Rowe v. Kidd

• Court: U.S. District Court — Eastern District of Kentucky
• Citation: Rowe v. Kidd, 249 F. 882 (E.D. Ky. 1916)
• Decision Date: 14 September 1916
• Parties: ROWE et al. v. KIDD et al.

249 F. 882

ROWE et al. v. KIDD et al.

United States District Court, E.D. Kentucky.

September 14, 1916

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

O.H Waddle & Son, of Somerset, Ky., for defendants.

COCHRAN District Judge.

This cause is before me for final decree. It was before me once before therefor, and I dismissed the bill. My opinion then delivered is reported in Rowe v. Hill (D.C.) 196 F 910. On appeal this judgment was reversed. The opinion of the Appellate Court is reported in 215 F. 518, 132 C.C.A. 30. That court, however, did not direct what judgment should be entered. It merely directed that the case should be reopened and heard again. This has been done, and it is upon such rehearing that it is now before me.

On the former hearing I held that the questions as to the validity and location of the patent to J.W. Mills, of date July 13 1858, upon a survey made January 4, 1858, for 100 acres of land in Wayne county, Ky., in this district, involved herein, were res adjudicata, because of the judgment of the Wayne circuit court, affirmed by the Court of Appeals of Kentucky in the case of Alexander v. Hill (Ky.) 108 S.W. 225, and that if they were not, that I would not be justified in deciding the matter differently from the state courts. On the question of res adjudicata I thus expressed myself:

"I do not think there can be any question that the understanding between plaintiffs and their grantor, Alexander, was that he was to defend the land covered by their purchase against that claim as under his covenant of warranty he was bound to do so. It was in pursuance to this understanding that their grantor, Alexander, when the defendant brought her suit in the Wayne circuit court on January 11, 1904, the day before the deed was put to record, asserting her claims against him and J.W. Rowe, took charge of the defense of the suit and controlled and managed it and bore its expense until its determination. Nor have I any doubt of the fact that plaintiffs knew of the pendency of this suit, and that their grantor was defending it, and that they were relying on his defending it pursuant to his understanding with them and in accordance with his covenant of warranty. They so knew and relied, through their attorney, who was on the ground and had full authority to look after the land, if not otherwise. In so doing, therefore, their grantor, Alexander, was acting on their behalf as well as of himself, and they are bound and concluded by the judgment therein. It is not open to them, now that that litigation has resulted in favor of defendant, to come into court and seek to reopen it."

This position was held to be erroneous by the Appellate Court. Judge Sanford, who delivered its opinion, said:

"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."

The cases cited in support of this statement were cases where persons not parties to the suits defended them for the parties defendant, but unknown to the plaintiffs. He further said:

"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 to create such suspicion and not substantial enough to establish the fact."

It is to be noted, in this connection, that it is not said that if plaintiffs knew of the pendency of the suit, and that the defendant Pinkie Kidd, plaintiff therein, had brought before the court "J.W. Rowe" as Alexander's vendee, and that the answer filed in the name of Alexander and Rowe expressly admitted that he was such and with such knowledge kept silent, plaintiffs are estopped to deny their identity with "J.W. Rowe," and hence bound by the judgment rendered against "J.W. Rowe." As the matter is put, in order to this it is essential also that plaintiffs actually participated in the defense of the suit in the name and under the guise of "J.W. Rowe," through the agency of Alexander or by attorney, and through such representative filed the answers. It is clear that they did not so participate. But it is equally clear that they had such knowledge, and with it they took no steps to correct the error, but kept silent in regard thereto. Under the evidence, as it now stands, I think I was in error on my former hearing in holding that Alexander defended the suit pursuant to any understanding with plaintiffs. It is quite likely that there never was any understanding between them as to Alexander's defending any suit in relation to the land.

At the time of plaintiffs' purchase the trespass suit of Alexander against Hill was pending, and the deferring of the payment of part of the purchase money may have been to await the outcome of that suit, and, upon its being determined in Alexander's favor in the December preceding the bringing of the suit by the defendants, the rest of the purchase price was paid, except perhaps for 83 acres, covered by the Mills patent, located according to courses and distances. The defense of the suit by Alexander was because he had warranted the title to the plaintiffs and was bound to defend it. That plaintiffs had such knowledge I think was the reasonable inference from the evidence as it stood on the former hearing and not a mere matter of suspicion. The plaintiff I.W. Rowe admitted that he had heard by letter from his attorney, Mr. Johnson, of the pendency of the suit. Mr. Johnson, therefore, must have known of its pendency. He could not otherwise have written plaintiff I.W. Rowe about it. As soon as he heard of it, as plaintiffs had relied on him in making the purchase, naturally he would at once take steps to ascertain exactly its character. And in determining the truth of things one has the right to take into consideration the way men act. It was convenient for him to find this out, as the suit was pending in an adjoining county, whose courts, no doubt, he attended. The inference that he did so was strengthened by the facts that his letter or letters conveying the information as to the pendency of the suit were not produced, and that Mr. Johnson did not testify as to what he knew concerning the matter. That he was then acting as plaintiffs' attorney in relation to the land was testified to by the plaintiff I.W. Rowe in his testimony. But, however this may be, such knowledge was proven directly on the present hearing by the testimony of Mr. Bertram and Mr. Sharp, who were Mr. Alexander's attorneys in the suit, and Mr. Snyder, Mr. Johnson's partner, he having died since the former hearing. Mr. Bertram testified that shortly after the suit was brought Mr. Johnson was in Monticello, the county seat of Wayne, and had a conversation with him about it, and how it was brought and the parties against whom it was instituted. Upon his (Bertram's) making some suggestion to Johnson about filing the answer or about the answer which had been filed, he then said that the suit had not been filed against his client, and that he knew nothing about J.W. Rowe, and that he would have nothing to do with defending the action. Mr. Snyder testified that Mr. Johnson in his letter to plaintiff I.W. Rowe told him that J.W. Rowe was a party defendant. The situation was not relieved by the request made of Mr. Sharp to have the answer withdrawn and his promise to do so. It was never withdrawn and no pains were taken to see whether the request had been complied with.

Furthermore I am inclined to think that the Appellate Court, on further reflection, would hold that, in order to constitute the estoppel and bind plaintiffs by the judgment, it was not essential that they should have actually participated in the defense of the suit, but that such knowledge and silence on their part alone was sufficient to that end. In the first statement quoted from Judge Sanford's opinion it was held that the judgment was not res adjudicata by reason of the fact that Alexander defended the suit pursuant to an understanding between him and plaintiffs, and, as heretofore stated, the decisions cited in support of this position were cases where persons not parties to the suit had actually participated in its defense without plaintiff's knowledge. And the typical instance of estoppel in pais is not where a party acts, but where he keeps silent when he should have spoken. It is hardly open to question that plaintiffs' conduct in allowing the defendant to proceed under the...