Craig v. Dorr

• Decision Date: 01 May 1906
• Docket Number: 624.
• Parties: CRAIG v. DORR et al.
• Court: U.S. Court of Appeals — Fourth Circuit

145 F. 307

CRAIG v. DORR et al.

No. 624.

United States Court of Appeals, Fourth Circuit.

May 1, 1906

McCluer & McCluer, for appellant.

George W. Johnson (John H. Holt and Jake Fisher, on briefs), for appellees.

Before PRITCHARD, Circuit Judge, and PURNELL and KELLER, District judges.

PURNELL District Judge.

In 1859 the state of Virginia granted to Thomas Mathews, Mason Mathews, and John Brown 2,100 acres of land in what is now West Virginia. John Brown conveyed to Thomas Mathews and Mason Mathews his undivided interest in two-thirds of this. Thomas Mathews and Mason Mathews conveyed to Betsy Brown. Thomas Mathews and Mason Mathews became the owners of 1,400 acres of this tract, and Betsy Brown 700 acres. Six hundred and fifty acres of this was assessed in 1873 as belonging to Betsy Brown, and 1,400 acres were assessed as the property of Thomas Mathews, Mason Mathews, and John Brown. All of these lands were returned delinquent for nonpayment of taxes to the sheriff of Nicholas county to be sold. The sheriff sold them and they were purchased by the state. The lands were then left off of the assessor's books, with a note that the same had been purchased by the state, and to certify the lands to the commissioner of school lands. The assessor continued them on the landbooks, and they were returned again for nonpayment of taxes in 1873 and 1874, and were sold by the sheriff in October, 1875, and again purchased by the state. The assessor or commissioner of revenue continued them on the books for the years 1875 and 1876, and they were again sold in 1877 and again purchased by the state. They were still continued on the books for 1877 and 1878, and were sold again in 1879 and purchased by the state, as also in 1881. James F. Hamilton claimed to have purchased 800 acres of the 2,100 acres, and received his deed from the clerk of the county court of Nicholas county on the 24th of August, 1884. But it is claimed by the original plaintiffs in this suit that this deed shows a sale of a 610-acre tract of this land in the name of Betsy Brown as delinquent for 1879 and 1880, and that this deed was null and void, that it should have been returned by the commissioner of school lands, and, if it had, it would have been sold as school lands.

It is alleged that all of the original parties were tenants in common in the 2,100 acres of land. It had never been partitioned, and the 650 acres, if delinquent, was returned improperly or in the wrong name, and the deed shows 800 acres instead of 650 acres. The plaintiff charged irregularity on the part of the sheriff in returning the land delinquent. He charges that the sale in the name of Mathews and Brown is irregular and therefore void and conveyed no title; that the purchase by the state was void, because it was not properly certified by the clerk of the court of Nicholas county; that upon petition for the sale of these lands the petition was referred to James S. Craig, commissioner in chancery, and required him to report the matters and things contained in the order of reference; that he was the same James S. Craig who was commissioner of school lands; that he filed his report, which was to the prejudice of complainant and in violation of law; that on the 15th of August, 1887, the court decreed that the land should be sold; that James S. Craig, commissioner of school lands, on the 16th of September, 1887, sold the same to C. P. Dorr for $1,085; $395 was cash, and the sale was confirmed on the 23d of November, 1887, to C. P. Dorr. The plaintiff claimed further that this was an illegal sale, and H. M. Mathews gave a deed of trust for moneys due to Alexander Mathews, his brother, who afterwards died, and the sale was made under this trust, and Alexander Mathews became the purchaser. The original plaintiff further claimed that on the 3d of January, 1892, he purchased of Mason Mathews and Thomas Mathews their interest in this tract of land the interest of the heirs of Mason Mathews, and received a deed for it. He claims that no legal sale was made for the land for delinquent taxes, and no legal sale was ever made by the commissioner of school lands, either as delinquent or forfeited, and he was entitled to his deed. They alleged that Dorr had not paid the commissioner of school lands the notes given by him for the deferred payments; nor had the commissioner given Dorr a deed for the land; and asked that Craig be enjoined as commissioner from making a deed to Dorr, and Dorr be enjoined from taking possession of the land, and the cloud on the title be removed.

The defendant Craig filed his answer to this original bill, admitting the material allegations together with his exhibits, the notes given for the deferred payments, but claiming the sale made by him was in all respects regular and legal. The plaintiffs then filed an amended bill. This bill was filed on August 6, 1894. The fifth paragraph, as an amendment to his original bill, reads as follows:

'That by way of further amendment to his bill of complaint your orator is ready and willing and now here offers to pay such defendant as may be justly entitled to receive the same whatever purchase money he has legally paid to Commissioner Craig on account of the purchase of your orator's land, or to any sheriff on account of subsequent taxes properly assessed and charged thereon, if any such taxes have been paid, which upon information your orator denies, with interest on said moneys from the time they were so paid.'

On the 8th of January, 1896, Dorr and Hutton filed their joint and amended answer to the complainant's bill. The exceptions to the original answer were then withdrawn, and the joint amended answer was replied to generally. On the 31st of January, 1896, Dorr and Hutton filed their cross-bill. On the 26th of January, 1898, C. P. Dorr, Elihu Hutton, and King the complainant, prepared an agreed order or decree, by which King was given all of the relief asked for in his bill, and by agreement of the complainant and these two defendants, Dorr and Hutton, the decree of court provided this cause retained to settle the differences between the defendants Dorr and Hutton on the one side and James S. Craig on the other. The decree was a decree adjudicating the rights of the plaintiff, and gave to the plaintiff all the relief asked, and settled all of the controversies between the complainant and defendants Dorr and Hutton. After all of the parties had been eliminated from these original suits, and all the relief asked in the original and amended bill of King had been by the court granted, under the agreement between the plaintiff King and the defendants Dorr and Hutton, than the only parties remaining from the original suit were the defendants C. P. Dorr and Elihu Hutton, on the one side, and the defendant James S. Craig on the other. In January, 1902, James S. Craig appeared specially for the purpose of objecting to taking the deposition, taking the ground that no process had ever issued upon said cross-bill, or was ever served upon him, which was set forth in an affidavit. Attention being thus called to the apparent failure to serve the subpoena, process was issued and served. In April, 1902, the defendant James S. Craig demurred to the cross-bill of Dorr and Hutton, which demurrer was set down for hearing, heard, and overruled. Craig afterwards filed a plea...