Davis v. Rexford

• Decision Date: 18 December 1907
• Citation: 59 S.E. 1002,146 N.C. 418
• Parties: DAVIS v. REXFORD et al.
• Court: North Carolina Supreme Court

59 S.E. 1002

146 N.C. 418

DAVIS v. REXFORD et al.

Supreme Court of North Carolina

December 18, 1907

Appeal from Superior Court, Buncombe County; Guion, Judge.

Action by S. P. Davis against C. H. Rexford and others. From an order removing the cause, plaintiff appeals. Reversed.

Brown J., dissenting.

A petition to remove a cause must be decided upon the pleadings and record as they are when the petition is filed.

On petition to remove a cause, it is for the federal court to pass upon the allegation of fraudulent joinder of defendants to prevent removal; any finding thereon by the state court not binding the federal court.

Plaintiff alleges: "That on December 10, 1903, the defendant J. H Tucker was, and for a long time prior thereto had been, a duly licensed attorney at law, residing and practicing his said profession at Asheville, N.C. That on the before-mentioned date the defendants C. H. Rexford and W. A Rexford were capitalists, trading and seeking investments in mineral and timber lands in North Carolina and other states as the plaintiff is informed and believes. That on and before the 10th day of December, 1903, the plaintiff controlled by options certain kaolin properties in Swain county, N.C. That on or about said 10th day of December, 1903, the plaintiff and the defendants entered into a contract between themselves, by which the plaintiff was to undertake to purchase said properties and certain other kaolin properties which the parties deemed necessary to complete the mining boundary which they desired to control. That, so soon as the plaintiff secured the necessary deeds and contracts for the purchase of said properties, the defendant J. H. Tucker should investigate the title to all said properties, and should do and perform all other legal services necessary in the premises. That, upon the approval of the titles to said properties by the said Tucker, the said defendants C. H Rexford and W. A. Rexford should furnish and pay all such sums of money as might be required to complete the purchase of said properties. That thereupon the titles to all said properties should be vested in the plaintiff, who should hold the same for the use, profit, and advantage of all said parties in equal shares; that is to say, one-fourth for each of said parties. Thereupon the said defendant, J. H. Tucker prepared a brief and informal written memorandum of said contract, which was duly executed by the plaintiff, and which was then and there delivered to and retained by said Tucker, and which, as the plaintiff is informed and believes, is still in the possession or under the control of the said Tucker or his codefendants. The plaintiff was not furnished with, and did not retain, a copy of said memorandum of contract, but on or about the _____ day of _____, 1907, said Tucker furnished the plaintiff what purported to be a copy of said memorandum of contract, and which the plaintiff upon the information so furnished him by the said Tucker hereby alleges to be a substantially correct copy of said memorandum of contract, and which is in words and figures as follows: 'It is agreed that S. P. Davis shall act as agent of C. H. Rexford, J. H. Tucker, W. A. Rexford, and himself in the purchase and option of kaolin properties on Larkey creek, and between that and the Tuckaseigee river in Swain county. The said Rexfords agree to furnish the money necessary to buy all the said property necessary to complete the mining boundary, and, when the same is completed, the said Davis shall execute a deed in fee simple as follows: One-fourth to C. H. Rexford, one-fourth to W. A. Rexford, one-fourth to J. H. Tucker, and one-fourth to himself. This December 10, 1903. S. P. Davis. [Seal.]' That very shortly after the making of the contract set out in the preceding paragraph hereof, to wit, on or about the _____ day of December, 1903, and pending the completion of the purchase of said kaolin properties, the scope of said contract was, by mutual parol agreement of all said parties, enlarged and extended so as to include the purchase of timber lands in the western part of North Carolina and the northern part of Georgia, at the then prevailing prices of such lands, approximately, to the amount or area of not less than 25,000 acres, and as much more than said amount or area as the plaintiff might be able to secure at the prices aforesaid, and with the further provision that the said C. H. Rexford and W. A. Rexford, in addition to paying all the purchase price of said lands, should advance and pay all expenses proper and necessary to be incurred by the plaintiff in and about the option and purchase of said lands, including monthly payments to the plaintiff of $100 for the support of himself and family, while he was engaged in said work, and that all amounts so advanced and paid by them should be added to and deemed a part of the purchase price of said lands, and that, in consideration of such advancements and of the enlarged scope of the enterprise, the said C. H. Rexford and W. A. Rexford should be entitled to be reimbursed, from the proceeds of the sale of such timber lands or of the timber on said lands, all moneys advanced by them for expenses as aforesaid, and for the purchase money of said lands, and that the profits arising from the purchase of said timber lands, whether by resale of such lands or by marketing the timber thereon, should be divided in the proportions named in said contract, to wit, one-fourth to each of said parties, so that the contract between the plaintiff and the defendants, after the same was amended as aforesaid, was, in substance, as follows, to wit: That the plaintiff should act for C. H. Rexford, J. H. Tucker, W. A. Rexford, and himself in the option and purchase of the kaolin properties on Larkey creek and between that and Tuckaseigee river in Swain county, and in the option and purchase of timber lands in the western part of North Carolina and the northern part of Georgia, to the amount or area of not less than 25,000 acres, and as much more than said amount as he might be able to secure at the then prevailing prices for such lands, approximately; that the said J. H. Tucker should examine the titles and do all necessary legal work in connection...