Rowe v. Hill

• Decision Date: 15 May 1914
• Docket Number: 2412.
• Parties: ROWE et al. v. HILL et al.
• Court: U.S. Court of Appeals — Sixth Circuit

215 F. 518

ROWE et al. v. HILL et al.

No. 2412.

United States Court of Appeals, Sixth Circuit.

May 15, 1914

H. C Gillis and J. B. Snyder, both of Williamsburg, Ky., for appellants.

O. H Waddle, of Somerset, Ky., for appellees.

Before KNAPPEN and DENISON, Circuit Judges, and SANFORD, District judge.

SANFORD District Judge.

This suit was brought by the plaintiffs, I. W. Rowe and Hannah Rowe, his wife, citizens of West Virginia, by bill in equity against five citizens of Kentucky, of whom Pinkie Kidd, wife of Sam Kidd, hereinafter called the defendant, is the real party in interest, to remove an adverse claim of the defendant as a cloud upon the plaintiff's title to a tract of land in Wayne County, Kentucky, of the requisite jurisdictional value.

The plaintiffs claim title under patents issued to one Alexander in 1880 and 1881. The defendant claims under a patent issued to one Mills in 1858, which, being senior to the Alexander patents, is admittedly superior thereto to the extent to which it may be properly located within their boundaries. The Mills patent calls on its face for only one hundred acres but if located according to the defendant's contention contains about six hundred and fifty acres. The extent of the conflict between these patents, involving the question of the location and extent of the Mills patent, is the underlying question in controversy. By a judgment of the Circuit Court of Wayne County, Kentucky, in a former suit of Alexander et al. v. Hill, which was affirmed by the Court of Appeals of Kentucky, and which is relied on by the defendant as a bar to the present suit, the location and extent of the Mills patent was adjudged in accordance with her present contention.

The court below, after a hearing on pleadings and proof, was of opinion that the plaintiffs were estopped from claiming that the true location of the Mills patent is not as adjudged in said former suit, and that, even if such location were still an open question, it would not be justified in deciding the matter differently from the state courts; and hence dismissed the plaintiffs' bill with costs; from which decree the plaintiffs have appealed to this court.

The following facts are undisputed in reference to the former judgment in the case of Alexander et al. v. Hill.

By warranty deed, dated November 1, 1903, and acknowledged November 22, 1903, Alexander, the patentee in the above mentioned junior patents, conveyed them to the plaintiffs, Rowe and wife, who were then citizens and residents of West Virginia. This deed was lodged for record in the county court clerk's office on January 12, 1904. While proven by a certified copy, the original was shown to be in the possession of the plaintiffs. The inference from the testimony is that it was delivered to them at least a month before its lodgment for record. And, under the great weight of authority, in the absence of proof to the contrary, it must be presumed to have been delivered on the day it bears date. Land Co. v. Hilton, 121 Tenn. 308, 321, 120 S.W. 162; Raines v. Walker, 77 Va. 92, 93; and cases cited. And see Goodlett v. Goodman Co. (6th Circ.) 192 F. 775, 113 C.C.A. 61.

On January 11, 1904, after the delivery of this deed, but before its lodgment for record, the defendant Pinkie Kidd, then Pinkie Hill, claiming to be owner of the Mills patent by mesne conveyances from the patentee, filed a petition in equity in the Circuit Court of Wayne County to quiet her title to this patent, against Alexander, the patentee under the junior patents, and one 'J. W. Rowe,' described as a citizen and resident of Mahaney City, Pennsylvania, to whom it was alleged Alexander had conveyed a portion of the land by an unrecorded deed. On the same day summons issued for Alexander, which was served February 1, 1904. On January 25, 1904, a warning order was issued for the defendant 'J. W. Rowe.' Apparently, however, this order was not based upon the affidavit required by sec. 58 of the Kentucky Civil Code, and no report was filed by the warning order attorney, as required by sec. 59 of said code. On March 17, 1904, an answer was filed in the name of Alexander and 'J. W. Rowe,' which was signed 'Alexander and Rowe,' by their attorneys, in which the defendants admitted that Alexander had conveyed a part of the land covered by his patents to 'his co-defendant, J. W. Rowe,' who then claimed to be the owner thereof. Alexander having subsequently died, an attempt was made to revive the cause against his widow and heirs, some of whom were proceeded against by a warning order without proper affidavit. An order of revivor having been entered, a trial was had, resulting in the entry of a judgment adjudging the present defendant, then Pinkie Hill, to be the owner of the Mills patent, locating its boundaries as now claimed by her, and quieting her title to such boundary as against the defendants. On an appeal taken by the defendants this judgment was affirmed by the Court of Appeals of Kentucky. Alexander v. Hill, 108 S.W. 225, 32 Ky.Law Rep. 1148 (not officially reported).

The plaintiffs are not, however, bound by said former judgment, as actual parties thereto; the warning order against 'J. W. Rowe,' a citizen and resident of Pennsylvania, being insufficient to bring before the court I. W. Rowe, a citizen of West Virginia, even if the proceedings had been otherwise regular, and no steps at all having been taken to make Hannah Rowe a party. They are not bound by said judgment as privies in estate with either Alexander, his widow or his heirs, even if the judgment rendered after Alexander's death can be regarded as valid, since the deed from Alexander to them had been delivered before the institution of the suit. Dull v. Blackman, 169 U.S. 243, 18 Sup.Ct. 333, 42 L.Ed. 733; Cook v. Lasher (4th Circ.) 73 F. 701, 704, 19 C.C.A. 654; Carroll v. Goldschmidt (2d Circ.) 83 F. 508, 509, 27 C.C.A. 566; Lynch v. Burt (8th Circ.) 132 F. 417, 428, 67 C.C.A. 305; Ingersoll v. Jewett, 16 Blatchf. 378, 13 Fed.Cas. 45; Allin v. Hall, 1 A.K.Marsh. (Ky.) 525, 527; 23 Cyc. 1253, 1257. Neither are they bound by said judgment by reason of the fact that their deed was not recorded until after the commencement of the suit, since, apart from the disputed question as to whether a vendee under a prior unrecorded deed is bound as a purchaser pendente lite (25 Cyc. 1480, 21 Am. & Eng. Enc. Law (2d Ed.) 650), their deed was lodged for record before the lis pendens began by the service of process upon Alexander. County of Warren v. Marcy, 97 U.S. 96, 106, 24 L.Ed. 977; Pitt v. Rodgers (9th Circ.) 104 F. 387, 390, 43 C.C.A. 600; McClaskey v. Barr (C.C.) 48 F. 130, 133; Wheeler v. Walton Co. (C.C.) 65 F. 720, 722; Wickliffe v. Breckenridge, 64 Ky. (2 Bush) 427, 443; Staples v. White, 88 Tenn. 30, 31, 12 S.W. 339; 25 Cyc. 1463; 21 Am. & Eng. Enc. Law (2d Ed.) 610. Nor are they bound by said judgment, even if, as found by the court below, the defense made by Alexander to the suit was made both for himself and them, in pursuance of an understanding and agreement with them, since, whatever may have been Alexander's action in that regard it was not open and known to the other party; and the estoppel arising by reason of assuming the defense of a suit must, as in other cases, be mutual. Lane v. Welds (6th Circ.) 99 F. 286, 288, 39 C.C.A. 528; Andrews v. Pipe Works (7th Circ.) 76 F. 166, 173, 22 C.C.A. 110, 36 L.R.A. 139; Cramer v. Manufacturing Co. (9th Circ.) 93 F. 636, 637, 35 C.C.A. 508; Hanks Assoc'n v. International Co. (2d Circ.) 122 F. 74, 75, 58 C.C.A. 180; 23 Cyc. 1250. It is true that if the plaintiffs knew of the pendency of said suit, and, either through the agency of Alexander or by attorney, actually participated in its defense in the name and under the guise of 'J. W. Rowe,' and through such representative filed the answer in such name in which it was admitted that Alexander had made a conveyance to such 'J. W. Rowe,' thereby misleading the defendant as to the name and identity of the purchaser and causing her to fruitlessly pursue her litigation against such fictitious vendee, they would now, in our opinion, be estopped from denying their identity with 'J. W. Rowe' as Alexander's vendee, and would, by reason of such estoppel, be bound by the judgment rendered against 'J. W. Rowe' in the former suit, as if they had actually been parties. However, while the circumstances are such as to create a suspicion that the facts were as above suggested, yet, after careful consideration of the meager evidence in the record, especially in default of the testimony of either of the attorneys who represented 'Alexander and Rowe' in the former suit, one of whom apparently died before proof was taken, we are constrained to conclude that the evidence is sufficient only to create such suspicion and not substantial enough to establish the fact.

We hence must hold, upon the evidence in the record, that plaintiffs, not having been actually parties to the former suit, not being estopped from denying that they were parties, and not being privies in estate with Alexander, either as purchasers pendente lite or otherwise, are not now bound by the former judgment in said cause or estopped from contesting the location of the boundaries of the Mills patent as therein determined.

The defendant, on the other hand, is not estopped from claiming that the Mills patent is to be located in accordance with said former judgment, by reason of an earlier judgment, upon which the plaintiffs rely, in an action for trespass in cutting timber, brought by Alexander in 1902 against one John Hill, who is claimed to have been the equitable owner of the Mills patent, since, apart from other questions, it does not appear from the record in said trespass suit that the...