Iguano Land & Mining Co. v. Jones
| Decision Date | 02 February 1909 |
| Citation | 64 S.E. 640,65 W.Va. 59 |
| Parties | IGUANO LAND & MINING CO. v. JONES et al. |
| Court | West Virginia Supreme Court |
Submitted September 9, 1908.
Rehearing Denied May 14, 1909.
Syllabus by the Court.
Equity will grant relief, by way of enjoining the commission of such acts as will constitute, when completed, a cloud upon title in all cases where it would have jurisdiction to remove the cloud created by the completion of the acts which are sought to be enjoined.
[Ed Note.-For other cases, see Quieting Title, Cent. Dig. §§ 34 35; Dec. Dig. § 8. [*]]
Before relief will be granted upon a bill to remove cloud from title, plaintiff must be in possession of the land, and must show that he has good title thereto; and, in order to claim successfully the benefit of a deed made to his remote grantor, which operates only as color of title, he must connect himself by proper conveyances with such remote grantor, and must show possession by himself, and those under whom he claims, for such length of time as will operate to ripen his color of title into a good and sufficient title.
[Ed Note.-For other cases, see Quieting Title, Cent. Dig. §§ 36-42; Dec. Dig. § 10. [*]]
In order for a former adjudication, made by a court of record, to operate as a bar to another suit, the record of such former suit must show service of process upon, or appearance by, defendant, and judgment or decree upon the merits.
[Ed. Note.-For other cases, see Judgment, Dec. Dig. §§ 562, 576. [*]]
Parol evidence, when not inconsistent with the record, and not impugning its verity, is admissible to prove that a former suit or action, had in a court of record between the same parties or their privies, in which judgment was rendered on the merits, involved matters in issue in the suit or action on trial, and were necessarily determined by the first judgment or decree.
[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1811; Dec. Dig. § 951. [*] ]
A mere recital, in the answer of a defendant, to a bill filed by a corporation, although the answer is sworn to, referring to plaintiff as "a pretended corporation," is not such a denial of the existence of the corporation, under section 41, c. 125, of the Code of 1899, of West Virginia (Code 1906, § 3861), as puts the matter in issue.
[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 2058; Dec. Dig. § 514. [*]]
Appeal from Circuit Court, Putnam County.
Bill by the Iguano Land & Mining Company against R. A. Jones, Mary Patton Hudson, and others. Decree for complainant, and Mary Patton Hudson appeals. Reversed and rendered.
Simms, Enslow, Fitzpatrick & Baker, for appellant.
J. H. Nash and Brown, Jackson & Knight, for appellee.
This is a suit in equity, brought in the circuit court of Putnam county by the Iguano Land & Mining Company, a corporation, against R. A. Jones and others for the purpose of removing, as a cloud upon plaintiff's title to a tract of 2,500 acres of land, the claim of title asserted by the defendants to a portion of said 2,500 acres, and for the purpose of enjoining said defendants from asserting title thereto, and from taking further steps to redeem their title, which is admitted to be forfeited, and to enjoin them, their agents, and employés from taking possession of, or cutting timber upon, any part of said 2,500 acres of land claimed by plaintiff. The defendants demurred to the bill, and the demurrer was overruled. Later they filed their answer, practically denying all the material allegations of plaintiff's bill. On the 23d day of August, 1899, a temporary injunction was awarded according to the prayer of the bill. A survey was made under order of court, and the report, accompanied by maps made of such surveying as was done by the surveyor, constitutes a part of the record. The deposition of Jas. L. McLean was taken on behalf of the plaintiff, and the cause came on to be finally heard on the 23d day of February, 1902, when a decree was made perpetuating the injunction. From this decree one of the defendants, Mary Patton Hudson, appealed.
The record discloses the following facts: That the plaintiff claims title mediately from Samuel Hollingsworth, who was the patentee of the commonwealth of Virginia of a tract of 100,000 acres of land situate on Pocatalico river, a tributary of the Kanawha river, in what was then Greenbrier county. This tract passed from Hollingsworth by deed to Mathias Bruen, who devised the same to different persons, among whom were plaintiff's remote grantors. In 1850 this 100,000 acres of land was partitioned among Alexander McWhorter Bruen, Henry Whitehouse, and Frances D. Bruen and Mary S. Bruen, tenants in common, by which partition deed Alexander McWhorter Bruen became the owner in severalty of the 2,500 acres claimed by plaintiff. On the 2d day of March, 1855, Alexander McWhorter Bruen and wife conveyed this 2,500 acres to E. G. Tyler, and on the same date said Tyler executed a mortgage upon the same to the said Alexander McWhorter Bruen to secure the payment of $22,500. On the 1st day of July, 1875, E. B. Knight, special commissioner, made a conveyance of this land to E. W. Bond and J. L. McLean, in the proportion of two-thirds to Bond and one-third to McLean. This deed recites that it was made pursuant to decrees made in the cause of A. M. Bruen against E. G. Tyler and others, in the circuit court of Putnam county, rendered on the 16th day of November, 1866, the 11th day of November, 1868, and the 11th day of June, 1869, the last-named decree confirming the sale, and a decree on the 3d day of April, 1875, appointing said commissioner to make the deed. Witness McLean states in his deposition that he produced for the inspection of the defendants' counsel, at the time of the taking of his deposition, a certified copy of the will of Mathias Bruen, certified copies of deeds to plaintiff, and also one original deed to E. G. Tyler, for the 2,500-acre tract; but this original and these copies do not appear in the record. McLean's deposition also proves that the plaintiff, and those under whom it claims, have been in actual and continuous possession of said 2,500 acres of land since 1865, and have paid all the state and other taxes charged and chargeable thereon since the year 1865.
Concerning the defendants' title to 1,137 acres of land, a small portion of which extends into the boundary of the 2,500 acres claimed by the plaintiff, it appears that in 1865 there was granted to H. O. Middleton by the state of West Virginia, by metes and bounds, a tract of 1,137 acres, all of which lies wholly within the bounds of the 100,000-acre Hollingsworth grant, and a small portion of which extends into plaintiff's 2,500-acre tract. The 100,000-acre Hollingsworth patent is an inclusive and exclusive grant, and from its operation certain small surveys, made by a man by the name of Lockhart, were expressly excepted; one tract being a 500-acre survey, another 400 acres, and still another 300 acres. It appears from the record that there was another small survey of 200 acres made by Lockhart which joins his 300-acre survey on the north, a small portion of which is included in the bounds of plaintiff's 2,500 acres. This survey is older than the patent under which plaintiff claims title, but it is not one of the excepted surveys; it is not mentioned or referred to in the grant to Hollingsworth. These three excepted surveys, viz., 300, 400, and 500 acres, and also the Lockhart survey of 200 acres, were all, on the 22d day of July, 1784, granted by the commonwealth of Virginia to Henry Banks, the remote assignee of Lockhart. The Banks' title is admitted to have been forfeited to the state for nonentry on the land books and nonpayment of taxes before the date of the grant of the 1,137 acres was made to H. O Middleton. Reference to these several grants to Banks will assist very materially in determining their relative location. It appears from the grant of the 500 acres that it adjoins the 400 acres, and from the grant of the 200 acres that it joins the 300 acres on the north; and the 400 acres is described as lying on the northwest branch of Pocatalico, a branch of the Great Kanawha, about three miles north of the mouth of the Pocatalico, and the 300 acres is described as lying on the northwest fork of the northwest branch of the Pocatalico, a branch of the Great Kanawha. The 500 acres is also described as lying on the northwest branch of the Pocatalico. The entry of the 300 acres recites that it is near his 400 acres. From these descriptions it appears that all four of these surveys lie in the same immediate vicinity, and that the 300 and 200 acre tracts join, and that the 400-acre and 500-acre tracts join, but are not all contiguous. It is claimed by the defendants that H. O. Middleton embraced these excepted surveys within the bounds of the 1,137 acres, for which he obtained a grant in 1865; but it appears, from the survey and map filed in this cause, that the 1,137 acres failed to include about half of the 500-acre survey, and also about half of the 300-acre survey. The 400 acres excepted is not located, nor does it appear from the record whether it is embraced within the bounds of the 1,137 acres or not. Middleton failed to enter his land on the land books of Putnam county, and failed to have the same assessed with taxes until the year 1874, when it first appears on the land books charged to Henry O. Middleton for the taxes of said year, and for the preceding years back to 1869, inclusive. But this back tax does not appear to have been paid. In 1875 and 1876 it appears on the land books in the name of Robert Patton, under whom the defendants to this suit claim, and was returned delinquent for the nonpayment of taxes for those years. ...
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