Wilder v. United States

• Decision Date: 06 February 1906
• Docket Number: 559.
• Citation: 143 F. 433
• Parties: WILDER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F. 433

WILDER et al. v. UNITED STATES.

No. 559.

United States Court of Appeals, Fourth Circuit.

February 6, 1906

The first count of the indictment in this case reads as follows:

'Indictment.

'United States of America, Southern District of West Virginia-- ss.:

'In the District Court of the United States in and for the Southern District aforesaid at the April term thereof A.D. 1903, at the city of Huntington, West Virginia.

'The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid of the court aforesaid on their oaths, do present, charge, and say:

'That heretofore, to wit, on the 21st day of April, 1902, one V. A. Wilder, whose name is unknown to the grand jurors aforesaid otherwise than V. A. Wilder and one Daniel Justus did, in the county of Kanawha, in the Southern District of West Virginia, and within the jurisdiction of said court, unlawfully, knowingly, corruptly, fraudulently and feloniously conspire,

combine, confederate and agree together to commit an offense against the United States, in this, to wit:

'That on said last-named day, and for a long time prior thereto, and ever since there was and has been pending and undetermined in the Circuit Court of the United States for the Western District of the state of Virginia, in the Fourth judicial circuit, a certain action at law in ejectment in which the matter in dispute exceeds, and has always exceeded, exclusive of interest and costs, the sum and value of two thousand dollars, and which the said Circuit Court then and there and during the times aforesaid had and still has the lawful and proper jurisdiction to hear and determine, and which action in ejectment one Henry C. King, a citizen of the state of New York, instituted in said court against Henry C. Stuart, a citizen of the said state of Virginia, for the recovery of an estate in fee simple and the possession of certain land lying in the county of Buchanan, in said state of Virginia, which said county of Buchanan, before and at the time of the institution of said action in ejectment, and ever since was, has been and now is within and a part of the said Western District of the state of Virginia, and which land so sought to be recovered by said King in said action in ejectment was, at the time of the institution of said action and ever since has been claimed by said King to be a part of the land granted to one Robert Morris by the commonwealth of Virginia by patent dated the 23rd day of June, 1795, being as so claimed by said King that part thereof which lies in the said county of Buchanan. That at the time of the institution of said action in ejectment the said Stuart claimed, and has ever since claimed, an estate in freehold in and to certain lands in said county of Buchanan, which the said King at the time of the institution of said action in ejectment claimed, and has ever since claimed to be partly within the boundaries of the land set out and described in the said patent from the commonwealth of Virginia to the said Robert Morris, but how much of the land so claimed by the said Stuart is within the boundaries of the land set out and described in said patent and the true location of the boundaries of the land embraced in said patent were, at the time of the institution of said action in ejectment and ever since have been matters in dispute and controversy of more than two thousand dollars in value, exclusive of interest and costs in said action in ejectment between the said King and said Stuart.

'That in the declaration filed by said King in said action of ejectment is set out the location as claimed by him of the boundaries of the land embraced in said patent which includes a large part of the land so claimed by said Stuart, and the said Stuart has always, since the institution of said action in ejectment, claimed and still claims, that the location of the boundaries of the land embraced in said patent as set out by the said King in his said declaration is not the true location and that the true location of the boundaries of the land embraced in said patent would include a much smaller quantity of the land so claimed by said Stuart than is embraced by the location thereof claimed as aforesaid by the said King in his said declaration. That the said action in ejectment was so instituted by the said King against the said Stuart for the purpose of establishing title in fee in said King to the land embraced in said patent which lay in the said county of Buchanan, and to recover from the said Stuart that part of the land so claimed by him, which the said King claimed as aforesaid to be within the boundaries of the land embraced in said patent, and that at the time of the institution of said action in ejectment and ever since the said King claimed and has claimed to be the owner in fee-simple estate and entitled to the possession of that part of the land embraced in said patent which lies in the said county of Buchanan and according to the location thereof as set forth in his said declaration. That shortly after the institution of said action in ejectment, and long prior to the 21st day of April, 1902, to wit, at rules held in the clerk's office of said court on the first Monday in January, 1898, the said Stuart appeared to said action in ejectment, and the said Stuart shortly after the institution of said action of ejectment and long prior to the 21st day of April, 1902, to wit, at rules held in the said clerk's office as aforesaid and at the June term, 1898, of the said court by proper plea interposed in his behalf put in issue the right of the said King to recover in said action in ejectment the land so sought to be recovered by him therein, and said issue has ever since remained between the said King and the said Stuart as a matter in controversy between them to be tried and determined in and by the said Circuit Court of the United States for the Western District of the state of Virginia, and said issue now remains pending and undetermined in said court, and that ever since said action in ejectment was instituted in said court, the said Stuart has controverted and denied and still controverts and denies the right of the said King to recover therein the land so sought to be recovered by him therein as set out in his said declaration, and that said action in ejectment is still pending and undetermined in said court, and that at the time of the institution of said action of ejectment the said King was a citizen of the state of New York and the said Stuart a citizen of the state of Virginia, and they have ever since been citizens of different states, and that at the time of the institution of said action in ejectment and ever since the said Circuit Court of the United States for the Western District of the state of Virginia has had the due and lawful jurisdiction to hear and determine all matters in controversy in said action in ejectment between the said King and the said Stuart and still has such jurisdiction. That the said patent dated the 23rd day of June, 1795, from the commonwealth of Virginia to Robert Morris in describing the land granted thereby designates one of the corners of the said land as, and states the name to be 'three poplars and a sugar tree by a small branch of Knox creek.' That ever since said action of ejectment was instituted it has been and now is material and important to said Stuart and of great value to him in defending said action in ejectment, and in contesting the location of the boundaries of the land embraced in said patent as claimed by said King, and set forth in his said declaration, and to show that of the land so claimed by said Stuart a much less quantity is within the boundaries of the land embraced by said patent than is claimed by said King in said declaration and to establish the true location of said boundaries, to show and prove in any trial in said action that said corner so designated as 'three poplars and a sugar tree by a small branch of Knox creek' was located near what is known as the Race Fork of Knox Creek in said Buchanan county, the said Race Fork being a small branch of Knox Creek, and that ever since the institution of said action of ejectment it has been and now is material and important and of great value to the said King in order to recover in said action the lands sought to be recovered therein by him as aforesaid, to show and prove in any trial in said action that said corner so designated as aforesaid was not located on or near said Race Fork of Knox Creek. That certain persons residing in said county of Buchanan, to wit: Riley Lester, William A. Lester, Miles Lester, Andrew Baker, George Childers, Jacob Lester, John Charles, Hiram Smith, Calvin Lester, and the said Daniel Justus had many years prior to the 21st day of April, 1902, to wit: seven years prior thereto seen certain marked poplar trees not over three in number, and a marked sugar tree, standing near together, and near said Race Fork of Knox Creek, in said Buchanan county, and within a short distance, to wit: 400 feet of the house where the said Daniel Justus resided on said 21st day of April, 1902, and were so marked as seen by said persons as to indicate that they were corner trees and might be corner trees of the land embraced in said patent. That said marked trees had long prior to said 21st day of April, 1902, to wit: six years prior thereto, been cut down and destroyed. That the evidence and testimony which said persons who saw said marked trees could give in relation thereto would be material and important, and of great value to said Stuart in any trial of said action of ejectment to show and prove that said marked trees were the corner in whole, or in part, which was described in said patent as aforesaid as 'three poplars and a sugar tree by...