North Carolina Min. Co. v. Westfeldt

• Decision Date: 05 February 1907
• Citation: 151 F. 290
• Parties: NORTH CAROLINA MINING CO. v. WESTFELDT et al.
• Court: U.S. Court of Appeals — Fourth Circuit

151 F. 290

NORTH CAROLINA MINING CO. v. WESTFELDT et al.

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

February 5, 1907

[Copyrighted Material Omitted]

Jas. H Merriman, Moore & Rollins, and Jos. J. Hooker, for complainant.

Julius C. Martin, A. C. Avery, and F. A. Sondley, for defendants.

PRITCHARD Circuit Judge.

This is a suit in equity, brought for the purpose of determining adverse claims to real estate under chapter 6, p. 37, of the Public Laws of 1893 of North Carolina, which provides 'that an action may be brought by any person against another who claims an estate or interest in real property adverse to him for the purpose of determining such adverse claims,' and for removing a cloud from and quieting the title to said estate. The bill was filed on the 27th day of July, 1905; the complainant alleging that it is the owner of the lands described in the bill, setting forth particularly the chain of title, and that the defendants claim an adverse estate or interest in the premises, which said claim so affects the complainant's title as to render a sale or other disposition of the property impossible, and disturbs the complainant in the right of possession. It prays that said claims of the defendants, and each of them, be adjudged to be invalid, and that none of the defendants have any estate or interest in the said property, or any part thereof and for a perpetual injunction against the defendants, and for general relief.

The defendants G. R. Westfeldt, P. M. Westfeldt, Marie Christine Price, Jennie Westfeldt, L. P. Tarlton, Jennie Fleetwood Westfeldt, G. S. Tennent and wife, and Marie Louise Tenant filed a joint and several answer to the bill, in which they set up the following defenses: (1) They denied that the complainant was the owner of the property, and denied that the property was located where the complainant claimed it to be, and denied that the ridge on which the complainant claimed its land to be located was known as and called 'Little Fork Ridge,' and averred that Little Fork ridge was at a different place, and that the complainant was endeavoring to locate its lands as claimed by it for the purpose of covering certain lands belonging to the defendants, because such lands were believed to contain a certain copper deposit and to be of much value, and that the defendants are seised of the land as belonging to them in fee simple. And the answer then sets up particularly the defendants' chain of title. (2) The defendants further set up in their answer that about the year 1899 one Walter S. Adams went into possession of that portion of the land covered by one of the grants under which the defendants claim, and began to dig and mine for copper and other ore, and continued in possession until March 20, 1901, when the defendants G. R. Westfeldt and P. M. westfeldt, as individuals and as executors of the will of Jane Westfeldt, and the other defendants and Chas. Fleetwood Westfeldt, commenced an action in the superior court of Swain county, N.C., for the purpose of recovering from Adams the possession of the land. The defendants then set up the pendency of the action in the state court as a bar to this suit, and also insist that by reason of the pendency of that action this court has no jurisdiction. The defendants introduced in evidence in the case, when the matter of jurisdiction was argued before the court, a complete transcript of the record of the cause in the state court. (3) The defendants also set up that the defendants Henry Grinnell and wife and Dodette Altonie Grinnell were citizens of the District of Columbia, and were necessary parties to this suit, and therefore this court had no jurisdiction of this cause. (4) The defendants also set up in their answer that this court has no jurisdiction sitting in chancery as a court of equity for the reason that the remedy of the plaintiff is full, complete, and adequate at law. (5) That the bill of complaint does not state facts sufficient to constitute a cause of action, for that it nowhere appears therein, and is not the fact, that the plaintiff has established by any action at law any right or title to said land, or the possession thereof. The defendants also claim the right of trial by jury. The defendants also say that the bill of complaint does not state any facts which show that the complainant is entitled to any equitable relief whatever, or that the matters involved in the suit are cognizable in a court of equity. (6) The pendency of the suit in the state court is again set up in the answer, and claimed to be a reason why this court should not grant an injunction against further proceedings by the defendants in the state court.

The defendants Henry Grinnell and wife filed a separate answer, which contained substantially the same that was in the answer of the other defendants, and prayed that the court dismiss the bill as to them.

After the complainant had filed a general replication, the defendants requested the court for leave to be heard upon the question of jurisdiction of the court before an order should be made appointing an examiner to take evidence. The court granted the request, and heard argument upon the motion of the defendants to dismiss for want of jurisdiction, but denied the motion, except as to Grinnell and wife, as to whom, and before the final hearing in the case, the bill was dismissed because of a want of jurisdiction of the court over their persons.

In the progress of the final hearing it appeared that the complainant at the commencement of the suit had only an equitable title to the property in dispute; the conveyance under which it claimed being without seals, but in all other respects sufficient. Before the hearing was concluded the said conveyance was amended, re-probated, and re-registered, so as to make it a perfect conveyance of the legal title to the complainant, and was again offered in evidence and received by the court, and, in addition, the complainant obtained from its vendors another deed, which it had probated and registered, and which it offered in evidence, conveying the lands to the complainant.

The defendants filed a formal written motion to dismiss the suit on the ground that the complainant at the commencement of the suit did not have the legal title to the land, which motion the court overruled.

The evidence was taken before examiners, and at the final hearing there were many exceptions to the same on behalf of complainant and defendants, some of which were abandoned, and those not abandoned were passed upon by the court, as will appear in the record.

The demurrer in the defendants' answer avers that the bill does not state facts sufficient to constitute a cause of action. The court has considered the same, and is of the opinion that the allegations contained in the bill are a substantial compliance with Acts 1893, p. 37, c. 6 (Revisal 1905, Sec. 1589); and in addition thereto the bill shows that the complainant is in the actual possession of the premises in dispute. Therefore the demurrer is overruled. Jones v. Ballon, 130 N.C. 527, 52 S.E. 254; Reynolds v. Crawfordsville Bank, 112 U.S. 411, 5 Sup.Ct. 213, 28 L.Ed. 733; More v. Steinback, 127 U.S. 70, 8 Sup.Ct. 1067, 32 L.Ed. 51; Ely v. New Mexico R. Co., 129 U.S. 291, 9 Sup.Ct. 293, 32 L.Ed. 688.

The defendants set up the pendency of an action in the state court as a bar to this suit, and also insisted that by reason of the pendency of such action this court had no jurisdiction. In considering this question it is necessary to determine the character of the action pending in the state court. The parties who are defendants in the present suit instituted an action in the state court to recover the two tracts of land in controversy in this proceeding. There is nothing in the proceedings in that court to show that the court has taken possession of the res, or that it has, by proper process, assumed dominion over any specific property, the title of which is involved in this controversy. In the case of Slaughter v. Mallet Land & Cattle Co. (Circuit Court of Appeals, 5th Circuit) 141 F. 282, 72 C.C.A. 430, this question was considered by the court. The third headnote in that case is as follows:

'The pendency in a state court of an action of trespass to try title to land and to remove cloud from title does not place the land in the exclusive possession of that court, in such sense that it is a ground for abatement of a subsequent suit in a federal court between the same parties to quiet title to the same land.' The defendants' suit in the state court against complainant and its vendor was an action under the Code of North Carolina for the recovery of real property, and answered to the old action of ejectment, and was an action at law purely. The defendants in that suit or action set up a counterclaim, asking to have their title quieted under the act of 1893; but no action was ever taken upon this counterclaim. The plaintiffs in that action (defendants in this suit) filed no reply to the counterclaim, but at the close of this hearing what is styled a 'reply' was offered in evidence. There was nothing to show that the state court had granted leave to file a reply, or that any reply had ever been offered in the state court. There was nothing to show that the land had ever been taken into the custody of the state court in any manner. This paper was ruled out as evidence.

In the case of Barber Asphalt Pavement Co. v. Morris, 132 F. 947, 66 C.C.A. 55, 67 L.R.A. 761, the court, in discussing this phase of the question said:

'The general rule upon this subject has been so clearly announced and so often affirmed by the Supreme Court and by this court that it is no longer open to debate or consideration. It is that the pendency in a state court of

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