Knaggs v. Cleveland-Cliffs Iron Co.

• Decision Date: 06 February 1923
• Docket Number: 3683.
• Citation: 287 F. 314
• Parties: KNAGGS v. CLEVELAND-CLIFFS IRON CO.
• Court: U.S. Court of Appeals — Sixth Circuit

287 F. 314

KNAGGS v. CLEVELAND-CLIFFS IRON CO.

No. 3683.

United States Court of Appeals, Sixth Circuit.

February 6, 1923

Edwin J. Lynch, of Toledo, Ohio (Hackett & Lynch, of Toledo; Ohio on the brief), for appellant.

Frank M. Cobourn, of Toledo, Ohio (Wm. P. Belden, of Cleveland Ohio, and Tracy, Chapman & Welles, Thos. H. Tracy, and Frank M. Cobourn, all of Toledo, Ohio, on the brief), for appellee.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

The parties were aligned below as here. This appeal is from a decree in a suit in equity arising from this situation By the treaty of February 18, 1833 (7 Stat. 420, 421) between the United States and the band of Ottawa Indians residing on the reserve on and in the vicinity of the Maumee river, there was reserved to Au-to-kee, an Ottawa chief, a tract of about 320 acres at the river's mouth, including Presque Isle; the treaty stipulating that the land so reserved should not be alienated without the approval of the President of the United States. On June 3, 1835, Au-to-kee sold and conveyed to Robert A. Forsythe and George B. Knaggs, in fee simple, out of this 320-acre tract, a parcel of about 80 acres, now of great value, and lying on the east bank and at the mouth of the river, near the site of the city of Toledo. On November 18, 1835, there was recorded in the proper register's office a purported conveyance of this 80-acre tract by Knaggs and Forsythe, and their respective wives, to Daniel Chase in fee simple. The approval by the President of the United States of Au-to-kee's conveyance to Forsythe and Knaggs was not made until September 11, 1854, and no conveyance was made by the United States to Au-to-kee until August 20, 1895. This patent, which was in practical effect only a quitclaim deed, was superseded on November 28, 1898, by a patent to Au-to-kee in fee simple. On August 21, 1835, Daniel Chase, grantee in the deed from Knaggs and Forsythe of November 18, 1835, conveyed the entire parcel to John W. Clark, by warranty deed in fee simple. On May 31, 1845, the entire parcel in question, described as containing 60 acres of land (the original acreage had been reduced by the action of the waters of the bay), was conveyed by the proper authorities of the state of Ohio to James Myers, for forfeiture and reforfeiture of the land for nonpayment of taxes levied thereon by the state of Ohio; this deed being duly recorded. On July 10, 1906, defendant acquired the title conveyed by Chase to Clark; also the title obtained by Myers under the Ohio tax proceedings. On July 22, 1920, plaintiff, who is the sole heir at law of George B. Knaggs (who died in 1865), began this suit, asserting her ownership by virtue of such heirship of an undivided one-half interest in Presque Isle (denying that her father had ever conveyed his interest in the land), and asking partition thereof and accounting.

The defenses set up were: The due execution by Knaggs of the deed to Chase; the tax deed of 1845; adverse possession by defendant and its predecessors in title; and laches on plaintiff's part with respect to the assertion of her claim. By counterclaim quieting of the defendant's title was asked.

The District Court held that, whether or not Knaggs acknowledged the deed, it was otherwise duly executed by him, and so operated as a valid agreement to convey, entitling defendant to its specific enforcement; that the tax deed was a valid conveyance of the entire tract; that defendant and its predecessors in title had for more than 21 years before suit was begun been in adverse and exclusive possession of the entire tract, under claim of title thereto in fee simple; and that plaintiff was further barred by laches, through nonassertion of her claim for more than 48 years after attaining legal majority. Plaintiff's bill was accordingly dismissed, and defendant's title quieted.

As precedent to the merits: The suit was begun in the state court, and removed by defendant to the District Court below. Defendant's answer (with cross-bill) was filed September 20, 1920. On May 7, 1921, an amendment thereto was filed. On May 31 plaintiff entered motion to remand to the state court, for the reason that the amended answer showed that the original defendant had been succeeded by a new corporation, whose citizenship destroyed the diversity existing when the bill was filed. On the next day this motion was denied, as was also plaintiff's application to continue the trial; defendant having stipulated that plaintiff's absent witnesses would testify as claimed in the affidavit for continuance. An application for a jury was also denied. The motion to continue, as made, was within the trial court's discretion, no abuse of which appears. Plaintiff contends here that the cause was not at issue until May 7, 1921, and under equity rules 56 and 47 (198 F. xxxiv and xxxi, 115 C.C.A. xxxiv and xxxi) could not properly be put on the trial calendar until 110 days after it was so at issue. We think this contention without merit. In our opinion the cause was at issue, within the meaning of the rules, on September 22, 1920; the amendment to defendant's pleading not of its own force operating to extend the time for hearing for another 110 days. The questions arising under the motion to remand and the application for jury are not argued in plaintiff's brief. We content ourselves with saying that we have considered these questions, and see no substance in either of them.

Turning to the merits: We think the District Court rightly found that the purported deed from Knaggs and Forsythe to Chase was duly executed by Knaggs, unless in respect of acknowledgment. It was received in the office of the register of deeds for record 15 days after the date of the instrument. It purports to bear the signatures (under seal) of both Knaggs and his wife and of Forsythe and his wife, and to have been acknowledged on the date of the deed by Forsythe and by 'Almyra Forsythe and Matilda Knaggs, wives of said Robert A. Forsythe and George B. Knaggs'; the signature of each of the four purported grantors being witnessed by the justice of the peace who made the certificate of acknowledgment, the signatures of Forsythe and wife being attested by a further subscribing witness, and those of Knaggs and wife by still another witness. This situation, in connection with the language of the certificate of acknowledgment, suggests a possible clerical and unintentional omission therefrom of the name of George B. Knaggs as one of those acknowledging. However this may be, the recorded instrument purports to have been signed, sealed and delivered by Knaggs and wife in the presence of two subscribing witnesses. There is no competent evidence tending to impeach or question the actual execution and delivery of the deed by Knaggs. On the contrary, the probability of such execution and delivery is supported by contemporaneous history, including the reference to such deed (containing the date thereof) in the conveyance by Chase to Clark, made but 18 days later, which last-mentioned conveyance was recorded in the proper Michigan county on the very day on which the Knaggs and Forsythe deed to Chase was received for record, and the further fact that since November 11, 1854 (11 years before Knaggs' death), the instrument was recorded in Lucas county, Ohio (of which county, through the change of state lines, the land had meanwhile become a part), and the acquiescence by Knaggs during the remainder of his life in the apparent effectiveness of the conveyance to Chase. ^[1] The public record of the Knaggs and Forsythe deed was made 85 years before this suit was begun. Presumably every one acquainted with the actual facts respecting its execution and acknowledgment has died. The deed, however, purports, not only to have been executed and delivered by both Knaggs and his wife, and not only to have been executed and delivered by Forsythe and wife, but to have been duly acknowledged by the latter two. It was thus entitled to record. Independently of the common-law rules applicable to ancient records, by the express terms of the Ohio statute (section 8558), which we quote in the margin, ^[2] the record of the deed, although defective in respect of acknowledgment by one of the grantors, was prima facie evidence that 'such instrument was executed and existed...