloud in their title.'

Orton v. Smith, 18 How. 265; and see Ward v. Chamberlain, 2 Black, 430, 444; West v. Schnebly, 54 Ill. 523; Huntingdon v. Allen, 44 Miss. 654; Stark v. Starrs, 6 Wall. 402.

And as to the defendant's title, if its validity is merely doubtful, it is more than a cloud, and he is entitled to have it tried by an action at law; and if it is invalid on its face, so that it can never be successfully maintained, it does not amount to a cloud, but may always be repelled by an action at law. Overing v. Foote, 43 N.Y. 290; Meloy v. Dougherty, 16 Wis 269.

Justice Story says:

'When the illegality of the agreement, deed, or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity to direct it to be cancelled or delivered up would not seem to apply, for, in such a case, there can be no danger that the lapse of time may deprive the party of his full means of defence; nor can it, in a just sense, be said that such a paper can throw a cloud over his right or title, or diminish its security; nor is it capable of being used as a means of vexatious litigation or serious injury.' 2 Eq.Jur. 700a.

And the supreme court in that case cites with approbation from the opinion of the supreme court of Mississippi, in a case between the same parties, (Phelps v. Harris, 51 Miss. 789,) as follows:

'This jurisdiction of equity cannot properly be invoked to adjudicate upon the conflicting titles of parties to real estate. That would be to draw into a court of equity from the courts of law the trial of ejectments. * * * The proper forum to try titles to land is a court of law, and this jurisdiction cannot be withdrawn at pleasure and transferred to a court of equity under the pretence of removing clouds from title.'

In the present case, it appears from the bill itself that the complainant has not the legal title. The allegation is that the patent purporting to have been obtained by the defendant from the United States is void on its face, and ab initio for want of authority on the part of the executive officers who have signed and issued it, and by virtue of a positive prohibition of an act of congress. If so, it necessarily results that the legal title to the land in controversy never passed from the United States, and is still vested in it. It also and with equal certainty results that there is no equitable estate in the land subsisting either in the defendant or the complainant; for the legislative declaration...