McClaskey v. Barr

• Decision Date: 26 April 1890
• Parties: McCLASKEY et al. v. BARR et al.
• Court: U.S. District Court — Southern District of Ohio

42 F. 609

McCLASKEY et al. v. BARR et al.

United States Circuit Court, S.D. Ohio, Western Division.

April 26, 1890

This is a bill for the partition of 161.4 acres of land situate on Price hill, within the corporate limits of the city of Cincinnati. There are between two and three hundred defendants, but, the contested questions being common to all they are to be heard upon the answers of William Henry Elder archbishop of Cincinnati and trustee of Mr. St. Marys' Seminary, and of John Keeshan. The cause is now before the court upon the defendants' motion to suspend further proceedings until the complainants shall establish their title at law. The bill and its amendments contain the following averments of fact:

On the . . . day of May, 1816, William Barr, Sr., died, testate, and seised of the real estate above referred to, which he devised to his executors for the use of his son John M. Barr during his natural life, and after his death for the use of his wife, Maria Barr, (in the event of her survival,) during her natural life, with remainder in fee to his child or children and their heirs forever. John M. Barr died in August, 1820 leaving his wife, Maria, and one child, Mary Jane Barr surviving him. In November, 1821, the daughter, Mary Jane Barr, died, leaving her mother, Maria Barr, (who afterwards intermarried with John Bigelow,) surviving her. Subject to the life-estate of Maria Bigelow, said real estate descended, upon the death of Mary Jane Barr, by virtue of the laws of descent then in force in the state of Ohio, to the brothers and sisters of William Barr, Sr., then living, or the lineal descendants of those then deceased, and their descendants and heirs. The complainants are the descendants and heirs at law of Mary Grafton, deceased, who was a sister of William Barr, Sr. On the 26th day of July, 1838, Maria Bigelow conveyed by quitclaim deed the entire tract of land described in the bill, and all her right, title, and interest therein, in law and in equity, to Ephriam Morgan and Lot Pugh, their heirs and assigns, forever, with full covenants of seisin against incumbrances, and of special warranty. On the 13th of September, 1839, Lot Pugh quitclaimed his interest in said tract to his co-tenant, Ephriam Morgan, who on or about the 20th of September, 1839, entered into possession by virtue of said deeds, holding no other title whatever to said premises. Between the 1st of October, 1838, and the 16th of December, 1839, through the agency of his son-in-law Woods, Morgan procured from children of John Barr, one of the brothers of William Barr, deceased, to whom a portion of said tract descended, deeds for their interest therein, without specifying what that interest was. The bill sets out the different deeds, some 19 in number, all made to Woods, Morgan's agent, and his deed of the same on the 16th of December, 1839, to Morgan.

On the 10th of December, 1839, Morgan conveyed 74 acres of said tract to one Patrick Consadine. This was six days before he acquired title from the children of John Barr. By sundry deeds, between the 18th of May, 1843, and the 5th of May, 1858, he conveyed to Adam Moore and others about 69 acres of said tract. The residue, being about 21 acres, Morgan held until his death, which occurred some time in 1873. On the 29th day of June, 1858, before the death of the life-tenant, Maria Bigelow, the said Morgan and Woods, and Morgan's grantees, who were at that time the tenants in possession of all of said tract of land, filed their petition in the court of common pleas of Hamilton county, being the county in which said land is situate, against John b. Ennis and others, setting forth, among other things, that on the 26th day of July, 1838, Maria Bigelow conveyed to Ephriam Morgan and Lot Pugh all her right, title, and interest, being a life-estate, in said 161.4 acres; and that it was necessary to take her deposition to establish and prove the names of the brothers and sisters of William Barr, deceased, and their heirs and legal representatives. Copy of the proceedings in said cause, together with the deposition of Maria Bigelow, which was taken therein, and filed with the papers in said proceedings, is attached to an amendment to the bill, and made part thereof. The bill further charges that, after said Woods had conveyed to said Morgan the titles so acquired by him, he purchased the interests of sundry other heirs of said brothers and sisters of William Barr, deceased, whose names are fully set forth in said bill. It is further averred that Woods died testate, seised of the interest so acquired, and that on the 15th day of September, 1857, his widow conveyed the same by special warranty deed to said Morgan.

The bill further alleges that said Morgan, and those claiming under him, continued in possession of said tract of land after the death of the life-tenant, as tenants in common with the complainants, and with the heirs of the brothers and sisters of William Barr, Sr. The bill further alleges that, shortly after the death of Maria Bigelow, life-tenant, Margaret R. Poor, claiming as heir of Mary Jane Barr, the tract of land aforesaid, filed in the circuit court of the United States for the southern district of Ohio her declaration in ejectment against Patrick Considine, Ephriam Morgan, and others in possession, including Archbishop John B. Purcell, (who was made a party subsequent to the filing of the declaration, and to whose office and title the defendant Archbishop Elder succeeded,) seeking to recover possession of the whole of said tract of land. Judgment was rendered in favor of the defendants in said case by the circuit court, and affirmed by the supreme court, of the United States. The complainants further allege that, when said case was taken on error to the supreme court, a bill of exceptions was filed, embodying an agreed statement of facts wherein appears, among other things, a full statement of the facts relative to the filing of the petition aforesaid, on the 29th of June, 1858, in the court of common pleas of Hamilton county, by said Morgan and others, and a copy of the proceedings and order of the court therein; also the names of the brothers and sisters and some of their children, the heirs of said William Barr, Sr. The bill sets forth other particulars relating to said bill of exceptions, but it is not necessary to refer to them more particularly. On the 4th day of December, 1868, (which was after the decision by the supreme court of the United States of the case of Poor v. Considine, 6 Wall. 458,) Morgan, Consadine, Archbishop Purcell, and others, being all the parties in possession, entered into a written agreement, authorizing and empowering T. D. Lincoln and Fayette Smith, as trustees, to buy in for their use the outstanding title of the several heirs of William Barr, John T. Barr, Margaret Barr Keys, who the complainants allege were children of Samuel Barr, who was a brother of William Barr, Sr. Complainants further allege that said trustees purchased and received deeds for titles of said parties in December, 1868, January and February, 1869, and also from sundry other persons, and afterwards conveyed the interests so acquired to the several parties to the siad written agreement. The complainants further say that on the 1st of April, 1871, Samuel Barr and wife conveyed by deed to said Lincoln in trust, for the benefit of sundry parties, all their interest in said lands, in which deed it was recited, among other things, that Mary Jane Barr, the daughter of John M. Barr, was the owner in fee of said lands, subject to the life-estate of her mother, the said Maria Bigelow, and that on the death of said Mary Jane Barr an undivided fifth part of said property passed by descent to Andrew Barr, and upon his death to his children; and it was further recited in said deed that the interest so conveyed was the interest of said parties in said tract of land. The bill further avers that said Lincoln afterwards purchased the interests of several other parties, heirs in said lands, for the benefit of the parties to said written agreement, and conveyed to them all of the interests so acquired.

The separate answers of Archbishop Elder and of John Keeshan deny the heirship of the complainants, and set up, among other things, that Ephriam Morgan entered upon the sole, open notorious, and exclusive possession of said premises on the 13th day of September, 1839, claiming the sole title and ownership thereof in fee-simple, adversely to the complainants and each of them, and all the world. The answer of Archbishop Elder then sets up the conveyance aforesaid, in fee, by said Morgan to Patrick Considine, of 71 acres of said tract, and that Considine made sundry improvements of a permanent character upon the same, and collected and received all the issues, rents, and profits thereof, and appropriated them to his own exclusive use; that in May, 1847, by deed in fee-simple, he conveyed five acres of said tract to Archbishop Purcell, and said deed was on the 5th day of April, 1848, recorded in the public records of Hamilton county. It further avers that said Purcell immediately entered into the open, notorious, and exclusive possession of said premises, claiming the entire title thereto, adversely to the complainants and all the world, and shortly thereafter commenced the erection thereon of a stone seminary and theological college building, which was completed at a cost of about $30,000; that he proceeded to make other improvements for the purposes of said seminary, the cost thereof, up to 1871, being about $50,000; that in May, 1858, said Morgan conveyed, by deed in fee-simple, to said Purcell, about 10 acres more of said tract; that subsequently said Purcell became the grantee, in fee-simple, of all the...