New Jersey Land & Lumber Co. v. Gardener Lacy Lumber Co.

• Citation: 190 F. 861
• Decision Date: 10 September 1911
• Docket Number: 31.
• Parties: NEW JERSEY LAND & LUMBER CO. v. GARDENER LACY LUMBER CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

190 F. 861

NEW JERSEY LAND & LUMBER CO. v. GARDENER LACY LUMBER CO. et al.

No. 31.

United States Circuit Court, E.D. North Carolina.

September 10, 1911

Meares & Ruark, for plaintiff.

Rountree & Carr and Bellamy & Bellamy, for defendants.

CONNOR District Judge.

This cause was before the Circuit Court of Appeals upon appeal from a decree made by the late Judge Purnell, dismissing the bill, for that the complainant had an ample and complete remedy at law. In the opinion (178 F. 772, 102 C.C.A. 220) a history of the cause up to, and including, that time, is given.

When the cause came on for hearing upon the mandate of thecourt reversing the decree, an order of reference was made to E.S Martin, Esq., special master, directing him to--

'find the facts by the record and evidence upon which arise the issues between the complainant and each of the defendants and report in due course. The special master is advised that the purpose, primarily, of this reference, is to enable the court to determine which, if any, of the controversies between the several defendants and the complainant are properly triable in a court of law or equity, and authority is conferred upon him in his discretion to investigate and report all necessary facts to this end. He will find the facts upon which arise the controversies either as to the whole or any part of the lands described in the bill of complaint. * * * He will further find whether or not claim of title is set up by the defendants in his or their answer and, if so, under what claim, etc. He is further directed to report which, if any, of the controversies between the parties, have been settled and should be eliminated ' etc.

The special master on March 18, 1911, made his report, setting out the names of the defendants, in respect to whom judgments pro confesso, or by way of compromise, had been entered. He made an analysis of the answers filed by the other defendants, setting forth the admissions made and defenses set up by them. He states his conclusions as follows:

'That in each and all of the controversies between complainant and the respective defendants set forth above the pleadings raise issues of fact. That all of said defendants plead adverse possession of the lands claimed by them under known and visible boundaries for periods sufficient to ripen their respective titles into perfect titles, and also the statutes of seven and twenty years under grants and conveyances subsequent to the grants complainant sets out in the bill, and prior to the act of 1893 (Laws 1893, c. 490), except as to one tract claimed by Henry Smith, under a grant dated in 1900 and two tracts claimed by G. S. Ellis, under grants dated, one December 29, 1893, and one in 1900, but whether said grants are void under the act of 1893, as being on lands previously granted, the facts do not show, and three tracts claimed by N. B. Roberts under deeds dated in 1894, 1896, 1899, but, as to these tracts, Roberts fails to state in his answer the date of the grants under which he claims, and therefore it cannot be determined whether or not the said deeds are void under the act of 1893. * * * That each of said defendants is entitled to have said issue tried by a jury in a court of law under the principles laid down in the opinion of the Circuit Court of Appeals for the Fourth Circuit in this suit.'

Complainant in due time filed the following exceptions to the report of the special master:

'(1) The report is only an attempt at an abstract of the record of the case, and that does not purport to be a complete abstract. The record speaks for itself.

'(2) The referee has not taken any proofs as to the merits of the case, and the complainants have had no opportunity to offer these in support of the bill of complaint.'

In addition to the prayer for judgment removing alleged clouds from its title, complainant prays that defendants, under oath, make discovery and answer a number of interrogatories; the first being:

'Whether or not the defendants jointly, or severally, claim any right, title, interest, or estate of any kind in and to the lands of the plaintiff, as hereinbefore described, and, if so, under what grants, deeds, claims, leases or other instruments or surveys they set up their claim thereto with a full and complete abstract of their alleged title.'

Defendants responding to the first interrogatory, under oath, set out the title under which they claim the several portions of the land described in the bill, of which they allege they are in possession. No exception is taken to the answer, nor is any replication filed.

For the reason given in the opinion, the Circuit Court of Appeals held that in the then condition of the record the bill should not have been dismissed, that decrees pro confesso and other decrees affecting the rights of complainant, which should be protected, had been made, etc. The appeal was argued upon the theory that the order appealed from was based upon the allegations of the bill. The Circuit Court of Appeals so treated the case, and said:

'If the averments of the bill, taken as confessed, confer jurisdiction, the court must examine the answers and exhibits, and take sufficient proof to inform itself whether it has jurisdiction to proceed to final decree.'

It further said:

'If it shall appear, upon taking the proofs, that any of the defendants had such grant (those declared void and not color of title under the act of 1893), and claim that they have, by an ouster, followed by seven years possession ripened into perfect title, would it not be clearly within the power of the court to declare such grants void for all purposes? No possible question for a jury could arise upon them. If, upon the contrary, it shall appear that any of the defendants are claiming and are in adverse possession under grants junior to complainant's, which are color of title, and have other muniments of title sufficient to give color, the question of ouster and adverse possession being purely matters of fact, the court would send the parties to a jury.'

The large number of defendants, coupled with the somewhat confused condition of the record, induced the court to send the case for the purposes set out in the order of reference to a master. It is apparent from the bill and answers as found by the master that, as to all of the defendants, save Ellis, Smith, and Roberts (as to a few tracts), the defendants claim under grants junior to those under which complainant claims (not affected by the act of 1893), and that their title is dependent upon sustaining their allegation of an ouster followed by seven years adverse possession, which, under the statute in force in North Carolina, for more than a century, not only tolls the entry of the true owner, but confers title upon the disseisor. Rev. 1905, Sec. 382. The answers of the defendants in respect to their title or claim-- its source and basis-- are clear, full, and explicit. With a few exceptions, they claim under separate and distinct grants, junior to complainant's, having no connection with each other. The alleged ousters are of different dates, and the evidence regarding their posession will necessarily be different in character, etc. The pleadings disclose a condition not unusual in this state. In the latter part of the eighteenth century (1795) the state made grants of large bodies of land-- largely swamp and of small value. The grantees held, as to large portions of these lands, but a constructive possession. As the population increased, the people moving into the sparsely settled sections made entries upon such small tracts within the boundaries of the original grants as were capable of cultivation and suitable for homes.

It was the policy of the state to issue grants to any persons who complied with the statutory requirements and paid the nominal price charged therefor, without inquiring whether such entries covered lands theretofore granted. Of course, if the entry covered land theretofore granted, the grantee took no title-- the land was not subject to entry and grant-- but if the junior grantee ousted the senior grantee, claiming under his grant as color of title, and followed his disseisin or ouster by adverse possession for seven years the entry of the senior grantee was tolled, and such ouster, followed by adverse possession, under color of title, for the statutory period, ripened into perfect title. The answers filed by defendants herein setting up grants junior to those under which complainant claims, followed by alleged adverse possession, present questions or issues of fact upon which under the Constitution and the uniform practice of the courts they are entitled to have a trial by jury. When the cause was before the Circuit Court of Appeals, complainant based the contention that it was entitle to invoke the jurisdiction of the court of equity upon a number of grounds, all of which were rejected, except the North Carolina statute, providing a remedy for quieting title, etc. Rev. Sec. 1589. The learned counsel for complainant insist that in the light of the pleadings and the report of the master the court of equity has the power, and that it is its duty, to hear and determine the controversies between complainant and the several defendants.

In view of this contention, it may be well to briefly review the decisions of the Supreme Court in cases wherein similar state statutes have been relied upon. In one or more of these cases language may be found which, unless examined with care and in the light of elementary principles, may be thought to lead to the conclusion upon which the argument is based in this case. Before referring particularly to the decisions, it may be well to recall a few fundamental truths which must be kept constantly in...