Cook v. Lasher

• Decision Date: 05 May 1896
• Docket Number: 151.
• Citation: 73 F. 701
• Parties: COOK et al. v. LASHER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

73 F. 701

COOK et al. v. LASHER et al.

No. 151.

United States Court of Appeals, Fourth Circuit.

May 5, 1896

C. C Watts, of Watts & Ashley (Okey Johnson, on the brief), for appellants.

S. L Flourney, of Couch, Flourney & Price (J. R. Sypher, on the brief), for appellees.

Before SIMONTON, Circuit Judge, and HUGHES and PAUL, District Judges.

PAUL District Judge.

This is an appeal from a decree of the circuit court of the United States for the district of West Virginia. The suit was brought by the plaintiffs below to set aside and annul certain deeds made to the appellants by W. B. McClure commissioner of school lands for Wyoming county, W. Va., conveying certain lands claimed by the plaintiffs. These lands were sold by said McClure, commissioner of school lands, under an order of the circuit court of Wyoming county, in a proceeding in that court in the name of said commissioner of school lands against a tract of land of 480,000 acres, granted by the commonwealth of Virginia to Robert Morris, by a patent dated the 23d day of March, 1795. The land involved in the controversy is a tract containing 36,750 acres, and the bill alleges that it is part of two grants from the commonwealth of Virginia, to wit, the above grant for 480,000 acres, and another grant for 320,000 acres, dated March 4, 1795. These lands, when patented, were situated in Wythe county, Va., but in 1799 the county of Tazewell was formed, and they were embraced in the boundaries of that county. In the year 1824 the county of Logan was formed, and part of the lands were embraced in that county, leaving the balance in Tazewell county. In 1850, Wyoming county was formed out of Logan county, and embraced that portion of these lands which before was situated in Logan county. McDowell county was formed out of Tazewell county in 1858, and embraced the greater part, if not all, of these lands, then situated in Tazewell county. By deed bearing date March 13, 1797, Robert Morris conveyed both the 480,000-acre tract and the 320,000-acre tract to William Cramond, and from William Cramond the title to both tracts passed, by mesne conveyances, to Henry Cramond. The two tracts, prior to 1842, became forfeited in the name of Henry Cramond to the state of Virginia, for the non-payment of taxes thereon prior to that year; and in 1843 the lands embraced in both grants were sold under proceedings had by the commissioner of forfeited and delinquent lands for Tazewell county, in the circuit court for Tazewell county, and were purchased by William Cramond. This sale was confirmed by the court; and on July 20, 1846, a deed was made to the heirs of said William Cramond, he having died intestate after the confirmation of the sale. By deed dated November 5, 1846, three of the grantees in the last-mentioned deed conveyed said tracts of land to their co-grantee, Henry Cramond, who on the same day conveyed them to Charles Freinour; and Freinour, on the 22d of November, 1846, conveyed 50,000 acres, by metes and bounds, to Thomas Beck; and on March 1, 1847, Herman conveyed undivided parts of said tracts of land to Michael Bouvier and several other distinct purchasers. Bouvier and the other purchasers of undivided interests conveyed the whole 750,000 acres to John Telford, to secure a debt of $6,000. In 1848, said Telford assigned the mortgage and debt to M. Bouvier, and said Bouvier brought a chancery suit in the circuit court of Tazewell county to foreclose the mortgage; and under a decree in said suit, in 1851, the lands were sold, and purchased by M. Bouvier, and were conveyed to said Bouvier by Stras, special commissioner of the circuit court of Tazewell county, by deed dated October 10, 1852. Bouvier, in 1852, had a resurvey made of the lands, and it was ascertained that the two tracts, after deducting the 50,000 acres conveyed by Freinour to Beck, contained only 157,500 acres, instead of 750,000 acres. Bouvier had the two tracts, now found to contain only 157,500 acres, divided by metes and bounds into six tracts, varying in quantity, one of which contained 36,750 acres, and another 8,400 acres. Bouvier, by deeds dated March 9, 1853, conveyed four of said parcels to other persons, and retained the parcel of 36,750 acres and the 8,400 acres, aggregating 45,150 acres. By deed dated January 7, 1865, Bouvier conveyed the 36,750-acre tract by metes and bounds to Jonathan Patterson, Jr., and others. Patterson and his co-grantees, by deed dated January 7, 1865, conveyed the same to the appellees; and the tract of 36,750 acres is the land in controversy in this suit.

In November, 1881, W. B. McClure, commissioner of school lands for Wyoming county, filed his report in the circuit court of that county, stating that there was situated in said county a large survey of land, containing 480,000 acres, granted to Robert Morris on the 23d day of March, 1795; and that the same was forfeited, under the laws of West Virginia, for failure of the owner to cause the same to be entered on the land books of Wyoming county, and assessed with taxes thereon. He further reported that this tract of land had never been on the land books of Wyoming county, nor on the land books of McDowell county, where a small portion of the said land is situated. He further reported that within the said 480,000 acres were several large tracts, claimed by various parties, among them the tract in controversy, for 36,750 acres, claimed by Francis Lasher; but that these parcels had been forfeited for nonentry along with the 480,000-acre tract out of which they had been taken. On the filing of this report, a decree was entered ordering a rule to be awarded against the unknown heirs of Robert Morris, and all persons claiming title by, through, or under the said Morris, and against the said Francis Lasher and other persons named, and against all persons whomsoever who set up or claimed any right or title to the said 480,000 acres, or any portion thereof, summoning them to appear at the first day of the next term of said court to show cause why said tract of 480,000 acres should not be sold as school lands for the benefit of the school fund of the state. At the April term, 1882, a decree was entered directing a sale of said 480,000 acres of land, the same to be sold in parcels and sections not exceeding 640 acres each. In pursuance of said decree, said commissioner sold a large number of tracts, 47 of which, amounting to 18,000 acres or more, are claimed by the plaintiffs as their land; and deeds were ordered to be executed to the purchasers, the defendants below, and the same were subsequently executed by said McClure, commissioner of school lands.

The plaintiffs filed their bill in this cause in June, 1890, attacking the sales made in said forfeiture proceedings and the deeds made by said McClure, commissioner, to the purchasers; and on February 25, 1895, a decree was entered by the court below, annulling the forfeiture, and the proceedings thereon, the sale made therein, and the deeds made to the purchasers of said lands. This is the decree from which the appeal is taken.

The first assignment of error is that the court erred in canceling the deed from William B. McClure, commissioner of school lands, to A. J. Ellis, made on the 29th day of January, 1883, because the said land was by the said A. J. Ellis conveyed to the petitioner Nicholas B. Keeney and others, on the 18th day of January, 1888, as appears by Exhibit 7, with the answer of defendants, which deed was made to said Keeney and others more than two years before the institution of said suit; and the said Keeney was not therefore a pendente lite purchaser, and, at the time the decree was rendered in this cause, was not before the court, no process having been served upon him, and he having made no appearance in the cause, by answer or otherwise. The record shows that ' . . . Keeney' was named a party defendant in the original and amended bills, but that process was not served on him, the return being, ' . . . Keeney not found. ' The first appearance of said Nicholas B. Keeney in the proceedings in the court below is as one of the petitioners for an appeal to this court. As he was not a party to the record, he has no right of appeal to this court, and cannot be heard. It is well settled that no one but a party to the record has the right to an appeal or a writ of error. 2 Fost.Fed.Prac. § 482; Bayard v. Lombard, 9 How. 530; Godfrey v. Terry, 97 U.S. 171; Ex parte Cutting, 94 U.S. 14; Ex parte Cockroft, 104 U.S. 578.

Section 737, Rev. St. provides:

'When there are several defendants in any suit at law or equity, and one or more of them are neither inhabitants of, nor found within, the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it, but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of, nor found within, the district as aforesaid, shall not constitute matter of abatement or objection to the suit.'

Under the provisions of the statute, and under equity rule 17, which is to the same effect, Keeney would not be concluded or prejudiced by the decree against the parties properly before the court. The parties to the record are not affected by the absence of Keeney. Their rights are distinct from his, and all the defenses they were entitled to make could be made as well as if Keeney had been a party to the record.

In Elmendorf v. Taylor, 10 Wheat. 152, the supreme court said:

'Wherever the case may be completely decided as between the litigant parties

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