Meyer v. Kuhn

• Decision Date: 05 February 1895
• Docket Number: 86.
• Citation: 65 F. 705
• Parties: MEYER et al. v. KUHN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

65 F. 705

MEYER et al. v. KUHN et al.

No. 86.

United States Court of Appeals, Fourth Circuit.

February 5, 1895

Appellants describing themselves as 'Elizabeth Meyer, widow of Henry Meyer, deceased, and executrix of the last will and testament of Henry Meyer, deceased, and Hannah E. Forbes, Emily A King, and Levina R. Conrow, children, heirs, and distributees of the estate of Henry Meyer, deceased, all of the city of New York, and residents and citizens of the state of New York,' filed their bill against 'James I. Kuhn and Samuel S. Vinson, citizens and residents of the state of West Virginia, and John N. Hauser and Charles R. Henderson citizens and residents of the state of New Jersey,' in the circuit court of the United States for the district of West Virginia, March 11, 1892, and a substituted bill November 16, 1892. The bill charged that Henry Meyer, of New York, the husband of Elizabeth Meyer, and father of the remaining plaintiffs, owned an undivided one-half interest in and to a number of tracts of land in Wayne county, W. Va.; that Meyer died in June, 1875, testate, and his will was duly proved, probated, and filed, whereby he devised and bequeathed all his real estate and personal property to his wife, the said Elizabeth Meyer, for life and during widowhood, but, in case of remarriage, then one-fourth thereof for life, with remainder to his three daughters, Hannah, Emily, and Levina, and appointed his widow as executrix, with express power to sell or dispose of the real estate, or any portion thereof, in her discretion, at such prices and upon such terms as she might deem best. The bill further alleged that, upon the death of Meyer, plaintiffs became seised and possessed of the lands in question, and paid all the taxes thereon, up to and including the year 1880. That in 1882 plaintiffs owned an undivided one-half interest; defendant Hauser, an undivided one-eighth; defendant Henderson, an undivided one-fourth; John Phillips' heirs, an undivided one-eighth. That for the years 1881, 1882, 1883, and 1884 an undivided five-eighths interest in the tracts was taxed as belonging to the estate of Meyer. That the taxes were not paid, and the entire tracts were returned delinquent, regularly proceeded against, and sold December 14, 1885, and bought in by the state. That afterwards the said tracts were reported by the state auditor to the commissioner of school lands of Wayne county, in which the tracts were situated, and the commissioner began proceedings against said lands to procure their sale for the benefit of the school fund of the state, as provided by law. That thereupon plaintiffs John Phillips' heirs, Hauser, and Henderson filed their petition, setting up their title to the lands so being proceeded against, and asked to be allowed to redeem the same, and such proceedings were had as resulted in petitioners paying the taxes, interest, and damages due on the land so forfeited and sold, up to and including the year 1888, and upon the payment so made an order was entered by the circuit court of Wayne county on February 14, 1889, allowing redemption, and the clerk was directed to certify a copy of the order to the clerk of the county for record, so that the said lands might be entered upon the records of the county for taxation, which was done, and the order duly recorded. Plaintiffs further averred that they and their joint tenants were thereby fully reinstated in all their right, title, and interest in the said lands; that thereafter the heirs of Phillips sold and conveyed their interest to Samuel S. Vinson, and that plaintiffs, with said Vinson, Henderson, and Hauser, were the actual, legal, and equitable owners of the said tracts of land. The bill then alleged that, during the forfeiture for the nonpayment of taxes for the years 1883 and 1884, the five-eights interest therein was erroneously placed on the land books of Wayne county, and charged with taxes for 1885 in the name of Henry Meyer's estate, and erroneously returned delinquent for the payment of taxes for 1885; and afterwards, on November 5, 1887, said interest was sold at delinquent sale, and purchased by defendant Kuhn at $43.09, and by deed of December 2, 1889, conveyed to him. That thereafter defendant Vinson, unknown to plaintiffs, brought a suit for partition of the tracts of land among the various owners, 'making the said Kuhn and these plaintiffs parties to the said suit, without seeking to settle who was entitled to the undivided five-eighths interest, but stating that he was the owner of one-eighth, Charles R. Henderson of one-fourth, your orators of one-half, and J. N. Hauser of one-eighth. ' That such proceedings were had in the circuit court of Wayne county in that suit as resulted in a decree of partition of the said land, one-eighth to Vinson, one-eighth to Hauser, one-fourth to Henderson, and one-half to the Meyers estate or Kuhn, but without decreeing that Kuhn had title to the one-half belonging to plaintiffs. That after the decree ordering a partition was entered, plaintiff in that suit and Kuhn had the commissioners allot and lay off the land in parcels, and afterwards, without any amendment, of the bill or proceedings, had another decree entered decreeing that Kuhn owned one-half, Hauser one-eighth, Henderson one-fourth, and Vinson one-eighth, a copy of the record of said partition suit being filed as an exhibit, and prayed to be taken as a part of the bill. That afterwards Kuhn, by deed dated June 27, 1891, quitclaimed to Vinson the surface interest in a parcel of land, reserving the miners, 'of none of said partition, but that the said James I. Kuhn is now endeavoring to assert his said title to the one-half interest of these, your orators, in said land, upon which it was charged that the tax sale and conveyance to Kuhn were invalid; stated that their one-half interest was worth at least $5,000; and averred that, at the time 'the said Kuhn bought the pretended title to said land, he knew all the facts connected with the matter'; that at the time he obtained the deed for said interest in the land, so purchased by him at the delinquent tax sale as aforesaid, he knew that the owners 'had paid all the taxes due on said land, and redeemed the same, and that he took the same with full knowledge that the land had been redeemed, and had actual personal knowledge of the fact that said order of February 14, 1889, was made and entered by the circuit court of Wayne county, and that the taxes were all paid by the true owners, who had a title thereto superior to his (said J. I. Kuhn's) claim, and to all other claims, and that he was a purchaser by his own wrong, with full notice and knowledge.' Plaintiffs tendered to Kuhn the full amount of the purchase money he paid for the land, with interest and costs, though denying that Kuhn had any right under the purchase, and prayed that the tax deed of October 2, 1889, and the quitclaim deed of Kuhn to Vinson of the surface of part of their land, be set aside as clouds, and be declared null and void; for an injunction; and that plaintiffs be quieted in the possession and title of the one-half interest in said tract; and for general relief.

In the record of the alleged partition suit, annexed to the bill appeared a summons dated January 30, 1891, against 'John N. Hauser, Chas. R. Henderson, Sarah E. Meyers, widow, in her own right, and as executrix of the will of Henry Meyers, deceased, and the unknown heirs of Henry Meyers, deceased, and J. I. Kuhn. ' This summons bore the indorsement of acceptance of service by J. I. Kuhn, February 23, 1891, but no return. The bill of complaint of Vinson purported to have been filed against the parties named in the summons, and alleged that Vinson was the owner of an undivided one-eighth, Hauser of one-eighth, Henderson of one-fourth, and Meyers in his lifetime of one-half interest in the tracts of land, and stated 'that he has since died, leaving as his widow Sarah E. Meyers, who is the executrix of his will, and that the names of the heirs of the said Henry Meyers, deceased, are to the plaintiff unknown; that the plaintiff has used due diligence to ascertain their names, but has been unable to do so'; and that J. I. Kuhn claims five-eighths interest in said land by reason of a tax deed. The bill averred that the property was capable of being partitioned, and that partition would be advantageous to the parties in interest, and prayed for the appointment of commissioners, and for general relief. An affidavit of order of publication accompanied the bill, sworn to January 30, 1891, stating, upon information and belief, 'that John N. Hauser, Charles R. Henderson, Sarah E. Meyers, widow of Henry Meyers, deceased, and the unknown heirs of Henry Meyers, deceased, are nonresidents of the state of West Virginia. ' The record showed an order at rules on the first Monday of February, 1891, as follows: 'February Rules, 1891. Sum. Ex. on R.D. Bill filed and O.P. awarded. Decree nisi. ' The order of publication was as follows: 'The object of this suit is to partition fourteen tracts of land situate on Kiah's creek, in Wayne county, West Virginia, and known as the 'Denner Lands.' This day came the plaintiff by his attorneys, and upon his motion, and it appearing from an affidavit filed with the paper in this suit that John N. Hauser, Charles R. Henderson, Sarah E. Meyers, and the unknown heirs of Henry Meyers, deceased, are nonresident of the state of West Virginia, it is therefore ordered that they do appear here within four weeks from the first publication of this notice, and do what is necessary to protect their interest herein. ' To this notice, and do what is necessary to protect their interest herein. ' To this was attached the certificate of the newspaper publisher, under date May 15,...