Jordan v. Marks

• Decision Date: 12 May 1944
• Docket Number: Civil Action No. 917.
• Parties: JORDAN et al. v. MARKS et al.
• Court: U.S. District Court — Western District of Louisiana

55 F. Supp. 204

JORDAN et al. v. MARKS et al.

Civil Action No. 917.

District Court, W. D. Louisiana, Monroe Division.

May 12, 1944.

G. P. Bullis, of Ferriday, for plaintiffs.

Sholars & Gunby, of Monroe, and Young & Watson, of St. Joseph, for defendant Henry M. Marks.

John M. Madison, of Wilkinson, Lewis & Wilkinson, of Shreveport, for Tidewater Associated Oil Co. and Seaboard Oil Co. of Delaware.

Arthur O'Quin, of Blanchard, Goldstein, Walker & O'Quin, of Shreveport, for Carter Oil Co.

PORTERIE, District Judge.

Plaintiffs' prayer is for a judgment recognizing them "as sole owners and possessors of the land described in paragraph 2 hereinabove, free from all claims of defendants of every nature; * * * pray for such additional and equitable relief as to the Court may seem proper in the premises."

A particularized description of the property is not necessary; it is sufficient to say that it is the whole ownership of a certain tract and the undivided half interest in another tract, containing in the whole 220 acres that is involved, both tracts "being the Pinhook Plantation."

The plaintiffs are citizens of the state of Louisiana, except two who are citizens of the state of Illinois; one defendant is a resident of the state of Mississippi (allegedly sole holder of fraudulent title to all property involved); another of the state of West Virginia; and the two others, of the state of Delaware (the latter three being corporations, holders of mineral rights to the property).

The jurisdiction of this court is based upon diversity of citizenship and the matter in controversy being of a greater value than $3000.

A motion to dismiss by defendant Marks, the citizen from Mississippi, was promptly filed, predicated upon "1) Plea to Personal Jurisdiction, to Insufficiency of Process and Service of Process" (subsequently orally waived); "2) Plea to Jurisdiction over Subject Matter"; "3) Failure to State a Claim upon which Relief can be Granted."

The two Delaware corporations also filed a motion to dismiss because of (1) want of jurisdiction, and (2) failure to state a claim upon which relief could be granted. The West Virginia corporation filed a motion to the effect that before it could intelligently answer the complaint because of its vagueness and indefiniteness, the plaintiffs should be ordered to make their complaint more specific and definite in a number of respects.

At the hearing on these motions, there were important stipulations made, to-wit:

(a) "Plaintiffs admit that all sales were made as stated in the motion to dismiss filed by Henry M. Marks, defendant, on December 28, 1943, this admission being only an admission that such sales are shown on the records, and is not an admission of the validity of these sales, which is expressly denied by plaintiffs for the reasons stated in plaintiffs' petition."

The sales in the motion to dismiss referred to by Marks are, quoting:

"Your defendant, Marks, as owner of the undivided interest in the Pin Hook Plantation herein claimed by the plaintiffs and of the other undivided one-half interest therein, as well, made the following sales of portions thereof:

"To Narcisse Jordan Robinson, lots 2 and 7, by deed dated June 8, 1939, recorded Notarial Book `AA', Pg. 585, who resold to Henry M. Marks, defendant herein, an undivided one-half interest in the mineral rights therein by deed dated October 3, 1939, recorded Notarial Book `AA', Pg. 587.

"To Abe Jordan, lot 4, by deed dated October 3, 1939, recorded Notarial Book `AA', Pg. 584, who resold to Henry M. Marks, defendant herein, an undivided one-half interest in the mineral rights therein by deed dated October 3, 1939, recorded Notarial Book `AA', Pg. 587.

"To Abe Jordan, Jr., lot 5, by deed dated February 13, 1940, recorded Notarial Book `BB', Pg. 178, subject to reservation of undivided one-half of mineral rights.

"To Mose Sexton, the 72 acre tract aforesaid, by deed dated July 22, 1939, recorded Notarial Book `AA', Pg. 553, subject to reservation of undivided one-half of mineral rights.

"To Allan Sholars, undivided 4/23rds royalty interest in lots 1-7, incl., and 72 acre tract, by deed dated June 11, 1943, recorded Notarial Book `GG', Pg. 9, who, in turn, sold to R. W. Hair by deed dated June 14, 1943, recorded Notarial Book `GG', Pg. 223.

"Royalty interests have also been sold by the said Narcisse Robinson, Abe Jordan, and Abe Jordan, Jr., covering lots 2, 4, 5 and 7, to Winston L. Stokes, who resold the same to E. R. Whitaker and another, by deeds dated and recorded, respectively, July 8, 1942, in book `EE', Pg. 564, and August 12, 1942, in Book `EE', Pg. 584."

We resume the quotation of the stipulations:

(b) "Plaintiffs further admit that no judgment rendered by this Court annulling the title of defendant Henry M. Marks to all or any part of the land in controversy on the grounds stated in Paragraphs 13 to 18 inclusive of plaintiffs' petition would have any effect on the sales and leases listed for the reason plaintiffs admit that all of the sales and leases therein stated, except those made to parties to this suit, were made to buyers who bought in good faith on the face of the record, hence could not be affected by any alleged fraud, even though such fraud is proved."

(c) "Plaintiffs further admit that the leases granted by the said Henry M. Marks as stated in Paragraph 19 of plaintiffs' petition are likewise leases to innocent third parties, buying on the face of the record, and consequently could not be affected by any judgment of this court rendered for the plaintiffs on the grounds stated in Paragraphs 13 to 18 inclusive of plaintiffs' petition."

The leases referred to, quoting the whole of Article 19, are as follows:

"Said Henry M. Marks has granted mineral leases on said lands in section 19 to defendant, Carter Oil Company, and has granted minerals lease on said lands in Sections 20 and 29 to W. L. Stokes, who assigned said lease to defendants, Tidewater Associated Oil Co. and Seaboard Oil Co., as shown by the records of said Tensas Parish."

We again resume the quotation of the stipulations:

(d) "Plaintiffs further consent to a dismissal by this court as of non-suit on the claims set forth in plaintiffs' petition in Paragraphs 9, 10, and 11 of the petition, reserving the right of plaintiffs to renew such claims in other proceedings."

(e) "Plaintiffs further enter a non-suit herein as to all of the defendants herein except Henry M. Marks, reserving their right to renew this suit in other proceedings."

To this stipulation "(e)" counsel for the Tidewater and the Seaboard Companies made "formal objection to the attempt on the part of plaintiffs to enter a voluntary non-suit," joined by the Carter Oil Company and also by defendant Marks.

The rule on this formal objection is in order. Since there has been no "service of the answer," or even the indication that an answer is in preparation, and since there is no counterclaim, we believe that the plaintiffs may dismiss their action without order of court, or without opponents' consent — the dismissal to be without prejudice. Rule 41(a) (1), Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

There was also a joint admission that all of the vendees in the suit, Henry M. Marks excepted, are residents of the state of Louisiana.

At the conclusion of the hearing the court asked the attorney for the plaintiff this question:

"Is the Court to understand that all of the parties named on page 3 of the motion to dismiss filed by Sholars & Gunby as attorneys for Henry M. Marks (that reference to include the top line on page 4 only, which is descriptive of a deed) are excluded from this case entirely, wholly and completely? In other words, you are now filing the equivalent of a written motion of dismissal as to any and all of those parties unequivocally?"

And the counsel replied:

"No, sir. My answer is no, because the Court has too broadly stated my previous admission."

Additionally, and separately, defendant Marks filed a plea of res adjudicata, and, in support, filed at the hearing on the motions a certified photostatic copy of the entire record in the suit of H. E. Jordan et al. v. H. M. Marks et al., No. 8547 of the Sixth Judicial District Court, Parish of Tensas, State of Louisiana.

This was the situation of the case at the time of the hearing on and the submission of the motions to dismiss on March 10, 1944. Briefs were to be filed by all parties.

But on March 22, 1944, before all briefs were filed, plaintiffs filed an amended complaint. It is important to note the contents of this amended complaint so that determination might be made as to whether or not the position of plaintiffs in the stipulations has remained unchanged.

Article 1 of the amended complaint says:

"Plaintiffs reiterate and make part hereof, all of their original complaint, except as herein amended."

We must note that this language is all-encompassing; the whole of the original complaint is before us "except as herein amended."

Now let us note the amendments.

The first amendment is in the following language:

"Paragraph 9 of the original complaint is amended to read as follows: `9. Sale by the sheriff of Tensas Parish to Fred Skinner on Sept. 10, 1927, of all of the right, title and interest of Abe Jordan, Tom Jordan, and Perry Jordan in and to said property, by acts recorded in Deed Book Y pages 362 and 363.'"

The net result of this amendment is that the substance of Article 9 of the original complaint is retained; excluded is merely the argumentative part thereof: "said sale conveyed nothing because at that time said Abe Jordan, Tom Jordan and Perry Jordan owned no interest in said property."

But if we go to item (d) of the stipulations hereinabove quoted, you will note that orally in court at the hearing on the motions, all of paragraph 9 of plaintiffs' complaint was supposed to have been dismissed as of nonsuit.

We now note in full the next item on the...