Ritchie v. Sayers

• Decision Date: 24 February 1900
• Parties: RITCHIE et al. v. SAYERS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

100 F. 520

RITCHIE et al. v. SAYERS et al.

United States Circuit Court, D. West Virginia.

February 24, 1900

Syllabus by the Court

An attachment proceeding in a state court under the West Virginia law, when there is only constructive service of process by publication, and no appearance by the defendant is strictly a statutory remedy, and in derogation of the rights of the party at common law; and in order to deprive a person of his common-law rights, and make the judgment or decree rendered in such proceedings valid and binding, the requirements of the statute must be strictly complied with.

Where the statute expressly provides 'that no sale of real estate attached shall be made until the plaintiff, or some one for him, shall give bond with sufficient security, in such penalty as the court shall approve, with conditions,' etc. (Code W.Va. 1868, c. 106, Sec. 23), a sale of real estate without such bond being given or required to be given will not only be made without authority from the statute, but against the express and positive command of it and will confer no title upon the purchaser.

Although a court may have jurisdiction of a case, yet, if it appears from the record that it did not have jurisdiction to enter the decree and the particular judgment thereon that it did enter, then that decree and judgment may be collaterally impeached.

Persons claiming title under a purchaser whose title is derived from a decree entered by a court without jurisdiction to enter such a decree are affected with notice of such invalidity of title in their vendor, such invalidity appearing of record and in their chain of title, and such derivative purchasers are proper parties to a bill attacking the decree and the deed made under it.

The decision this court in De Forest v. Thompson, 40 F 375, that a tax deed, made prior to the curative statute of 1882, under a sale in which the requirements of the statute were not complied with, is void, is adhered to and reaffirmed.

There can be no laches in failing to assert rights of which a party is wholly ignorant, and whose existence he had no reason to apprehend.

Except in peculiar cases, the facts of which require a departure from the usual rule, a court of equity will not hold a party guilty of laches within the period that the statute of limitations would not defeat a recovery of land upon the legal title.

Where the invalidity of a tax deed, or a deed under a decree of a court acting without jurisdiction, does not appear on the face of the deed, such invalidity must be made to appear by facts dehors the deed itself; a common-law action does not afford the full and adequate remedy which should be given and a court of equity has jurisdiction of a suit to impeach and annul such a deed.

A bill may be framed with a double aspect, and pray for relief in the alternative, where the statements of fact are not inconsistent; and a demurrer to such a bill, praying for relief in the alternative, and which shows that the plaintiff is entitled to one kind of relief or another, should not be sustained for multiplicity.

Flournoy, Price & Smith, for plaintiffs.

Simms & Enslow and Chapman & Gillespie, for defendants.

JACKSON District Judge.

This case is now being heard upon a demurrer to the bill. It is alleged that the commonwealth of Virginia issued its patent dated on the 29th day of April, 1795, granting Wilson Cary Nicholas a tract of land containing 300,000 acres, lying in the counties of Wythe and Russell. In 1799 the county of Tazewell was formed from the counties of Wythe and Russell. In 1858 the county of McDowell was formed from the county of Tazewell. After the formation of these new counties, the greater part of the 300,000-acre tract was embraced by the boundaries of the county of McDowell, leaving the remainder lying in the county of Tazewell, Va. The bill alleges: That the tract of land was returned delinquent in Tazewell county, Va., for the non-payment of taxes thereon, in the name of Wilson Cary Nicholas, and under an order of the county court of said county made on the . . . day of . . ., 185--, 50,000 acres of the said tract was laid off and surveyed by commissioners for that purpose, and sold for taxes, which was purchased by Kiah Harman, Harvey George, and H. A. Harman. On the 29th day of September, 1853, Samuel L. Graham, clerk of the county court of Tazewell county, conveyed the land by deed to the purchasers, which is recorded in the clerk's office. The bill further alleges: That subsequently, by sundry conveyances from the purchasers and their heirs at law and devisees, the title of the land vested in one James S. French. That on the 27th day of March, 1871, French conveyed to the plaintiffs, by deeds duly recorded, the tract of 50,000 acres of land, with covenants of general warranty. That on the . . . day of . . ., 1871, the plaintiffs conveyed undivided portions of the tract of land, as follows: First, to Alexander McConnell 1,100 acres, common and undivided, being a portion of the 40,000 acres, which was a portion of the 300,000 acres, but, as is alleged in the bill, the 40,000 acres was bounded and described by the same boundaries that bounded and described the 50,000-acre tract; second, to Albert Rinear 1,100 acres, common and undivided, being a portion of the 40,000 acres, which was a part of the 300,000 acres, the boundaries being the same as the 50,000-acre tract; third, to Benjamin D. Wright an undivided one-tenth interest in 40,000 acres in the land owned by Sperry and Ritchie, the boundaries of the 40,000 acres being the same as the 50,000-acres tract. The bill further alleges that McConnell, Rinear, and Wright held undivided interests in 50,000 acres, and were and continued to be tenants in common with your orators, and all persons claiming interests in said lands under your orators, and that, by reason of the co-tenancy existing between the parties, McConnell and Rinear had the right to have laid off and assigned to each of them 1,100 acres of the said 50,000 acres free of all adverse claims, and the said Benjamin D. Wright the right and title to one undivided tenth of the whole 50,000 acres. And it is further alleged that on the 5th day of December, 1877, Daniel H. Harman, acting for the benefit of David G. Sayers, a defendant in this suit, sued out of the circuit court clerk's office of McDowell county, W. Va., an order of attachment against I. P. Sperry and S. J. Ritchie (the plaintiffs), and W. Sperry, partners under the firm name of Sperry, Ritchie & Co., as defendants, which attachment commanded the sheriff to attach the unsold portion of the 50,000-acres tract, belonging to the defendants, lying in said county, on both sides of Dry Fork of Sandy river, conveyed by Thomas S. French and wife to the defendants (now the plaintiffs in this action), which unsold portion contained 37,000 acres, or a sufficient quantity thereof to pay $270.21, with interest on $268.71, part thereof, from the 28th day of March, 1877, until paid, and the remainder without interest, and the costs of the suit, and make return of his proceedings under this order to the next term of the circuit court of McDowell county. The attachment was levied the same day upon the unsold portion of the 50,000 acres, supposed to be 37,000 acres. At February rules, 1878, an order of publication was awarded, stating that the object of the suit was to attach and subject to sale the unsold portion of the tract of 50,000 acres of land of the defendants lying in the county of McDowell, W. Va., on both sides of the Dry Fork of Sandy river, conveyed to them by James S. French and wife, which unsold portion was about 37,000 acres. A lis pendens was also recorded in said county, stating the object of the suit. The bill charges that the plaintiff Harman, acting for Sayers, at the January rules, 1878, filed a bill praying that the unsold portion of the 50,000-acre tract be sold to satisfy plaintiff's debt, costs, etc. The bill further alleges that on the . . . day of May, 1878, a decree was entered reciting the various steps in the proceedings that were taken up to that date, which adjudged that the plaintiffs in that action had a lien by reason of the attachment sued out in the proceedings, and decreed that the defendants (the plaintiffs in this action) pay to the plaintiffs in that action the sum of $303.91, with interest from date and the costs of the suit, and, upon the failure of the defendants to pay within 30 days the sum so decreed, that Henry Harrison, who was appointed a special commissioner, should sell the land in the bill mentioned on a credit of 6 and 12 months, except as to costs of suit and expenses of selling, for which cash might be required, taking from the purchaser bond, with good personal security, for the deferred installments. A further charge in the bill is that the defendants in that suit were not served with process, nor with a copy of the attachment, nor did they ever appear to defend the action. It is also alleged that the plaintiffs did not in that suit give a bond with security, as required by section 23 of chapter 106 of the Code of West Virginia of 1868, with conditions required by the statute. It is further alleged that no bond was given, as required by law, before the commissioner advertised the land described in his advertisement as 'a certain tract or parcel of land in the bill and proceedings mentioned, lying on the Dry Fork and its tributaries, waters of Tug river, and near McDowell court house,' and stating the number of acres as 37,000 acres of valuable land in McDowell county; that at the October term, 1878, the commissioner reported that on the 3d of September, 1878, he sold the tract of land in the bill and proceedings mentioned to the plaintiff D. G. Sayers,...