New Gauley Coal Corp. v. Herndon
| Decision Date | 20 April 1926 |
| Docket Number | (No. 5201.) |
| Parties | NEW GAULEY COAL CORPORATION. v. HERNDON, Circuit Judge, et al. |
| Court | West Virginia Supreme Court |
NEW GAULEY COAL CORPORATION.
v.
HERNDON, Circuit Judge, et al.
(No. 5201.)
Supreme Court of Appeals of West Virginia.
April 20, 1926.
Original proceeding by the New Gauley Coal Corporation for prohibition, to be directed to Hon. I. C. Herndon, Judge of the Circuit Court of Monroe County, and others. Writ awarded.
Price, Smith & Spilman, of Charleston, and A. N. Breckenridge, of Summerville, for petitioner.
W. E. R. Byrne, of Charleston, for respondents.
LIVELY, J. By this rule in prohibition, the New Gauley Coal Corporation seeks to prohibit Hon. I. C. Herndon, judge of the circuit court of Monroe county, V. H. Odell, and others from further proceeding upon certain petitions filed by Odell and the others in the consolidated chancery causes of A. T. Caper-ton's Adm'r v. A. T. Caperton's Heirs et al., and Robert Stiles et al., Commissioners, v. John Williams' Adm'r et al., which causes, many years ago, were pending in the circuit court of said county; and from enforcing or attempting to enforce any decrees heretofore entered on said petitions, on the ground that the circuit court has no jurisdiction to entertain said petitions or to enter any decree based thereon.
The controversy is over lands lying in Nicholas county owned many years ago, by Allen T. Caperton, deceased, a part of about 90, 000 acres owned by him lying in the counties of Greenbrier, Webster, and Nicholas. In the year 1877, Caperton's administrators instituted a chancery suit in Monroe county against Caperton's heirs and others to settle the estate and sell the lands. The entire boundary of land containing 90, 705 acres was sold by special commissioners to Johnson N. Camden, which sales were confirmed by decree of March 19, 1885, followed by a deed to him dated October 17, 1889.
It appears that prior to the sale to Camden the special commissioners through Craig, their agent for the purpose, had contracted to sell several small parcels of land in Nicholas county to the respondents (other than Herndon) or their predecessors, and small down payments had been made, and possibly the purchasers had been put in possession. These sales had been reported to the court, but were never confirmed, and no further payments on the parcels were made. The Camden title, thus obtained, which includes the lands in controversy, is now owned by the New Gauley Coal Corporation. In argument it was asserted that Odell and the other respondent purchasers of the small tracts were in possession of the respective tracts.
The cause of Caperton's Adm'r v. Caperton's Heirs remained on the docket until 1903, when an order was entered reciting that the objects and purposes of the suit had been accomplished, and it was dismissed and stricken from the docket.
When the deed to Camden was made in 1889, it seems to have been understood that unreported sales had been made by Craig, agent, out of the large tract, and Camden was to have the benefit of the purchase price from any purchaser who might be entitled to a deed for the land purchased by him; and subsequently a commissioner was appointed to ascertain sales of land not reported, who made a report in 1890, by which it appears that one sale of 49 acres to Martin Perkins at a price $65.25 had been made on which $5 had been paid; and it is averred that this acreage is now owned by respondent Odell. There were about 21 other tracts and purchases reported. The decree on that report directed that these sales be confirmed, and upon payment of the purchase money therefor John W. Harris, special commissioner, should make deeds from the court, and that Camden should accept a certain sum and execute quitclaim deeds to the acreage of the sales reported as made by Craig. It appears that Camden did not accept the condition in that decree.
Hence it is that respondents claiming to have possession, and a right of title to their respective tracts, originating in the old suit of Caperton v. Caperton, confidently assert that they are entitled by filing their ex parte petitions in that cause, without making parties or having...
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