Jackson v. Jackson

• Decision Date: 04 November 1909
• Docket Number: 774.
• Citation: 175 F. 710
• Parties: JACKSON v. JACKSON et al.
• Court: U.S. Court of Appeals — Fourth Circuit

175 F. 710

JACKSON v. JACKSON et al.

No. 774.

United States Court of Appeals, Fourth Circuit.

November 4, 1909

James S. McCluer and Seth T. McCormick (McCluer & McCluer, on the brief), for appellant.

B. M Ambler and Wm. Beard (W. W. Van Winkle, Mason G. Ambler, and V. B. Archer, on the briefs), for appellees.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

GOFF Circuit Judge.

It is alleged in the bill that in November, 1899, H. C. jackson, A B. White, G. A. Newlon, and W. W. Jackson entered into an agreement that they would furnish in equal amounts money sufficient to option and control what was called the 'Gilmer county coal field,' in West Virginia; that in their written contract it was set forth they should share alike in all the options, which were taken some in the name of G. A. Newlon, some in the name of A. B. White and H. C Jackson, and many of them in the name of George Gillmor trustee, who was acting as their agent; that in the year 1900 they concluded to take no more options on said coal lands, having then acquired about 25,000 acres; that during the time these options were being taken David A. Nease and those associated with him, were also taking like options on coal lands in the same locality, which frequently conflicted with those which had been acquired by H. C. Jackson and those interested with him, thereby causing controversies between such claimants; that in adjustment of the same an agreement was entered into on May 5, 1900, between the parties interested in such options, by which it was provided that the then pending suits concerning them should be dismissed, and that the coal rights involved should be held by Gillmor, as trustee, under the terms of said agreement; that H. C. Jackson and his associates should form a corporation, to which said trustee should convey the interests so held by him, when requested by said Jackson, A. B. White, G. A. newlon, and W. W. Jackson so to do, such conveyance to be as required by the stipulations of said agreement; that it was also agreed that said Jackson and associates should arrange for the extension and construction of the Little Kanawha Railroad into the region of the coal field mentioned, and should organize a corporation for the purpose of taking over the options referred to; that if said railroad was so constructed Nease and his associates were to have one-fifth of the royalty paid for the coal that might be mined from the property, but if the road was not built by December 1, 1900, then said parties were to have an undivided 49/100 interest in the coal, while Jackson and his associates were to own the remaining 51/100 thereof; that in November, 1900, the last-named parties made two contracts, one with B. E. Cartwright, of the first part, George Gillmor, trustee, of the third part, and the Little Kanawha Railroad Company, of the fourth part-- said Jackson and associates constituting the parties of the second part-- by which agreement Cartwright, in conjunction with Jackson and associates, was to cause to be performed all the acts set forth therein as essential to the requirement that Gillmor, trustee, should account to Jackson and associates for all the profits accruing from said coal rights, except the royalty provided for Nease and his associates; that it was also provided in such agreement that the parties to it should at an early day organize a corporation under the laws of the state of West Virginia to which the trustee, Gillmor, was to convey the legal title of the coal options held by him.

Other provisions of that contract are not essential to the disposition of the questions now before this court.

It further appeared from the bill that Cartwright failed to comply with the terms of the agreement, and, after having paid considerable sums of money in an effort so to do, forfeited the same, no further proceedings having been taken under it; that by the other agreement, made in November, 1900, it was provided that a consolidated company should be formed, which should take over the Little Kanawha Railroad Company and the coal properties mentioned; that under the contract of May 5, 1900, the Braxton Coal Company was organized, and Gillmor, trustee, conveyed to it all the contracts, options, and rights held by him relating to said coal lands, the deed for the same bearing date November 28, 1900, complainant alleging that W. W. Jackson-- under whom she claims-- was not a party to the formation of that company, and that he has not, nor has she, ever received any of its stock; that under the first agreement W. W. Jackson paid for the use of the partnership so formed the sum of $1,250, and that he on April 11, 1901, made a contract with H. C. Jackson, in which he gave the latter an option to purchase all of the right, title, and interest of him, said W. W. Jackson, in the profits on the coal mentioned, under which option H. C. Jackson purchased said rights for the sum of $3,000, and on June 5, 1901, sold and assigned them to the complainant for the sum of $3,200; that the Braxton Coal Company, after the conveyance to it of said coal properties by Gillmor, trustee, sold and conveyed the same to Richard C. Kerens, trustee, for the sum of $17 per acre, who as such trustee, by deed dated November 28, 1903, conveyed them to the Washington Coal & Coke Company, which company on the 23d of January, 1904, sold and conveyed the same to the Coal & Coke Railway Company.

The said Kerens is alleged as having acted as trustee for Stephen B. Elkins and Henry G. Davis, citizens of the state of West Virginia, who with the companies mentioned and the other parties referred to, except Cartwright, were made defendants to this bill. The complainant asked the court to decree that she was the owner of an undivided one-fourth interest in the lands referred to; that the deed from Gillmor, trustee, to the Braxton Coal Company, and all subsequent deeds conveying said lands, be set aside as in fraud of her rights; that, if possible and equitable, a partition of the lands be made among those entitled thereto; otherwise, that they be sold and the proceeds be distributed among the parties, as their interests should be made to appear to the court. Complainant further prayed that, if the court should find that a specific execution of the original contract could not be decreed, she might then be granted alternative relief, in this: That the cause be referred to a commissioner, with directions to ascertain and report the amount of coal and coal lands that came into the ownership of H. C. Jackson and his associates under the agreements mentioned, their value and the purchase cost of the same, the costs and expenses incurred in procuring them, and that then said Jackson and associates be decreed to pay her the proportion thereof found to be due her.

To this bill H. C. Jackson, A. B. White, G. A. Newlon, and G. A. Newlon, trustee, filed their demurrer, assigning as grounds therefor that the court was without jurisdiction; that complainant claims that on June 5, 1901, H. C. Jackson assigned to her an option that had been on April 11, 1901, made by W. W. Jackson, whereby the latter agreed, upon payment of $3,000 in 90 days, to convey to said H. C. Jackson all of the profits to which W. W. Jackson could be entitled under certain contracts dated May 5, 1900, and November 17, 1900, which profits were to arise from coal properties vested in the Braxton Coal Company; that the contracts mentioned required the defendant Gillmor, trustee, to convey all said property to a coal company when formed; that the Braxton Coal Company was formed pursuant to the contracts, as is shown in the bill, which contracts W. W. Jackson had executed; that the contract of November 17, 1900, limited the claim of W. W. Jackson to a share of profits and to having a refund of the money expended by him; that W. W. jackson and any one claiming under him was estopped from claiming more than his share in the profits arising from the sale of the coal, after having been repaid the money advanced by him; that with such allegations in the bill complainant asks for a decree against the defendants, based on the present value of one-fourth of the property; that H. C. Jackson assigned to complainant any right he had under the option from W. W. Jackson, expressly providing that there should be no recourse on him, and that nevertheless complainant seeks to hold all the defendants equally liable; that complainant is estopped by the terms of the option, under which she claims, and by the contracts referred to, to dispute the validity of the deed which vested in the Braxton Coal Company all the interests of W. W. Jackson in said coal properties; that the complainant is estopped by laches, having waited until the coal lands had been transferred to the railroad company and had greatly increased in value, before she instituted her suit; that the bill is multifarious; that the suit is instituted by complainant, a resident and citizen of Pennsylvania, and that one of the defendants, W. W. Jackson, is also alleged to be a resident and citizen of that state, and that George Gillmor, trustee, a defendant and a necessary party, is also a resident and citizen of the same state.

Other grounds of demurrer assigned by the defendants mentioned will not now be referred to; they not being material to the questions to be disposed of. This demurrer was overruled by the court below; the decree entered concerning it not being directly involved in this appeal.

The defendants Richard C. Kerens, in his own right and as trustee, S. B. Elkins, Henry G. Davis, the Washington Coal &amp Coke Company, and the Coal & Coke Railway Company filed a demurrer to the bill, setting forth as cause, among other reasons, that complainant, a citizen of...