Parker's Adm'r v. Petitioner
| Decision Date | 28 March 1894 |
| Citation | 39 W.Va. 184 |
| Parties | Parker's Adm'r v. Clarkson et al. |
| Court | West Virginia Supreme Court |
Where a cause is removed from the state court to the United States District Court, and after years of litigation in said United States Court an appeal is taken to the Supreme Court of the United States, and it is there held, that the cause was improperly removed and that the United States court had no jurisdiction of the cause, no valid proceeding could have been taken in said state court during the pendency of said cause in the United States court.
Where such removal is ordered upon the petition of the defendant, and the cause remains in the United States court for seventeen years, during which time active litigation is carried on between the parties, and then the cause is remanded to the state court for want of jurisdiction, the defendant can not under the plea of laches take advantage of the delay thus occasioned to dismiss the plaintiff's cause.
In a suit to enforce a judgment-lien against the real estate of the judgment-debtor a pendente lite purchaser from such debtor does not hold adversely to the party seeking to enforce such a lien, and such purchaser will not be protected by the statute of limitations, by reason of open, exclusive, and notorious possession for the prescribed period, paying taxes, etc., as such possession will not be considered adverse to the plaintiff.
I). C. Gallaher, Flouknoy & Price, and Brown, Jackson & Knight for appellant cited 6 Otto 704; Code, c. 139, s. 11; Id. c. 136, s. 4; 37 W. Va. 481; 25 W. Va. 751; 34 W. Va. 603; 2 Dam. Ch'y Pr. 57; 6 Gratt. 107; 1 Rev. Code, c. 128, s. 38; 28 W. Va. 601, 607; 27 W. Va. 511, 527; 28 W. Va. 322; 12 Pet. 164; 20 How. 541; 52 Miss. 457; 108 U. S. 292; 7 Rob. Pr. (App.) 1087; Dest. Rem. Cas. § 110 and n.; Dill. Rem. Cans. § 87.
T. B. Swann for appellees cited 17 How. 144; Sto. Eq. PI. § 354; 5 Leigh 172-178; 17 Gratt. 96; 95 U. S. 200; 1 II. 161; 99 U. 8. 201; 23 Gratt. 223; 7 Gratt. 112; 7 Leigh 487; 106 U. S. 391; 26 W. Ya. 710; 25 W. Va. 108; 4 Leigh 341; 27 W. Va. 520; Id. 250; Sto. Eq. PI. 364-390; 12 Pet, 164; 37 W. Va. 222-225; 22 W. Va. 180; 24 W. Va. 239, 244; 37 W. Va. 210-225; 27 W. Va. 225.
J. S. Swann for appellees cited 1 Johns. Ch'y 405; 1 Paige 35; 14 Pick. 374; 118 Mass. 360; 226 Gratt. 706; 18 Ver. 384; 56 N II. 105; Code, c. 129, s. 3; 3 Bland Ch'y Mod. Rep. 351, 600; 1 Edw. Ch'y (N. Y.) 46; Sto. PI. § 364, 378, 379, 387; 2 Paige 360; 23 Gratt. 222; 21 W. Va. 469; 9 Pet. 416; 2 Ves. Jr. 11; 17 Wall. 78; 94 U. S. 806; 2 Seh. & Lef. 607; Sto. Eq. PI. § 410; 10 Wheat. 146; 1 How. 189, 161; 99 IT. S. 201; 2 Watts & S. 255; Sto. Eq. Jur. § 1520; 42 Am. Dec. 753; Bar. Ch'y Pr. 90, 118; 1 Bar. Ch'y PI. 110; 5 Leigh 164; 22 Ann Rep. 320; 1 C. E. Green 251; 14 Am. Dec. 774, 777, 778 and notes; 6 Pet. 61.
G. S. Coucn for appellees, Youngs, cited 31 W. Va. 540; 24 W. Va. 185; Dam. Ch'y Pr. 1701; 21 W. Va. 470; 28 28 W. Va. 604; 2 Pom. Eq. § 634, 640; 14 Am. Dec. 777 and n.; Free. Judgm'ts 202; 1 Mete. (K'y) 146; 5 Leigh. 627; 2 Rand. 93.
In the month of December, 1865, Milton Parker filed his bill in the Circuit Court of Kanawha county against John L Clarkson and others for the purpose of subjecting the real estate, to which said Clarkson was entitled in said county, to the satisfaction of four judgments, which said Parker had obtained against said Clarkson one in 1851, another in 1852, and two of them in the spring of 1857 which judgments had been docketed and kept in life by executions issued in proper time. A general decree of reference was made in the cause on the 10th day of April, 1866, requiring a commissioner to report what real estate said John Clarkson owned at the time of the plaintiff's earliest judgment, and what disposition was made of it after that time, and what liens there were upon said real estate with their priorities. A report was made by A. T. Laidley in pursuance of this decree on the 18th day of Feb- ruary, 1870, which report was recommitted to him on the 21st day of June, 1870, which second report was returned on the 29th day of November, 1870. The cause was again referred to Commissioner Laidley at the April term, 1871, with certain instructions; but the decree was not complied with, for the reason that on the petition of C. G. Hussey & Co., and John Johns, assignees in bankruptcy of said Clarkson, filed on the 8th day of July, 1871, an order was entered in said Circuit Court removing said cause to the District Court of the United States for the district of West Virginia. On the 2d day of April, 1872, it appearing to the court that no bond had been filed by petitioners at the time said first order of removal was entered, proper bond having been filed, it was again ordered that said cause be removed to said United States District Court, according to the prayer of said petitioners. The cause remained in the United States District Court for about seventeen years, during which time the questions raised by the pleadings were actively litigated by the parties in interest.
The questions as to the liens against the real estate, in which the defendant Clarkson was interested, their validity and priority, were referred to and reported upon by successive commissioners. The liens were ascertained against the real estate owned by John N. Clarkson, and not aliened, known as the "Early Farm," and said farm was sold under a decree rendered in said Udited States District Court, and the proceeds paid out partly in costs and attorney's fees, and partly upon the liens ascertained against the same in said United States Court. The liens resting upon a lot in the city of Charleston containing one and three fourths acres, which was conveyed to John N. Clarkson by Van B. Donnally and wife, were also ascertained, and said lot wras also decreed to be sold to pay said liens.
An appeal was taken to the Supreme Court of the United States from said last-mentioned decree by the heirs of John D. Young and by Thomas B. Swann and John N. Clarkson. A decree was entered in said Supreme Court reviving the cause in the name of L. II. Ewart, administrator de bonis non of Milton Parker, as complainant; and, that court being of opinion that this cause was not prop- erly removed from the Circuit Court of Kanawha county, the said decree remitted the cause to the said United States District Court, with directions to remand it to the state court (10 Sup. Ct. 75) and it was so remanded on the 22d day of February, 1890; and on the 10th day of April, 1890, a decree was entered in the Circuit court of Kanawha county ordering said cause to be redocketed therein, and proceeded with under the laws governing such cases; and the same was duly revived and ordered to proceed in the name of appellant, L. II. Ewart, administrator de bonis non of Milton Parker, deceased.
On the 23rd day of April, 1892, the appellant filed an amended and supplemental bill, setting forth the proceedings had in said cause in the Circuit Court of Kanawha county, and also the proceedings had in the United States District Court, suggesting the death of John D. Young? and praying that his heirs at law might be made parties defendant, and that the liens of the judgment of the said Milton Parker might be enforced against the one and three fourths acres of laud, and that the same might lie sold to pay the said judgments.
The connection of said John D. Young with the case originated, as appears from the allegations of the original bill filed in tlie Circuit Court of Kanawha county, as follows: On the 5th day of November, 1857, John X. Clarkson conveyed said one and three fourths acre of land? which had been conveyed to him by Van B. Donnally and wife, to Thomas B. Swann, and said Swann afterwards conveyed the same property to Ezekiel Mayes, and Ezekiel Mayes afterwards conveyed the same property to John I). Young.
Upon the filing of said amended, bill the cause was remanded to rules, and process awarded and served upon the defendants. On the 28th day of December, 1892, the death of M. W. Young was suggested, and the cause duly revived against his widow and heirs at law. On the 28th of April, 1893, J. M. Laidley and Francis Thompson's administrator tiled their answers, and the demurrers of the defendants to said amended bill were set down for argument, and on the 29th day of June, 1893, the widow and heirs of M. "W. Young and others, heirs at law of John D. Young, tiled a special plea to said amended bill, to which complainant demurred, which demurrer was overruled; and the court also sustained the demurrer of the heirs of John D. Young to said amended bill, but granted the plaintiff leave to amend the same at bar, which was accordingly done. A second demurrer was interposed by the said defendants, and was sustained by the court, and thereupon the said second amended bill and amended bill were dismissed, withcosts, and from this decree this appeal was taken.
This special plea filed by the widow and heirs of M. W. Young and others, the demurrer to which was overruled as above stated, claimed, that the complainant ought not to have and maintain his bill of revivor filed against them, because they say that they, nor either of them, do not claim or hold said one and three fourths acres of land set out in the original bill filed in this cause, lying on Virginia street, Charleston, as heirs at law of J. I). Young, but as alienees, holding same by deed of record prior to the time of filing said bill of revivor, which deeds are filed as part of said plea; that under the above state of facts said defendants are advised and charge that the plaintiff can not maintain against them or either of them as heirs at law of John D. Young his bill of revivor, but must file an original bill or supplemental bill...
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