Whitehouse v. Jones

• Decision Date: 27 November 1906
• Parties: WHITEHOUSE et al. v. JONES et al.
• Court: West Virginia Supreme Court

55 S.E. 730

60 W.Va. 680

WHITEHOUSE et al.

v.JONES et al.

Supreme Court of Appeals of West Virginia.

Nov. 27, 1906.

1. Quieting Title — Jurisdiction — Remedy by Ejectment.

One in actual possession of land under superior title may go into a court of equity to remove the cloud over his title arising from a claim under color of title thereto by another under an inferior adverse title. That he might sue in ejectment does not deny him jurisdiction in equity.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Quieting Title, § 9.]

2. Same.

When, in a contest in ejectment between two adversary titles to land, judgment has been rendered in favor of one of them, and the claimant of the adversary title still claims notwithstanding the judgment against him, and disquiets the actual possession of the successful owner, the latter may go into a court of equity to have injunction and relief, proper in the case, to quiet and give peace to his title and possession.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Quieting Title, § 4.]

3. Same—Relief Given—Injunction.

Equity, having jurisdiction to remove cloud over title to land and quiet title, may, as in-cident to relief, enjoin the cutting of timber by the claimant under the bad title.

4. Appeal—Objections not Raised Below.

An exception to the taking of a deposition, made while it is in progress, though noted in the deposition, must be brought to the notice of the court before hearing on the merits begins below by motion to suppress, else it will not be regarded in an appellate court.

5. Cancellation of Instruments—Void Instrument.

Equity has jurisdiction to cancel an instrument of title to land at the suit of one in possession under good title, though such instrument be void on its face.

[Ed. Note.—For cases in point, see Cent Dig. vol. 8, Cancellation of Instruments, § 1J

(Syllabus by the Court.)

Appeal from Circuit Court, Putnam County.

Bill by W. F. Whitehouse and others against R. A. Jones and others. Decree for plaintiffs, and defendant Mary Patton Hudsou appeals. Affirmed.

Simms & Enslow, for appellant.

Brown, Jackson & Knight and J. II. Nash, for appellees.

BRANNON, J. A grant from the state of Virginia, March 3, 1796, to Samuel Hollingsworth, for 100, 000 acres of land in Kanawha county. Title under this grant came to Mathias Bruen, and at his death it was partitioned among his devisees; the partition deeds dating May 16, 1850, under the decree. One of the lots In this partition was of 2, 500 acres, In Putnam county, which came to the ownership of the plaintiffs in this suit, the Whitehouses. The Hollingsworth grant excludes three prior grants of tracts of 300, 400, and 500 acres, and in the assignment of said 2, 500-acre tract in said partition deed such parts of said 300 and 500 acre prior grants as lie within the bounds of the 2, 500-acre tract, as also 50 acres surveyed for Michael Shiverdeeker, were excluded. No forfeiture for taxes of the 2, 500-acre tract or the 100, 000-acre tract, of which it is a part, arises. There were four Lockhart surveys antedating the Hollingsworth grant, the three mentioned above, and one of 200 acres; but the 200-acre one is not excluded by said grant or said assignment of the 2, 500-acre tract. It lies nearly all in the 2, 500-acre tract. The said four prior Lockhart grants became forfeited to Virginia for taxes, and Henry O. Middleton obtained a grant from the state of West Virginia, February 23, 1865, for a tract of 1, 137 acres in Putnam county, intending, likely, to rest his title on the forfeiture of the Lock-hart title. This Middleton grant takes in part of the Lockhart tracts of 200, 300, and 500 acres, but none of the 400 acres, and takes In a large part of the 2, 500-acre tract claimed by the plaintiffs. Benjamin P. Byram purchased of Middleton a half interest in the 1, 137 acres, but Robert Patton became purchaser of the Byram half by executory contract Benjamin P. Jones is a grandchild and David Jones a son of Benjamin Byram. Martha Ann is the wife of David Jones. They are devisees under Byram's will. The legal title to the Byram share is in his said heirs or Middleton. Middleton's administrator c. t a. conveyed to Robert Patton the Middleton half, Patton thus becoming owner of it all, and it passed from him by conveyance to Nancy Patton, and from her to her two children, Mary Patton Hudson and Oliver Patton. This Midd}eton tract was sold in 1877 for delinquency for taxes, but in 1882 was redeemed from this sale In a proceeding by the commissioner of school land for its sale by payment of taxes to the year 1881, inclusive. This land was left off the taxbooks for more than five years after the year 1881, and thus was forfeited to the state, and R. A. Jones and Mary P. Hudson asked the commissioner of school lands of Putnam county to institute a suit to sell the land (788 acres of the Middleton, still claimed by them) in order that they might redeem, and the commissioner did institute suit, and Jones, Hudson, and Patton filed an answer admitting the forfeiture and asking to be allowed to redeem, and an order was made allowing them to pay taxes for five years, and directing the land to be put on the landbook on payment of the money for redemption, though no amount was fixed. The money was not paid in redemption before this suit was brought This proceeding was begun and concluded on the same day, without notice to any one or reference to a commissioner, as required by the Code In such a proceeding.

In 1877 Robert Patton, J. W. Heavener as administrator with the will annexed of Henry O. Middleton, and Benjamin P. Jones, David Jones, and Martha Ann Jones, the last three as devisees under the will of Benjamin P. Byram, brought an action of ejectment in the circuit court of Putnam county against Russell Landers, George R. Crago, James Marten, William Carter, Albert Dean, and George Landers to recover the tract of 1, 137 acres. An order shows that in the action W. F. Whitehouse, H. B. Whitehouse (since dead), F. M. Whitehouse, F. C. Whitehouse, E. N. Whitehouse, and Louisa Whitehouse, recited as landlords of Carter and Crago, defendants in the ejectment, were made defendants In said action along with their lessees, and pleaded not guilty. They are owners of the 2, 500 acres under said partition. On the trial verdict and judgment were rendered for the defendants. When Jones, Hudson, and Patton procured the order of redemption above mentioned, the owners of said 2, 500-acre tract, W. F. Whitehouse, F. M. Whitehouse, E. N. Whitehouse, and Louisa Sheldon, nee Louisa Whitehouse, claiming said 2, 500 acres, brought this suit in equity in the circuit court of Putnam county against R. A. Jones, Mary P. Hudson, Oliver A. Patton, and others, alleging the superiority oftheir title over that of the defendants, stating that the plaintiffs had been in possession and paid taxes since 1865 and that defendants were not in possession, and stating that the defendants by said redemption proceeding, by offering the contested land for sale and lease, by disturbing the plaintiffs' tenants on the land, by notifying them that they owned and claimed the land, and by entering upon the land and cutting timber needed for the development of coal from the land, were casting cloud and doubt over the title, and praying that the grant to Middleton of said 1, 137 acres be held invalid as against the title of the plaintiffs and be removed as cloud over the same, and that the defendants be enjoined from asserting title to the plaintiffs' land under said Middleton title, and that an injunction be awarded restraining the defendants from taking possession of the land and cutting timber upon it, and from in any way interfering with the quiet and exclusive possession of the land by the plaintiffs, and from taking any steps to redeem the land under the decree above mentioned allowing such redemption. The defendants demurred to the bill, but the court overruled it. They filed an answer. The decree perpetually enjoined the defendants from taking possession or cutting timber on the land, or in any manner interfering with the quiet and exclusive possession of the plaintiffs, and from taking further steps by payment of money or otherwise to redeem the lands under the order giving leave to redeem, and from entering the land on the lawbooks, and holding the Middleton grant for the 1, 137 acres invalid and of no force as against the title of the plaintiffs to the land in controversy. Mary Patton Hudson appealed.

Equity jurisdiction: This is the first question. An argument against it is that the plaintiffs should have gone into the proceeding brought by the state to sell the Middleton land as forfeited, and set up their claim, and resisted redemption, instead of bringing an Independent suit. But that was begun and ended by final decree of redemption In one day. R. A. Jones, Mary P. Jones, and Oliver Patton, claimants of the Middle-ton land, filed a petition with the commissioner of school lands, admitting forfeiture and asking him to bring suit to sell the land, in order that they might redeem, and he filed a petition, they answered, and a decree allowing redemption upon payment of only five years' taxes, when much more was due, was made. The proceeding was so irregular and informal as hardly to be called a suit. No process, no parties, no adequate description of the land or title, no reference to a commissioner, no order of publication to afford interested persons any notice of the proceeding, and the whole done and closed, from beginning to end, in one day. It was so contrary to the requirements touching such a proceeding in chapter 105, Code 1899 [Code 1906, p. 1396], as to be considered a void proceeding. The bill In the present case brands it as a fraud upon the court and as designed to get a secret and fraudulent redemption, and the facts seem to warrant the charge. But, in any view, how can it be said that the Whitehouses ought to have gone into that suit when...