Virginia & West Virginia Coal Co. v. Charles

• Decision Date: 10 October 1918
• Docket Number: 1605.
• Citation: Virginia & West Virginia Coal Co. v. Charles, 254 F. 379 (4th Cir. 1918)
• Parties: VIRGINIA & WEST VIRGINIA COAL CO. v. CHARLES.
• Court: U.S. Court of Appeals — Fourth Circuit

254 F. 379

VIRGINIA & WEST VIRGINIA COAL CO. v. CHARLES.

No. 1605.

United States Court of Appeals, Fourth Circuit.

October 10, 1918

[Copyrighted Material Omitted]

S. B Avis, of Charleston, W.Va. (J. L. Jeffries, of Norfolk, Va on the brief), for plaintiff in error.

Barnes Gillespie and William H. Werth, both of Tazewell, Va. (E. M. Fulton, of Wise, Va., G. W. St. Clair, of Tazewell, Va., C. C. Burns, of Lebanon, Va., G. E. Penn, Jr., of Bristol, Va., Hager & Stewart, of Ashland, Ky., Chase & Daugherty, of Grundy, Va., and Chapman, Peery & Buchanan, A. S. Higginbotham, and Greever, Gillespie & Divine, all of Tazewell, Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

On January 14, 1915, the Virginia & West Virginia Coal Company commenced this action of ejectment against Green Charles and about 1,250 other defendants for 146,109 1/4 acres of land called the 'Hagan Survey' or 'Pearson Survey,' excepting from its claim, however, 11 described tracts lying within the boundaries set out.On the plea of not guilty the District Court by consent tried without a jury the issue of title to the particular tract claimed by the defendantGreen Charles, containing 673.52 acres, and found in favor of the defendant.

The plaintiff's claim of title was as follows:

(1) Patent, November 16, 1795, from state of Virginia to Richard Smyth and Henry Banks, for 200,000 acres.

(2) Tax deed, November 3, 1823, from W. D. Taylor, collector of direct taxes of United States, to Wm. Lamb, of 200,000 acres of Richard Smyth and Henry Banks.

(3) Will of Wm. Lamb, probated March 5, 1827.

(4) Deed, Lamb's executor to Joseph Hagan and Sarah Purcell.

(5) Deed, February 7, 1839, Sarah Purcell to James Culbertson.

(6) Decree of circuit court, October 6, 1856, in case of Joseph Hagan v. James Culbertson, directing commissioners to convey to Hagan interest of Culbertson.

(7) Deed, August 6, 1857, Morrison, commissioner, to Joseph Hagan.

(8) Deed, April 4, 1871, Joseph Hagan to Patrick Hagan.

(9) Deed, November 8, 1883, Patrick Hagan to Frederick Pearson.

(10) Tax deed, February 17, 1905, Dennis, clerk, to Buchanan Company of lands bought by state for delinquent taxes of Frederick Pearson.

(11) Deed, Buchanan Company to Virginia & West Virginia Coal Company, April 2, 1914.

Defendant's claim of paper title was as follows:

(1) Patent, May 1, 1861, state of Virginia to Silas Ratliff.

(2) Deed, December 8, 1896, Ratliff's heirs to Margaret Justice.

(3) Deed, May 24, 1910, John W. and Margaret Justice to Green Charles.

The defendant also claimed by adverse possession.

Every finding of fact made by the District Court, having reasonable support in the evidence and tending to support the judgment, is binding on this court.

We consider, first, whether any error of law entered into the finding of the District Court that the plaintiff failed to connect itself with the patent of 1795 to Richard Smyth and Henry Banks.There was no sufficient extraneous evidence of the execution of a valid tax deed by Taylor, collector, to Wm. Lamb.To make this connection it was necessary to establish the validity of the tax deed of 1823 to Wm. Lamb; and on this point it is earnestly contended that under the following statute of Virginia the tax deed is itself prima facie evidence that all provisions of law requisite to its validity were complied with:

'An act to prescribe the effect as evidence to be given to deeds recorded prior to the year 1865.Approved March 13, 1912.

'1.Be it enacted by the General Assembly of Virginia, that in every action at law or suit in equity, in which it shall appear that a deed or other writing, which constitutes a part of the chain of title to any lands has been made by an officer or other person, purporting to act under the provisions of any statute or decree, authorizing or providing for a sale or conveyance of real estate, and that said deed was duly recorded in the proper clerk's office prior to the year eighteen hundred and sixty-five, and that the record or evidence, or some parts thereof of the proceedings under or pursuant to which such sale, deed or other writing was made, has been lost or destroyed, or cannot be produced, the said deed or other writing, or a certified copy thereof, taken from said record, shall be prima facie evidence of the fact that all provisions and requirements of such statute or decree were duly complied with in the making of such sale, deed or other writing as well as the power or authority of such officer or other person to make and execute the same, and of the due execution thereof by him.' Laws 1912, c. 235.

A repealing statute was passed March 14, 1914, in these words:

'Be it enacted by the General Assembly of Virginia, that an act * * * to prescribe the effect as evidence to be given to deeds recorded prior to the year eighteen hundred and sixty-five, approved March 13, 1912, be and the same is hereby repealed. 'Laws 1914, c. 100.

The repeal did not take effect until ninety days after its enactment.The conveyance of Buchanan company was made to plaintiffApril 2, 1914, after the repealing statute was enacted, but before it went into effect.The argument is that the act of 1912 conferred a substantive right on those claiming under the old deeds referred to in the statute to such deeds as prima facie valid, and that the repealing statute could not have the effect of taking away that substantive right.To sustain this position, the plaintiff relies on section 6 of Code of 1904, which provides:

'No new law shall be construed to repeal a former law, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued, or claim arising before the new law takes effect; save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings; and if any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, with the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.'

As there is no vested right in rules of evidence, the general principle is that the obligation of a contract is not impaired, nor due process of law nor the equal protection of law denied by a statute making a fact proved presumptive evidence of another.This statement of the rule and its limitation has been adopted by the Supreme Court:

'That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. 'Mobile, etc., R.R. Co. v. Turnipseed, Adm'r,219 U.S. 35, 31 Sup.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, Ann. Cas. 1912A, 463.

Statutes making tax deeds prima facie evidence of the legality of the proceedings under which they were made, and other like statutes, have been universally sustained.Marx v. Hanthorn,148 U.S. 172, 13 Sup.Ct. 508, 37 L.Ed. 410;Turpin v. Lemon,187 U.S. 51, 23 Sup.Ct. 20, 47 L.Ed. 70;Leigh v. Green,193 U.S. 79, 24 Sup.Ct. 390, 48 L.Ed. 623;Mobile, etc., R.R. Co. v. Turnipseed, Adm'r,219 U.S. 35, 31 Sup.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, Ann. Cas. 1912A, 463;Bailey v. State of Alabama,219 U.S. 219, 31 Sup.Ct. 145, 55 L.Ed. 191;Lindsley v. National Carbonic Gas Co.,220 U.S. 61, 31 Sup.Ct. 337, 55 L.Ed. 369, Ann. Cas. 1912C, 160;Reitler v. Harris,223 U.S. 437, 32 Sup.Ct. 248, 56 L.Ed. 497;Meeker v. Lehigh Valley R.R. Co.,236 U.S. 412, 35 Sup.Ct. 328, 59 L.Ed. 644, Ann. Cas. 1916B, 691.

Since the Legislature may create the presumption where it did not before exist, it may by a repealing statute destroy the presumption, and thus deprive of its aid persons who entered into contracts relying on the statutory presumption to establish the claims acquired.

Applying these rules, if the action had been tried while the act of 1912 was in force, it would not have availed the defendant in possession of the land in dispute under a junior grant to say that he took his grant and paid the purchase money after ascertaining that no evidence of the validity of the proceedings under which this land was sold for taxes could be produced.On the other hand, the plaintiff acquired the rights of the grantee under the tax deed charged with notice that the presumption created by the act of 1912 was a mere rule of evidence, that it did not inhere in the title deed, and that in purchasing it took the risk of the destruction of the presumption as evidence by the legislative authority which created it.

The only serious question therefore on this branch of the case is, Was the presumption created by the act of 1912 saved to the plaintiff by section 6 of the Code of 1904, above quoted, notwithstanding the repeal of the act of 1912 by the act of 1914?

'Rights accrued and claims arising under the former law' protected by section 6 from the effect of a repeal, are substantive rights and claims.Rules of evidence are 'proceedings,' as distinguished from such rights and...